The last year saw the Florida Supreme Court issue a second opinion – West Florida Regional Medical Center v. See – construing the scope and application of Florida’s “Patients’ Right to Know” constitutional provision. As most in the health care industry in Florida know very well, in 2004 the voters of Florida amended the state constitution at the behest of the medical malpractice plaintiffs’ bar, providing themselves with a right of access to previously confidential records of “adverse medical incidents” maintained by health care providers. Because it was, incredibly, the seventh constitutional amendment on the ballot that year, it has come to be known as “Amendment 7” and the name has stuck even after the constitutional provision took its place as article X, section 25 of the Florida Constitution.
In the nine years since the adoption of Amendment 7, both Florida and federal courts have dealt with a multitude of challenges testing the validity, construction, and interpretation of Amendment 7. Sadly for the health care industry, but happily for the plaintiffs’ bar, the overwhelming majority of those courts have interpreted Amendment 7 to provide a very broad right of access to a vast array of documents relating to all manner of medical “incidents”, including some that seem to defy characterization as an “adverse medical incident”1. The Florida Legislature took action, enacting enabling legislation that established procedures for requesting and obtaining records under Amendment 7 and sought to place some limits on the records available under Amendment 72. It was largely invalidated as unconstitutional by the Florida Supreme Court3. Other courts have turned away objections to Amendment 7 production based on constitutional principles, relevance4, overbreadth and burdensomeness5, and even “fact” work product.6
Among the few objections to Amendment 7 requests not yet judicially rejected are “opinion” work product and attorney-client privilege – but that may be only because no appellate court has squarely ruled on their applicability yet7. All in all, victories for health care providers on Amendment 7 issues have been few and far between.
One of those victories, however, has proven over the last nine years to be the most effective tool available to narrow overly broad requests and, at times, to deter plaintiffs from requesting records at all. This victory was the Florida Supreme Court’s holding that the procedures established in the enabling legislation for disclosure of Amendment 7 materials did not conflict with the language of Amendment 7 and were therefore constitutional8. Foremost among these approved procedures is section 381.028(7)(c), pursuant to which a health care provider may require a requesting party to pay the reasonable cost of compliance – including a reasonable charge for staff time necessary to search for records and redact other patients’ identifying information – before acting on the request.
Another victory, albeit non-judicial and perhaps lesser utilized, is a federal statute – the Patient Safety Quality Improvement Act of 2005 (PSQIA)9. By enacting PSQIA, Congress established a broad, federal privilege protecting medical peer review and patient safety processes. In order to qualify for its protection, health care providers must submit their “patient safety work product” to a “patient safety organization” (PSO) – external organizations that collect and analyze patient safety work product and provide feedback to providers on strategies to improve patient safety and quality of care.10 “Patient safety work product” that is submitted to a PSO is privileged and not subject to discovery in connection with a federal, state or local civil, criminal or administrative proceeding11. As a federal statute, the PSQIA and its privilege preempt Amendment 7 pursuant to the Supremacy Clause of the United States Constitution12. PSQIA’s protection of records that would be subject to Amendment 7 were they in Florida has been upheld by a small but growing number of courts nationwide13. Florida health care providers seeking to avoid or minimize the impact of Amendment 7 compliance would be well advised to investigate how to avail themselves of the protection of PSQIA by joining a PSO and submitting their patient safety work product for review and analysis.