Senate Bill sb2218

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    Florida Senate - 2005                                  SB 2218

    By Senator Saunders





    37-1027-05

  1                      A bill to be entitled

  2         An act relating to patients' right to know

  3         about adverse medical incidents; creating s.

  4         381.028, F.S.; providing a short title;

  5         providing a purpose; providing definitions;

  6         requiring health care facilities and health

  7         care providers to observe certain delineated

  8         rights of patients; providing that certain

  9         records obtained through the act may not be

10         subject to discovery or introduced into

11         evidence in any civil or administrative

12         proceeding; providing that the person

13         responsible for providing or preparing such

14         records cannot be compelled to testify about

15         the information in the records in any civil or

16         administrative proceeding; providing that the

17         limited use of records obtained through this

18         act does not alter or repeal other statutory

19         restrictions regarding discoverability or

20         admissibility; providing that the limited use

21         of records in this act does not require

22         disclosure of documents regarding

23         attorney-client communications or attorney work

24         product; authorizing a patient to waive his or

25         her right to request records under certain

26         conditions; providing for applicability of the

27         act to certain records; amending s. 381.0271,

28         F.S.; authorizing the Florida Patient Safety

29         Corporation to use hypothetical cases to

30         evaluate quality assurance and safety programs;

31         prohibiting the investigations, proceedings,

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 1         and records of the corporation from being

 2         discovered or introduced into evidence in any

 3         civil or administrative proceeding under

 4         certain circumstances; providing that the

 5         person in attendance at a meeting of the

 6         corporation cannot be compelled to testify

 7         about the information, findings, opinions, or

 8         recommendations of the corporation in any civil

 9         or administrative proceeding; providing that

10         certain information is not immune from

11         discovery; providing for severability;

12         providing an effective date.

13  

14  Be It Enacted by the Legislature of the State of Florida:

15  

16         Section 1.  Section 381.028, Florida Statutes, is

17  created to read:

18         381.028  Florida Patients' Right to Know About Adverse

19  Medical Incidents Act.--

20         (1)  SHORT TITLE.--This section may be cited as the

21  "Florida Patients' Right to Know About Adverse Medical

22  Incidents Act."

23         (2)  PURPOSE.--It is the purpose of this section to

24  implement the provisions of Article X, s. 22 of the Florida

25  Constitution which the Legislature finds not to be

26  self-executing.  The Legislature finds that the intent of the

27  voters was to provide patients and prospective patients with

28  access to quality of care information relating to adverse

29  medical incidents to assist patients and prospective patients

30  in evaluating the quality of care that they receive or can

31  reasonably expect to receive from health care facilities and

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 1  health care providers in this state. In enacting this section,

 2  it is the intent of the Legislature to maintain all existing

 3  provisions concerning criminal and civil immunity for persons

 4  providing information to quality of care committees or

 5  organizations or to render any records of any adverse medical

 6  incident discoverable or admissible into evidence in any

 7  judicial or administrative proceeding. Records required to be

 8  made available under this section are not public records

 9  inasmuch as they are to be made available only to patients and

10  prospective patients and not the public at large.

11         (3)  DEFINITIONS.--As used in this section, the term:

12         (a)  "Adverse medical incident" means medical

13  negligence, intentional misconduct, and any other act of

14  medical neglect, or default of a health care facility or

15  health care provider which caused or could foreseeably have

16  caused injury to or the death of a patient, including, but not

17  limited to, those medical incidents that are required by state

18  or federal law to be reported to any governmental agency or

19  body, and incidents that are reported to or reviewed by any

20  health care facility peer review, risk management, quality

21  assurance, credentials, or similar committee, or any

22  representative of any such committees.

23         (b)  "Agency" means the Agency for Health Care

24  Administration.

25         (c)  "Department" means the Department of Health.

26         (d)  "Have access to any records" means making the

27  records available for inspection and copying them upon written

28  request by the patient or a representative of the patient if

29  any current records that have been made publicly available by

30  publication or on the Internet may be provided by reference to

31  the location at which the records are publicly available. Any

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 1  health care facility or health care provider responding to a

 2  request for records has a reasonable amount of time to respond

 3  to the request. In addition, in responding to a request for

 4  records, any health care facility or health care provider has

 5  that time which is necessary to make sure that all patient

 6  identifying information and other information required to be

 7  made private under state or federal law is not improperly

 8  disclosed. Any record that contains information about a health

 9  care facility or health care provider must be disclosed to the

10  health care facility or the health care provider named in the

11  record sufficiently before it is made available to the patient

12  or the patient's representative so as to allow the health care

13  facility or health care provider to correct any errors in the

14  record and to correct any errors in the required redaction of

15  patient identifying information or other information required

16  to be made private under state or federal law. Patients or any

17  representative of a patient requesting records shall pay in

18  advance all anticipated costs of preparing requested records

19  for inspection and copying, including, but not limited to,

20  clerical and administrative costs of locating, assembling,

21  reviewing for, and redacting any patient identifying and other

22  private information, reviewing for and redacting any attorney

23  client or attorney work product information, and producing

24  such records for inspection and copying. Patients and

25  representatives of patients shall pay in advance all

26  anticipated costs of copying, including labor and supplies,

27  any records selected for copying by the patient or the

28  representative of the patient.  A request for information must

29  be written and must identify the patient requesting access to

30  records by name, address, date of birth, and social security

31  number, describe the condition, treatment, or diagnosis for

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 1  which the patient is undergoing, has undergone, or is seeking

 2  health care, and specify the name of each health care facility

 3  or health care provider from whom the patient is undergoing,

 4  has undergone, or is seeking health care relating to the

 5  condition, treatment, or diagnosis identified. Requests for

 6  access to information shall be made directly to health care

 7  facilities and health care providers that made or received the

 8  records and not to the department or to the agency.

 9         (e)  "Health care facility" means a facility licensed

10  under chapter 395.

11         (f)  "Health care provider" means a physician licensed

12  under chapter 458, an osteopathic physician licensed under

13  chapter 459, or a podiatric physician licensed under chapter

14  461.

15         (g)  "Identity of patient" means any individually

16  identifiable health information as defined by the Health

17  Insurance Portability and Accountability Act of 1996 or its

18  implementing regulations.

19         (h)  "Patient" means an individual who has sought, is

20  seeking, is undergoing, or has undergone care or treatment in

21  a health care facility or by a health care provider.

22         (i)  "Privacy restrictions imposed by federal law"

23  means the requirements with respect to disclosure of

24  information under federal law, including, but not limited to,

25  the Health Insurance Portability and Accountability Act of

26  1996, Public Law 104-91 (HIPAA) and its implementing

27  regulations, and the Federal Privacy Act, 5 U.S.C. s. 552(a)

28  and its implementing regulations, and any privilege,

29  including, but not limited to, the attorney-client, the

30  attorney work product, or the self-critical analysis

31  

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 1  privilege, that has been recognized under federal law that

 2  prohibits disclosure of information contained in the record.

 3         (j)  "Record" means the final report of any adverse

 4  medical incident occurring after November 2, 2004, that

 5  involves the patient who is seeking access to the report, or

 6  that involves the treatment, condition, or diagnosis of the

 7  patient and involves the health care facility or health care

 8  provider identified in the request for records, excluding,

 9  however, any medical records that are not the final report of

10  any adverse medical incident, drafts, or other nonfinal

11  versions, notes, or any documents that constitute, contain, or

12  reflect any attorney-client communications or any attorney

13  work product, or any information that would be protected from

14  disclosure by any privacy restrictions imposed by federal law.

15  The identities of reviewers, complainants, or any other

16  persons who provided information relied upon in the

17  preparation of the final report, or who otherwise participated

18  in the creation of the final report shall be redacted from the

19  report before it is provided to the patient.

20         (k)  "Relating to" means either directly involving the

21  patient who is requesting access to records or directly

22  involving the treatment, condition, or diagnosis for which the

23  patient has undergone, is undergoing, or is seeking health

24  care and the health care facility or health care provider from

25  whom records are requested.

26         (l)  "Representative of the patient" means a parent of

27  a minor patient, a court appointed guardian for the patient,

28  or a person holding a power of attorney or notarized consent

29  appropriately executed by the patient reflecting the patient's

30  permission to disclose the patient's health care information

31  to that person.

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 1         (m)  "Seeking access" means actively requesting access

 2  to a health care provider or health care facility as

 3  demonstrated either by documented appointments or

 4  consultations with a health care provider or health care

 5  facility, or by a written referral to a health care provider

 6  or health care facility by another licensed health care

 7  practitioner.

 8         (4)  RIGHTS OF PATIENTS.--Each health care facility or

 9  health care provider shall observe the following requirements:

10         (a)  In addition to any other similar rights provided

11  herein or by general law, patients have a right to have access

12  to any records made or received in the course of business by a

13  health care facility or provider relating to any adverse

14  medical incident involving the patient or the provider to

15  which the patient is seeking access.

16         (b)  In providing such access, the identity of patients

17  involved in the adverse medical incidents may not be

18  disclosed, and any privacy restrictions imposed by state or

19  federal law shall be maintained.

20         (5)  USE OF RECORDS.--Records obtained through this

21  section and any of the information contained in those records,

22  including information relating to performance or quality

23  improvement initiatives, the identities of reviewers,

24  complainants, or other persons providing information contained

25  in or participating in the creation of records of adverse

26  medical incidents, may not, without limitation or exception,

27  be subject to discovery or introduction into evidence, for any

28  purpose, including impeachment, in any civil or administrative

29  action in whatever form or cause of action against a health

30  care facility or health care provider, and a person who

31  provided information that was used in the preparation of the

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 1  record or who participated in the creation of the record is

 2  not permitted or required to testify in any such civil or

 3  administrative action as to any evidence or other matters used

 4  in the preparation of the record or that relate to the adverse

 5  medical incident covered by the record. However, information

 6  or documents otherwise available from other sources are not

 7  immune from discovery or use in any such civil or

 8  administrative action under this section. This section does

 9  not repeal or otherwise alter any existing restrictions on the

10  discoverability or admissibility of records relating to

11  adverse medical incidents otherwise provided by law,

12  including, but not limited to, ss. 395.0191(8), 395.0193(8),

13  and 766.101(5) nor to repeal or otherwise alter any immunity

14  provided to persons providing information or participating in

15  any peer review, medical review, or hospital committee

16  otherwise provided by law, including, but not limited to, ss.

17  395.0191(7), 395.0193(5) and 766.101. This section does not

18  require disclosure of documents that constitute or contain

19  attorney-client communications or attorney work product

20  information.

21         (6)  WAIVER.--A patient may waive the right to request

22  the records that are subject to the provisions of this section

23  and Article X, s. 22, Florida Constitution, if any such waiver

24  is in writing and signed by the patient or the patient's

25  representative.

26         (7)  APPLICABILITY.--This section shall apply to all

27  records of adverse medical incidents made after November 2,

28  2004, and to all actions pending on or filed after November 3,

29  2004. A request for records which is made on or before

30  November 3, 2006, is only eligible to receive records created

31  on or after November 3, 2004. A request for records which is

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 1  made on or after November 3, 2006, is only eligible to receive

 2  records created within 24 months of the date of the request.

 3         Section 2.  Subsection (7) of section 381.0271, Florida

 4  Statutes, is amended and subsection (11) is added to that

 5  section, to read:

 6         381.0271  Florida Patient Safety Corporation.--

 7         (7)  POWERS AND DUTIES.--

 8         (a)  In addition to the powers and duties prescribed in

 9  chapter 617, and the articles and bylaws adopted under that

10  chapter, the corporation shall, directly or through contract:

11         1.  Secure staff necessary to properly administer the

12  corporation.

13         2.  Collect, analyze, and evaluate patient safety data

14  and quality and patient safety indicators, medical malpractice

15  closed claims, and adverse incidents reported to the Agency

16  for Health Care Administration and the Department of Health

17  for the purpose of recommending changes in practices and

18  procedures that may be implemented by health care

19  practitioners and health care facilities to improve health

20  care quality and to prevent future adverse incidents.

21  Notwithstanding any other provision of law, the Agency for

22  Health Care Administration and the Department of Health shall

23  make available to the corporation any adverse incident report

24  submitted under ss. 395.0197, 458.351, and 459.026. To the

25  extent that adverse incident reports submitted under s.

26  395.0197 are confidential and exempt, the confidential and

27  exempt status of such reports shall be maintained by the

28  corporation.

29         3.  Establish a "near-miss" patient safety reporting

30  system. The purpose of the near-miss reporting system is to:

31  identify potential systemic problems that could lead to

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 1  adverse incidents; enable publication of systemwide alerts of

 2  potential harm; and facilitate development of both

 3  facility-specific and statewide options to avoid adverse

 4  incidents and improve patient safety. The reporting system

 5  shall record "near misses" submitted by hospitals, birthing

 6  centers, and ambulatory surgical centers and other providers.

 7  For the purpose of the reporting system:

 8         a.  The term "near miss" means any potentially harmful

 9  event that could have had an adverse result but, through

10  chance or intervention in which, harm was prevented.

11         b.  The near-miss reporting system shall be voluntary

12  and anonymous and independent of mandatory reporting systems

13  used for regulatory purposes.

14         c.  Near-miss data submitted to the corporation is

15  patient safety data as defined in s. 766.1016.

16         d.  Reports of near-miss data shall be published on a

17  regular basis and special alerts shall be published as needed

18  regarding newly identified, significant risks.

19         e.  Aggregated data shall be made available publicly.

20         f.  The corporation shall report the performance and

21  results of the near-miss project in its annual report.

22         4.  Work collaboratively with the appropriate state

23  agencies in the development of electronic health records.

24         5.  Provide for access to an active library of

25  evidence-based medicine and patient safety practices, together

26  with the emerging evidence supporting their retention or

27  modification, and make this information available to health

28  care practitioners, health care facilities, and the public.

29  Support for implementation of evidence-based medicine shall

30  include:

31  

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 1         a.  A report to the Governor, the President of the

 2  Senate, the Speaker of the House of Representatives, and the

 3  Agency for Health Care Administration by January 1, 2005, on:

 4         (I)  The ability to join or support efforts for the use

 5  of evidence-based medicine already underway, such as those of

 6  the Leapfrog Group, the international group Bandolier, and the

 7  Healthy Florida Foundation.

 8         (II)  The means by which to promote research using

 9  Medicaid and other data collected by the Agency for Health

10  Care Administration to identify and quantify the most

11  cost-effective treatment and interventions, including disease

12  management and prevention programs.

13         (III)  The means by which to encourage development of

14  systems to measure and reward providers who implement

15  evidence-based medical practices.

16         (IV)  The review of other state and private initiatives

17  and published literature for promising approaches and the

18  dissemination of information about them to providers.

19         (V)  The encouragement of the Florida health care

20  boards under the Department of Health to regularly publish

21  findings related to the cost-effectiveness of

22  disease-specific, evidence-based standards.

23         (VI)  Public and private sector initiatives related to

24  evidence-based medicine and communication systems for the

25  sharing of clinical information among caregivers.

26         (VII)  Regulatory barriers that interfere with the

27  sharing of clinical information among caregivers.

28         b.  An implementation plan reported to the Governor,

29  the President of the Senate, the Speaker of the House of

30  Representatives, and the Agency for Health Care Administration

31  by September 1, 2005, that must include, but need not be

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 1  limited to: estimated costs and savings, capital investment

 2  requirements, recommended investment incentives, initial

 3  committed provider participation by region, standards of

 4  functionality and features, a marketing plan, and

 5  implementation schedules for key components.

 6         6.  Develop and recommend core competencies in patient

 7  safety that can be incorporated into the undergraduate and

 8  graduate curricula in schools of medicine, nursing, and allied

 9  health in the state.

10         7.  Develop and recommend programs to educate the

11  public about the role of health care consumers in promoting

12  patient safety.

13         8.  Provide recommendations for interagency

14  coordination of patient safety efforts in the state.

15         (b)  In carrying out its powers and duties, the

16  corporation may also:

17         1.  Assess the patient safety culture at volunteering

18  hospitals and recommend methods to improve the working

19  environment related to patient safety at these hospitals.

20         2.  Inventory the information technology capabilities

21  related to patient safety of health care facilities and health

22  care practitioners and recommend a plan for expediting the

23  implementation of patient safety technologies statewide.

24         3.  Recommend continuing medical education regarding

25  patient safety to practicing health care practitioners.

26         4.  Study and facilitate the testing of alternative

27  systems of compensating injured patients as a means of

28  reducing and preventing medical errors and promoting patient

29  safety.

30         5.  Conduct other activities identified by the board of

31  directors to promote patient safety in this state.

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 1         (c)  In lieu of any specific cases reported by any

 2  health care facility licensed under chapter 395 or any health

 3  care provider licensed under chapter 458 or chapter 459, the

 4  corporation may rely upon and use hypothetical cases in order

 5  to evaluate the quality assurance and patient safety programs

 6  of the health care facility and the health care provider.

 7         (11)  The investigations, proceedings, and records of

 8  the corporation as described in this section may not be

 9  subject to discovery or introduced into evidence in any civil

10  or administrative action against a health care facility or

11  health care provider arising out of the matters that are the

12  subject of evaluation and review by the corporation or any of

13  its committees, and any person who was in attendance at a

14  meeting of the corporation or any of its committees are not

15  permitted or required to testify in any such civil or

16  administrative action as to any evidence or other matters

17  produced or presented during the proceedings of the

18  corporation or any of its committees as to any findings,

19  recommendations, evaluations, opinions, or other actions of

20  the corporation or any of its committees. However, except as

21  otherwise provided by statute, information, documents, or

22  records otherwise available from original sources are not

23  immune from discovery or use in any such civil or

24  administrative action merely because they were presented

25  during proceedings of the corporation or any of its

26  committees, and any person who testifies before or

27  participates in the meetings of the corporation or any of its

28  committees are not prevented from testifying as to matters

29  within his or her knowledge. Such witness may not be asked

30  about his or her testimony or participation in the proceedings

31  of the corporation or any of its committees or opinions formed

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 1  by him or her as a result of participation in such

 2  proceedings.

 3         Section 3.  If any provision of this act or its

 4  application to any person or circumstance is held invalid, the

 5  invalidity does not affect other provisions or applications of

 6  the act which can be given effect without the invalid

 7  provision or application, and to this end the provisions of

 8  this act are declared severable.

 9         Section 4.  This act shall take effect upon becoming a

10  law.

11  

12            *****************************************

13                          SENATE SUMMARY

14    Requires health care facilities and health care providers
      to observe certain delineated rights of patients.
15    Provides that certain records obtained through the act
      may not be subject to discovery or introduced into
16    evidence. Provides that the person responsible for
      providing or preparing such records cannot be compelled
17    to testify about the information in the records. Provides
      that the limited use of records obtained through this act
18    does not alter or repeal other statutory restrictions
      regarding discoverability or admissibility. Provides that
19    the limited use of records in this act does not require
      disclosure of documents regarding attorney-client
20    communications or attorney work product. Authorizes a
      patient to waive his or her right to request records
21    under certain conditions. Provides for the applicability
      of the act to certain records. Authorizes the Florida
22    Patient Safety Corporation to use hypothetical cases to
      evaluate quality assurance and safety programs. Prohibits
23    investigations, proceedings, and records of the
      corporation from being discovered or introduced into
24    evidence in any civil or administrative proceeding under
      certain circumstances. Provides that the person in
25    attendance at a meeting of the corporation cannot be
      compelled to testify about the information, findings,
26    opinions, or recommendations of the corporation.

27  

28  

29  

30  

31  

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