Earlier this month, Bolin Law Group partner Andy Bolin filed a Motion to Intervene on behalf of PSO Florida, in the Federal Declaratory Action, Tampa General Hospital v. the Department of Health and Human Services, Case No: 8:18-cv-00238-JSM-CPT.
The underlying Declaratory Action, filed by Tampa General Hospital sought protections from a Florida trial Court Order that required TGH to turn over quality assurance documentation that had been created within the hospital’s Patient Safety Evaluation System and submitted to PSO Florida. Pursuant to the Patient Safety Quality Improvement Act (“PSQIA”), documents like the ones subject to disclosure would be considered privileged Patient Safety Work Product, but for the rulings of the Florida trial and appellate courts. The lawsuit focuses on the fact that there is now a conflict between state and federal laws and hospitals who disclose such documentation can be subject to monetary penalties by the Department of Health and Human Services. This Federal action is the latest lawsuit in a string of litigation connected to Florida’s “Patient’s Right to Know Amendment” passed in 2004, and the federal Protections offered to hospitals who actively participate in making their facilities safer for patients through quality improvement activities, under the PSQIA. Since it passage, the Patient’s Right to Know Amendment has been used almost exclusively by Plaintiffs who have filed medical malpractice lawsuits to gain information developed by hospitals in studying incidents in their facilities and participating in self-critical analysis to improve patient outcomes.
PSO Florida moved to Intervene in the case citing the statewide impact the issue has on PSO Florida and its members. The Motion stated that while TGH was embroiled in a lawsuit against a single medical malpractice Plaintiff, PSO Florida members throughout the state routinely face similar or even more broadly worded requests for adverse incident materials. This forced disclosure, the Motion argued, deprives PSO members of the full benefit of their PSO membership, places PSO Florida at risk of being subject to state trial court subpoenas and has a chilling effect on patient safety activities.
Judge Moody issued his ruling this morning granting PSO Florida’s Motion to Intervene, which allows for the Federal Court to address PSO Florida’s contention that State Constitutional Law is pre-empted by the PSQIA and that any and all documents submitted to the PSO, which qualify as Patient Safety Work Product, are strictly protected from forced disclosure. Judge Moody also denied a Motion to Dismiss the action by HHS. Judge Moody noted that hospitals are placed “between a rock and a hard place” when facing requests for adverse incident materials as they are forced to choose between sanctions from refusing to follow a state trial court order or from the HHS for disclosing protected documents. In granting the Motion to Intervene, PSO Florida was directed by the Court to file its own Complaint raising the concerns of the PSO. A scheduling order will be entered by the Court setting a timeline for further activities in the case which will culminate in a ruling on these issues by Judge Moody. There are of course no guarantees in how the Court will ultimately rule, but securing today’s Order marks the first time a Florida Federal Court has agreed to address the issue of federal preemption and the interplay between the PSQIA and Florida’s “Amendment 7” Constitutional Provision.