Advocacy Update

Feb. 23, 2017: Judicial Advocacy Update


The 11th U.S. Circuit Court of Appeals struck down provisions of the Florida Firearms Owners' Privacy Act (FOPA) that prohibited health care providers from asking patients about gun ownership and safe firearm storage. Citing AMA policy, the court determined that "the applicable standard of care encourages doctors to ask questions about firearms (and other potential safety hazards)," and that health care providers "must be able to speak frankly and openly to patients." The court noted that "Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership, but it may not burden the speech of others in order to tilt the public debate in a preferred direction."

Standing for physicians

The AMA Litigation Center is the strongest voice for America's medical profession in legal proceedings across the country.

The AMA strongly opposed FOPA and along with the American Academy of Pediatrics and seven other medical specialty societies urged the court to uphold a lower court decision that ruled the law unconstitutional. Joint amicus briefs filed by the medical societies stressed that lawmakers should not insert the state into the patient-physician relationship by dictating, prohibiting, or threatening open communication between patients and physicians.

AMA President Andrew Gurman praised the decision by stating that "open communication between patients and physicians is essential to medical care and must be protected from legislative gag orders. The court ruling is a clear victory against censorship of private medical discussions between patients and physicians. The State of Florida cannot ignore constitutional rights by limiting the free speech necessary for the practice of medicine."

Physicians and hospitals share medical incident reports for quality improvement efforts to increase patient safety through patient safety organizations (PSO). When that information is not protected from disclosure in medical liability cases, it can stifle the sharing. The Supreme Court of Florida reversed a District Court of Appeal decision, deeming this information unprotected from litigation discovery.

In Charles v. Southern Baptist Hospital of Florida, a trial court had ordered the hospital to produce medical documents that were being used for patient safety and quality improvement efforts.

A Florida appeals court in 2015 overturned the trial court's decision and upheld the protection of medical information being used for patient safety efforts. The appellate court held that the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) preempted a provision in the Florida constitution, which might otherwise have required the recovery of the information.

The PSQIA, passed by Congress and signed into law by President George W. Bush with AMA support, offers physicians and hospitals a way to share medical information used for quality improvement through a PSO. Under the law, the confidentiality of data within these systems is protected if that data unless requested by a state administrative agency.

These patient-safety systems were created to allow hospitals and practices nationwide to share information about safety issues and incidents in order to improve quality and patient safety without the fear that this information could be used against health professionals in a medical liability case.

As the Litigation Center of the AMA and State Medical Societies noted in an amicus brief filed in support of the hospital's appeal of the trial court's ruling, the purpose of the PSQIA and PSOs is to "improve patient care and reduce risk through collective action."

"The trial court's decision threaten[ed] to undo … progress and undermine the valuable work that has been done by PSOs," the brief said. "Patients, who are the ultimate beneficiaries of the PSQIA, will suffer."

But, despite the need for protections, the Supreme Court of Florida has reversed the district court's decision concluding that a "health care provider or facility … cannot shield documents not privileged under state law or the state constitution by virtue of its unilateral decision of where to place the documents under the voluntary reporting system created by the [PSQIA]."

"[The PSQIA] was for the voluntary reporting system to function harmoniously within existing state reporting and discovery laws," the decision says. "[The PSQIA] was intended by Congress to improve the overall health care in this system, not to act as a shield to providers."