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Hospitals’ Internal Self-Reviews Remain Internal (NJ)

August 31, 2018

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In <a href="http://blog.wcmlaw.com/wp-content/uploads/2018/08/Brugaletta-v.-Garcia.pdf">Brugaletta v. Garcia</a>, the plaintiff sought emergency medical treatment at Chilton Memorial Hospital (“CMH”) and underwent multiple surgeries. Plaintiff’s doctor recorded that plaintiff missed doses of an ordered antibiotic, which plaintiff discovered after her medical records were turned over in discovery. When plaintiff inquired further, CMH admitted it possessed two internal self-critical reports regarding plaintiff’s care – but refused to produce them on the basis of privilege. Plaintiff filed a motion to compel their production, and CMH filed a cross-motion for a protective order.
The New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, et seq., sought to enhance patient safety by establishing an environment that mandates the confidential disclosure of the most serious, preventable adverse effects. Once disclosed, hospitals and other licensed healthcare facilities must convene patient safety committees, conduct self-critical peer reviews, and perform Root Cause Analyses to reconstruct and analyze cases to determine “what went wrong.” Serious Preventable Adverse Events (SPAE) must be reported. To encourage disclosures and self-reporting, these reports are protected by an absolute privilege. N.J.S.A. 26:2H-12.25(f). Unsurprisingly, the New Jersey plaintiffs’ bar has sought these internal records ever since.
In Brugaletta, the plaintiffs’ bar secured an initial victory. The trial court heard argument on plaintiff’s motion to compel and CMH’s cross-motion for a protective order and conducted an in camera review of the related incident reports. After the review, the trial court found the reports were correctly classified as self-critical analyses under the PSA. Surprisingly, however, the trial court usurped CMH’s decision that plaintiff’s case did not amount to a SPAE. The trial court fashioned a remedy – the disclosure of a redacted self-critical report – that attempted to honor the privilege but reveal the SPAE to the plaintiff.
The New Jersey Supreme Court agreed with the Appellate Division and ruled the trial court exceeded its authority in declaring a SPAE actually occurred, and in issuing related orders that CMH disclose to plaintiff a redacted version of the self-critical report. According to the Court, the legislature inserted no role for a trial court to play in reviewing the SPAE determination made by a patient safety committee of a health care facility. Additionally, the Court ruled the legislature intended to encase the entire self-critical analysis process in privilege; it is not limited to Serioues Preventable Adverse Events.
Thanks to Brent Bouma for his contribution to this post. Please email <a href="mailto:vpinto@wcmlaw.com">Vito A. Pinto</a> with any questions.

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