Just What the Doctor Ordered? How the Patient Safety and Quality Improvement Act May Cure Florida’s Patients’ Right to Know About Adverse Medical Incidents (Amendment 7)

This Note addresses the impact of Florida’s Patients’ Right to Know About Adverse Medical Incidents (commonly known as Amendment 7) on the peer review process and the quality of healthcare in Florida. Enacted in 2004 as an amendment to the Florida Constitution, Amendment 7 provides citizens access to records and reports of past adverse medical incidents involving doctors, hospitals, and healthcare providers. Critics of Amendment 7 argue that peer review privilege protections are necessary to maintain high-quality healthcare in Florida, pointing to the need to encourage candid and vigorous evaluations by physicians of their colleagues. In contrast, Amendment 7 supporters argue that it provides Florida patients with valuable information to aid in their choice of physicians. While it is still too early to determine Amendment 7’s impact on the peer review system, and thus on the quality of healthcare systems statewide, any possible solution to counteract Amendment 7 would be beneficial to Florida patients. Under Amendment 7, healthcare providers likely will not critically analyze fellow physicians during peer review because of a lack of confidentiality and privilege protections. Peer review will no longer feature the full disclosure by specialized healthcare practitioners that is necessary for its maximum effectiveness. As a result, patients likely will suffer a decline in the quality of healthcare. Congress enacted the Patient Safety and Quality Improvement Act (PSQIA) in response to a startling finding in 1999 by the Institute of Medicine that between 44,000 and 98,000 patients die annually in American hospitals due to medical errors. The PSQIA creates patient safety organizations (PSO) and the Network of Patient Safety Databases (NPSD), which enable healthcare providers to share reports of adverse medical incidents with the assurance of confidentiality and privilege protections. Joining a PSO may alleviate providers’ fear of participation in * J.D. expected, May 2012, University of Florida Levin College of Law. B.A., Political Science, and B.S., Psychology, May 2009, University of Florida. Thank you to my family and friends for their constant love and support. Thank you to the members and staff of the Florida Law Review for their hard work and dedication during the editing and publication process. A special thank you to Jan Bell Pollack and my father Richard G. Dunberg for their invaluable suggestions in writing this Note. 1 Dunberg: Just What the Doctor Ordered? How the Patient Safety and Quality Published by UF Law Scholarship Repository, 2012 514 FLORIDA LAW REVIEW [Vol. 64 the peer review process. Through the PSQIA, Florida healthcare providers will not only improve the quality of healthcare by protecting peer review, but also by analyzing and aggregating PSO-submitted information. PSOs foster an environment in which providers can learn from their mistakes and the mistakes of others. Through the sharing of patient safety event information within PSOs and the NSPD, Florida healthcare providers will be able to counteract Amendment 7 and guarantee the exchange of medical information and data. Therefore, while the interplay between Florida’s Amendment 7 and Congress’s PSQIA has yet to be determined, the impact of the PSQIA is that adverse medical incidents will likely be reduced overall, despite the interference of Amendment 7 with full and frank peer review in Florida. INTRODUCTION 515 I. THE PEER REVIEW PROCESS 519 II. AMENDMENT 7: PATIENTS’ RIGHT TO KNOW ABOUT ADVERSE MEDICAL INCIDENTS 521 A. Florida’s Peer Review Protections Before Amendment 7 521 B. The Enactment of Amendment 7 523 C. The Legislative and Judicial Responses to Amendment 7 526 D. The Current Landscape Under Amendment 7 530 III. THE PATIENT SAFETY AND QUALITY IMPROVEMENT ACT (PSQIA) 532 A. History and Enactment 532 B. The Creation of Patient Safety Organizations and the Network of Patient Safety Databases 534 C. Patient Safety Work Product and Patient Safety Evaluation System: Privilege and Confidentiality Protections 537 D. The Judicial Response to and the Future of the PSQIA 539 IV. WILL THE PSQIA BE THE CURE TO AMENDMENT 7? 541 A. Amendment 7 and the PSQIA 541 B. How to Become a Patient Safety Organization in Florida 542 C. Why Florida Healthcare Providers Should Join Patient Safety Organizations 543 2 Florida Law Review, Vol. 64, Iss. 2 [2012], Art. 6 http://scholarship.law.ufl.edu/flr/vol64/iss2/6 2012] JUST WHAT THE DOCTOR ORDERED 515 CONCLUSION 546