In an opinion issued on September 29, 2014, the Supreme Court of New Jersey (“New Jersey Supreme Court”) sided with a hospital that claimed that its investigative memorandum into an alleged medical malpractice occurrence was a privileged document under New Jersey’s Patient Safety Act and therefore was not subject to disclosure.
The New Jersey Supreme Court held that a memorandum memorializing a round-table discussion by hospital staff investigating the “adverse event” was shielded from discovery under New Jersey’s Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25.
New Jersey’s Patient Safety Act (“the Act”) was enacted in 2004 with the stated goals of reducing the incidence of medical errors that may endanger patients in health care facilities and promoting self-critical evaluation by professional and administrative staff, by encouraging health care workers to candidly disclose their observations and concerns. However, the regulations implementing compliance with the provisions of the Act were not promulgated until 2008.
The Underlying Facts
A woman who was 41-weeks pregnant was admitted to the defendant hospital on May 26, 2007. Her baby was born later that same day but suffered serious brain injuries that the plaintiffs alleged were due to medical negligence at the hospital (the Defendants maintained that the injuries were due to unpreventable birth complications).
The defendant hospital conducted an investigation into the so-called “adverse event.” The hospital’s Director of Patient Safety created a memorandum on June 2, 2007, after the hospital staff conducted a round-table discussion of the baby’s delivery and neonatal care. The plaintiff sought to discover (be provided a copy of) the memorandum but the hospital refused to provide a copy, relying on the absolute privilege it alleged that it enjoyed under the Act.
The plaintiffs alleged that the defendant hospital failed to comply with the provisions of the Act with regard to the memorandum. The New Jersey Supreme Court held that the defendant hospital complied with the provisions of the Act in effect at the time, which shields from discovery documents, materials or information developed “as part of a process of self-critical analysis” and requires a safety plan that includes, at a minimum, four components: establishment of a patient safety committee; a process for teams of facility staff to conduct ongoing analysis and application of evidence-based patient safety practices; a process for teams of facility staff to conduct analyses of near-misses; and, a process for the provision of ongoing patient safety training for facility personnel.
The New Jersey Supreme Court stated that the hospital was not required to comply with the regulations regarding the Act that were promulgated in 2008, which expanded the standard for determining applicability of the privilege to require that the documents, materials and information at issue be “exclusively” prepared in the setting of a qualifying self-critical analysis process and to mandate that the self-critical analysis be conducted in accordance with one of three accompanying regulations.
The New Jersey Supreme Court held that the defendant hospital had satisfied all four components of the patient safety plan under the Act and that the memorandum was prepared “as part of a process of self-critical analysis” pursuant to the Act. Therefore, the memorandum was privileged, not subject to discovery, and should not be used for any purpose in the case.
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