New Jersey hospitals are required by the Patient Safety Act (“PSA”) to establish multidisciplinary patient safety committees, to help evaluate the facilities’ patient care and safety practices. Among these committees’ obligations are to perform self-critical analyses, called a “Root Cause Analysis,” when there is a “serious preventable adverse event.” The PSA defines this type of event as “an adverse event that is a preventable event and results in death or loss of a body part or disability or loss of bodily function lasting more than seven days or still present at the time of discharge from a health care facility.” The committee must also report the event to the Department of Health.
Importantly, the PSA provides that any documents, materials, or information that the Department of Health receives concerning a serious preventable adverse event, a “near-miss,” a “preventable event,” or an “adverse event,” is to be shielded from discovery and is inadmissible as evidence in any civil, criminal, or administrative action or proceeding. These other events are also defined by the PSA. Additionally, health care facilities themselves have a privilege against disclosure of documents, materials, or information developed by them as part of the process of self-critical analysis of the aforementioned types of events. Department of Health regulations circumscribe this privilege, and reflect that the privilege will not attach unless the documents, materials, or information at issue were developed “exclusively” during the process of self-critical analysis, conducted in accordance with the PSA.
In the context of medical malpractice litigation and mandatory discovery, these privileges have been tested in recent cases. Notably, in Brugaletta v. Garcia, 234 N.J. 231 (2018), New Jersey’s Supreme Court addressed the scope of the privilege, and ruled that if the hospital complies with the procedures prescribed by the PSA, the privilege “unconditionally protects the process of self-critical analysis, the analysis’s results, and the resulting reports developed by a facility in its compliance with the PSA.” However, evidence of information that is otherwise discoverable or admissible is not shielded from discovery, if that information is obtainable from any other source or in any context other than those specified by the PSA. New Jersey regulations require health care facilities to include any “adverse incident” concerning the patient’s care in their medical records, and further provide that patients are entitled to “prompt access” to their own medical records. Thus, in Brugaletta, the court determined that it was apparent that an adverse incident had occurred, and that the “raw factual information” concerning the treatment was within the patient’s own medical records, created before any self-critical analysis. However, that information was “buried within mounts of [the] plaintiff’s patient records.” As such, the Court ruled that a defendant could be compelled to provide a plaintiff with a narrative to steer [the plaintiff] to that information … [so as to] identify, as they should have, an adverse incident to [the] plaintiff, … in language she could understand.”
In Trella v. Bradish, et al., A-3039-18T3, (App. Div. Oct. 8, 2019), an unpublished Appellate Division case published on October 8, 2018, the reach of Brugaletta was tested further. There, Newton Medical Center (and other appellants) appealed from a trial court order compelling them to identify an “adverse incident” within the plaintiff’s medical record, despite the hospital having certified that no such “adverse incident” was contained within the record. The hospital argued that it would have to go through the medical records and have someone, after the fact, identify an “adverse incident.” Further, the appellants objected on the basis that the medical records at issue were not nearly as voluminous as the records at issue in Brugaletta, and that the compulsion to issue a narrative regarding the records was without basis. A two-judge panel of the Appellate Division disagreed, and reiterated that the compulsion to provide a narrative regarding the medical records is a discretionary function of the trial judge, and unless abused, is not limited based on the number of documents or pages at issue. Thus, while self-critical analyses are and remain privileged under New Jersey law, health care facilities may nevertheless be forced to identify what they consider as “adverse incidents” for the benefit of plaintiffs.