Protected or public? Court asks SCOFLA to again weigh in on privacy of adverse incident reports

Decorative Scales of Justice in the Courtroom
Gov. Ron DeSantis has appointed four of the seven justices on the state Supreme Court.

A three-member panel of Florida’s 1st District Court of Appeal (DCA) is reversing a Leon County circuit court ruling that would have required Tallahassee Memorial Healthcare (TMH) to make discoverable an internally prepared document known as “patient Safety Report No. 67593.”

The appeals court also agreed on Monday to ask the Florida Supreme Court whether the TMH-produced report is privileged and confidential under a federal law known as the Patient Safety Act of 2005 and, if so, whether the federal law preempts a state constitutional guarantee that residents have rights to adverse medical incident reports.

This is the second time the Florida Supreme Court has been asked to weigh in on the thorny issue of adverse medical incident reports and when an adverse incident report is protected from disclosure and when it is required to be made available to the public.

But it’s the first time that a more conservative-leaning court, with four of the seven justices appointed by Gov. Ron DeSantis, could consider the issues.

The high court in 2017 addressed the issue in Charles v. Southern Baptist Hospital. of Florida, Inc. in which the court ruled that the “occurrence reports” at the center of that legal tussle were not protected by federal law because they weren’t solely produced for submission to a patient safety organization (PSO).

To encourage hospitals to report the data, the 2005 act, with certain exemptions, protects “patient safety work product” from and any federal, state or local subpoena or discovery. The measure also makes clear that the work product may not be admitted as evidence in criminal, civil, administrative or disciplinary proceedings and is not subject to the federal Freedom of Information Act or similar state and local laws.

The federal law came on the heels of Florida voters approving Amendment 7 in 2004. The amendment guarantees patients access to adverse medical incident reports produced at hospitals.

In its 2017 ruling, the Supreme Court also said the state guarantee to patient records and a federal law protecting reports prepared for submission to a PSO can “harmoniously co-exist.” That’s because the adverse medical incident documents facilities voluntarily create and submit to PSOs are not the same documents that Florida patients have a guaranteed right to access.

The 1st DCA on Monday opined the documents at the center of the TMH legal battle were produced solely for submission to a PSO and protected by the federal law, and agreed to quash the trial court’s order for TMH to produce the document.

Moreover, the DCA said the 2017 Supreme Court decision on whether the federal law preempts the state law doesn’t apply to the underlying TMH case it considered.

The Supreme Court “addressed preemption in the context of documents that were not patient safety work product (and thus not subject to the privilege protections under federal law),” Judge Rachel E. Nordby wrote in the ruling, an opinion Judge Brad Thomas concurred with.

“Given our conclusion that Tallahassee Memorial’s report is a patient safety work product, (the ruling) is not dispositive.”

Nordby suggested in the opinion that even if the cases weren’t distinguishable, the 2017 holding on preemption could be considered “dicta.”

The underlying lawsuit in the case is between TMH and Jade Wiles and Justin Wiles, who are suing the hospital for medical malpractice on behalf of their son, Lennox Wiles.

According to court documents, Jade Wiles was 39 weeks pregnant when she noticed decreased fetal movement and went to TMH. After several hours of observation, Wiles delivered the baby via cesarean section. But because meconium was discovered in the amniotic fluid, the baby required resuscitation. The baby was subsequently hospitalized and treated in TMH’s neonatal intensive care unit, where he was given additional oxygen.

Twelve days after the delivery, a TMH “health care” employee prepared Safety Report No. 67593.

The Wiles’ son was subsequently diagnosed with cerebral palsy, and they sued the hospital and a physician and other health care providers. The couple alleged their son developed cerebral palsy because he was injured in the neonatal unit and not during delivery.

The Wileses requested as part of the litigation that TMH disclose to them any “incident reports.” The hospital objected to disclosing the report at issue, asserting it was a “patient safety work product” prepared “solely for submission to the patient safety organization” and, in fact, it was submitted to that organization. 

The trial court allowed attorneys for the Wiles’ to depose TMH’s corporate representative about the hospital’s general policies, adverse medical incidents, and the hospital’s system for collecting confidential reports under the 2005 federal law.

Attorneys also were allowed to depose the hospital representatives about the reporting of adverse medical incidents to the state, which is part of hospital licensure requirements. The Wiles’ attorneys alleged TMH representatives testified that Safety Report No. 67593 was created as part of the hospital’s record-keeping responsibilities.

After conducting another hearing, the trial court judge ruled that Safety Report No. 67593 was not privileged and ordered its production. TMH appealed the ruling to the 1st DCA.

Although he agreed in part with the opinion, and with certifying the questions to the Supreme Court for consideration, Judge Scott Makar issued a lengthy dissenting opinion. He addressed what he called “the judicial interpretations of Amendment 7 which have greatly expanded the legal reach of that constitutional provision far beyond the limits provided by the amendment’s proponents in the ballot title, summary, and text of Amendment 7.”

Christine Jordan Sexton

Tallahassee-based health care reporter who focuses on health care policy and the politics behind it. Medicaid, health insurance, workers’ compensation, and business and professional regulation are just a few of the things that keep me busy.


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