Florida Appellate Court Holds Hospital’s Incident Report Regarding Birth Injury Was Privileged

Hospital’s Incident Report Regarding Birth Injury Was Privileged: Thirty-nine weeks pregnant with her unborn son, Jade Wiles noticed decreased fetal movement and went to Tallahassee Memorial Healthcare. She was monitored for several hours, after which the baby was delivered via caesarean section. During delivery, meconium was discovered in the amniotic fluid. The newborn had respiratory difficulties; he required resuscitation and ventilation, which alleviated his breathing condition. But the infant remained on oxygen supplementation for several days before he was discharged.

The Wiles’ son was later diagnosed with cerebral palsy. The Wiles filed their Florida medical malpractice lawsuit against sued Tallahassee Memorial, a physician, and other medical providers , asserting that the child’s diagnosed condition resulted from a birth injury or medical negligence that occurred when the child was treated in the neonatal intensive care unit.

The Wiles requested that Tallahassee Memorial disclose any “incident reports.” In response, the hospital objected to disclosing the report at issue, asserting that it was “patient safety work product” prepared “solely for submission to the patient safety organization” and, in fact, it was submitted to that organization. Thus, Tallahassee Memorial argued the report was privileged and not discoverable under the Federal Patient Safety Act. Tallahassee Memorial also argued that the Federal Patient Safety Act preempted Article X, section 25 of the Florida Constitution, known as “Amendment 7.”

Amendment 7

Amendment 7 recognizes “a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Art. X, § 25(a), Fla. Const. An “adverse medical incident” is defined broadly to include “medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient[.]” Art. X, § 25(c)(3), Fla. Const.

The First District Court of Appeal State of Florida (“Florida Appellate Court”) stated in its November 14, 2022 opinion: “We conclude that Tallahassee Memorial’s “Safety Event Report No. 67593” qualifies as patient safety work product and is entitled to confidentiality under the Federal Patient Safety Act for two reasons. First, unlike the documents at issue in Charles II, the report here was submitted to the hospital’s patient safety organization. Second, the document is not an “adverse incident” report, which state law defines and requires to be submitted to the Agency for Health Care Administration. The circuit court made no such finding that the document was an adverse incident report and, based on our in camera review, it does not document an “adverse incident” under section 395.0197(5), Florida Statutes. Tallahassee Memorial did not send this report to the Agency for Health Care Administration or any relevant state regulatory entity, nor was it required to file the report under state law. Given this, the document retains its privileged status as patient safety work product under the Federal Patient Safety Act. The trial court departed from the essential requirements of the law in concluding otherwise.”

Preemption

“We hold that the Federal Patient Safety Act expressly preempts Amendment 7 to the extent that the state law would
compel the disclosure of Tallahassee Memorial’s document. Pointedly, the federal law contains an express preemption clause, which makes “patient safety work product” privileged regardless of state law to the contrary. See 42 U.S.C. § 299b-22(a)(1)–(2) … The Federal Act also preempts Amendment 7 because the two laws conflict in a way that it is impossible for Tallahassee Memorial to comply with both.”

Source Tallahassee Memorial Healthcare, Inc. v. Wiles, No. 1D21-1503.

If you or your baby suffered a birth injury (or worse) during labor, delivery, or shortly after birth in Florida or in another U.S. state, you should promptly find a Florida birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.

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