McCumber Daniels Secures First Order Confirming that the Federal Patient Safety and Quality Improvement Act Preempts Florida’s Amendment 7

Author: Amy L. Dilday

On September 5, 2019, McCumber Daniels Buntz Hartig Puig and Ross’s appellate imagesattorney, Amy Dilday, secured a win on behalf of Tampa General Hospital on a motion for summary judgment that pitted Florida’s Amendment 7 against the federal Patient Safety and Quality Improvement Act.  Article X, section 25 of Florida’s Constitution (commonly referred to as Amendment 7) provides broad access for patients to health care providers’ records relating to adverse medical incidents.  The hospital had been served with a broad request for Amendment 7 documents in a state court action.  Some of the documents that were responsive to the request, however, had been reported to the hospital’s Patient Safety Organization (PSO) pursuant to the federal Act.  The Act provides that information submitted to a PSO is confidential and privileged and subjects persons who disclose that information to mandatory fines.  To avoid the mandatory fine, the hospital moved for a protective order on the documents in the state court and Ms. Dilday also spearheaded the action for declaratory relief in the federal district court. 

The state court denied the hospital’s motion for a protective order based on a case it deemed binding from the Florida Supreme Court, Charles v. Southern Baptist Hospital of Florida, Inc., 209 So. 3d 1199 (Fla. 2017).  In Charles, the supreme court held that the hospital’s documents at issue were not protected under the Act and also determined that the Act does not preempt the Florida constitutional right.  Judge Moody, United States District Court Judge, however, agreed that the hospital’s documents were protected under the Act and recognized the Act’s express preemption clause.  He distinguished TGH’s documents from those in Charles because TGH’s documents had been submitted to its PSO.  Accordingly, the court granted the hospital’s motion for summary judgment, declaring that the “documents at issue in the state court action are protected patient safety work product” and that “the federal Patient Safety and Quality Improvement Act preempts Article X, section 25 of the Florida Constitution with respect to these documents.”  The court also enjoined the Secretary of the United States Department of Health and Human Services from enforcing the Act in the state court action by imposing the mandatory penalty against TGH if it must produce the documents.

In this action, McCumber Daniels secured the first order from a federal court that discusses the interaction of Florida’s Amendment 7 and the federal Act.  The order will provide persuasive authority to support health care providers’ requests that the state trial courts recognize and enforce the preemptive intent of the Patient Safety and Quality Improvement Act in the light of broad Amendment 7 requests.

*Amy L. Dilday is a Partner at McCumber Daniels and practices in the firm’s Florida office.  Ms. Dilday is a Florida Bar Board Certified Appellate Attorney who heads the firm’s appellate practice group. She can be reached at 813-287-2822 or