On July 10, 2015, in Bartow HMA v. Edwards, the Second District Court of Appeals held that reports relating to attorney requested external peer review did not fall within the ambit of Amendment 7 and are privileged.
In Edwards, the plaintiff filed a medical malpractice case involving a bile duct injury which occurred during gallbladder surgery. During discovery, the plaintiff requested that the hospital produce all documents relating to the investigation or review of the physician’s care of any patient and all documents pertaining to the investigation or review of her treatment or care for the five years prior to the surgery. The hospital responded to some of the requests and filed objections and privilege logs as to other items. Among the documents that the hospital maintained were privileged were reports pertaining to attorney-requested external peer review.
The trial court conducted a hearing and determined that Amendment 7 preempted the privilege. The hospital filed a petition for certiorari review of the order on the issue of producing documents relating to external peer review.
The Second District first considered whether the reports were made in the ordinary course of business. It determined that since the reports were created by an expert hired for litigation reasons they were not made or received in the course of business.
Next, the court analyzed the term “adverse medical incident.” The Second District Court found that the external review company was reviewing specific incidents in anticipation of litigation because they included expert opinions at the request of counsel. Under this analysis, the court determined that external peer review reports did not fall under Amendment 7 and were protected from being discovered.
In a second case considering a similar issue, on October 28, 2015, the First District Court of Appeals held that Amendment 7 is preempted by the federal Patient Safety and Quality Improvement Act. In Southern Baptist Hospital of Florida, Inc. v. Charles, the plaintiff sued for medical negligence related to a neurological injury suffered by his sister, Marie Charles. During discovery, the plaintiff requested documents from the hospital related to adverse medical incidents that had occurred at the hospital during the three years prior to the injury at issue in the lawsuit. The hospital produced certain documents, including two occurrence reports specific to Marie Charles’s care along with Annual Reports prepared pursuant to Florida Statute section 395.0197(6) and Code 15 Reports prepared pursuant to Florida Statute section 395.0197(7). However, the hospital refused to produce other occurrence reports, which it claimed were privileged and confidential under the federal Patient Safety and Quality Improvement Act of 2005 (the Act).
In a series of three orders, the trial court ordered the production of all the requested reports finding that the reports were created with the “dual purpose” of satisfying Amendment 7 record keeping requirements as well as collecting patient safety data under the Act. The trial court reasoned that the reports lost their privilege under the Act because they fell under the exception enumerated in 42 U.S.C. section 299b-21(7)(B)(iii) for compliance with state law record keeping obligations. The trial court held that only information collected solely for the purpose of reporting under the Act could be protected from disclosure in litigation.
The First District disagreed with the trial court, holding that the Act does not provide for disclosure of documents maintained for a “dual purpose.” In the opinion, the court noted that while the hospital might be required to collect certain patient safety information under state law, that information remains privileged under the Act unless and until it is actually reported to the State. The First District held that the disclosure requirements of Amendment 7 were thus expressly and impliedly preempted by the Act.
These cases are certainly wins for Patient Safety Organization protections and external peer reviews.