1. It is well established that Florida physicians are required to report any adverse incident that occurs in their office to the Department of Health. Discovery of these reports is a patient’s constitutional right under Article X, section 25 of the Florida Constitution (Amendment 7). Now, it also appears that adverse incident reports to any Patient Safety Organization (PSO) under the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) are most likely discoverable following a recent Florida Supreme Court decision.

The Florida Supreme Court held in Charles v. Southern Baptist Hospital of Florida, Inc., No. SC15-2180 (Fla. Jan. 31, 2017), that adverse incident reports produced in conformity with state law could not be classified as confidential and privileged “patient safety work product” under the PSQIA. The Court reasoned that adverse incident reports do not constitute “patient safety work product” because Florida Statutes and Florida Administrative Rules require that providers create and maintain adverse incident reports. Additionally, the Court noted that patients have a constitutional right to access records relating to adverse medical incident reports. The Court also held that the PSQIA did not expressly or impliedly preempt a patient’s constitutional right under Amendment 7.

2. The Florida Supreme Court held in Hernandez v. Crespo, No. SC15-67 (Fla. Dec. 22, 2016), that an arbitration agreement violated public policy under the Medical Malpractice Act and was therefore unenforceable. The arbitration agreement (agreement) was signed by Mrs. Crespo but not Mr. Crespo. Plaintiffs later requested binding arbitration pursuant to section 766.207, Florida Statutes, which was rejected as the providers were enforcing the signed agreement.

The Supreme Court found that the agreement signed by Mrs. Crespo was void and violated public policy because it included statutory terms that only favored the providers. The Court specifically noted that the agreement diverged from the requirements of the Medical Malpractice Act in that it:

• Did not concede the providers’ liability

• Did not guarantee independent arbitrators

• Did not include that one arbitrator had to be an administrative law judge

• Did not provide for payment of interest on damages

• Did not require joint and several liability of the defendants

• Shared costs equally between the parties instead of the providers assuming most of the costs

• Dispensed with the right to appeal.

The takeaway from Hernandez for health care providers is that arbitration agreements must follow the statutory arbitration scheme under Florida’s Medical Malpractice Act. If an arbitration agreement is one-sided or conflicts with the statutory arbitration scheme, the court will likely find the agreement void, against public policy and unenforceable. Providers should review their existing arbitration agreements following this holding by the Florida Supreme Court to ensure that mandatory reporting obligations are kept separately from PSQIA activities.