A recent case in Duval County, Florida ordered the production of documents a hospital claimed were privileged patient safety work product under the Patient Safety and Quality Improvement Act of 2005 ("Patient Safety Act").

On July 30, 2014, Judge Wallace in Charles v. Southern Baptist Hospital of Florida, Inc. d/b/a Baptist Medical Center-South, Case No. 2012-CA-002677, rendered the attached order, requiring Baptist Hospital to produce documents the hospital claimed were patient safety work product. The order expresses a very restrictive view of patient safety work product.

In Charles, the plaintiffs sent an Amendment 7 request to Baptist Hospital. The plaintiffs' discovery request specifically asked for reports prepared pursuant to several sections of the Florida Statutes. The request specifically stated:

This request is limited to adverse incident documents (as described above) that are created by you, or maintained by you, or provided by you to any state or federal agency, pursuant to any obligation or requirement in any state or federal law, rule, or regulation. As limited, this request includes, but is not limited to, documents created by you, or maintained by you pursuant to Fla. Stat. § 395.0197, 766.010, and 395.0193. This request, as limited, specifically includes, but is not limited to, your annual adverse incident summary report and any and all Code 15 Reports.

In response Baptist Hospital produced Annual Reports, Code 15 Reports and two incident reports relating to the decedent. However, the hospital objected to the production of any other document claiming privilege under the Patient Safety Act. Plaintiffs filed a motion to compel production of all Amendment 7 documents.

Baptist Hospital argued that, regardless of the purpose behind the collection of information, the only information not privileged under the Patient Safety Act was information provided to a government entity.  The court rejected this argument. In its analysis, the court noted that under the Patient Safety Act, certain categories of information are expressly excluded from being patient safety work product, including information that is collected, maintained, or developed separately, or that exists separately, from a Patient Safety Evaluation System. The court found that Florida has very specific requirements for hospital risk management, including staff licensure and submission of certain incident reports to the state.  The court further noted that Florida requires hospitals to gather information via incident reports that may not be reported to the state, but which is necessary to carry out the mandated activities. Therefore, the court held that the information required to be gathered under Florida law, whether reported or not, is precluded from being protected patient safety work product under the Patient Safety Act. The hospital is currently appealing this order in the First District Court of Appeals.

Similarly, The Kentucky Supreme Court recently issued an opinion in Tibbs v. Bunnell, Case No. 2012-SC-000603-MR, in which it held that an incident report created by the University of Kentucky Hospital, through the hospital's Patient Safety Evaluation System was not protected as patient safety work product under the Patient Safety Act.

In the opinion, the Kentucky Supreme Court noted that the Kentucky Administrative Regulations require administrative reports, such as incident reports, be established, maintained, and utilized as part of the hospital's regular course of business. Like the court in Charles, the Kentucky Supreme Court found that under the Patient Safety Act certain categories of information are expressly excluded from being patient safety work product, including information that is collected, maintained, or developed separately, or that exists separately, from a Patient Safety Evaluation System. Therefore, the court reasoned since the incident report was required to be created pursuant to the Kentucky Administrative Regulations, the report was not patient safety work product, and therefore not privileged.

While these cases may not set any official precedent, these orders will be part of the ongoing discussion about Patient Safety Organization protections. Organizations that have established a Patient Safety Evaluation System for reporting to a Patient Safety Organization should explore any state-mandated safety and quality regulations to ensure the collection of such information is conducted in harmony with the Patient Safety Evaluation Systems to ensure proper protection as patient safety work product.