In its decision filed on May 4, 2016, the Superior Court of New Jersey Appellate Division (“Appellate Court”) ruled that the privilege afforded by the New Jersey Patient Safety Act (“PSA”) is absolute, covering all “documents, materials, or information received by the department” and attaches to those items upon receipt by the New Jersey Department of Health.
The New Jersey Patient Safety Act
The New Jersey Patient Safety Act (N.J.S.A. 26:2H-12.23 to -12.25) establishes an absolute privilege for two categories of documents: (1) documents received by the Department of Health pursuant to the mandatory reporting requirement (N.J.S.A. 26:2H-12.25(c) (subsection (c)) or the voluntary disclosure provision (N.J.S.A. 26:2H-12.25(e) (subsection (e)), pursuant to N.J.S.A. 26:2H-12.25(f) (subsection (f) privilege), and (2) documents developed as part of a “self critical analysis” that might never be provided to the Department of Health, pursuant to N.J.S.A. 26:2H-12.25(g) (subsection (g) privilege).
The Underlying New Jersey Medical Negligence Case
In the case it was deciding, the plaintiff had filed a New Jersey medical malpractice case against a hospital and others on behalf of her husband’s estate and herself after her husband fell from his hospital bed, suffered a severe intracerebral hemorrhage, and subsequently died. As a result, the defendant hospital was required to prepare a root cause analysis (“RCA”) of the event and file its report with the Department of Health.
During the course of discovery in the medical malpractice action, the plaintiff filed a motion to compel discovery of the RCA, and the defendants filed a cross-motion for a protective order. The trial judge granted the plaintiff’s motion to compel in part, requiring the defendants to provide the underlying facts included in the RCA, and denied the defendants’ motions for a protective order and reconsideration. The defendants appealed.
The plaintiff argued on appeal that because the RCA and the process through which it was created did not satisfy the PSA, the trial court correctly applied the common law standard that the Appellate Court found applicable to a peer review committee report in a 2004 appellate case. The Appellate Court stated that the plaintiff was arguing that the defendant hospital must show it fully complied with all applicable regulations before the RCA received by the Department of Health is protected by privilege.
The Appellate Court noted that the document at issue in the 2004 appellate case was created well before the effective date of the PSA and was not submitted to the Department of Health pursuant to subsections (c) or (e) of the PSA. Therefore, in the 2004 case, the Appellate Court applied a common law standard, adopting a balancing test of the competing interests at issue: the plaintiff’s right to discover information concerning his care and treatment for purposes of his litigation and the public interest to improve the quality of care and help to ensure that inappropriate procedures, if found, are not used on future patients.
In the present case, the Appellate Court stated that the trial court’s reliance on the common law standard was misplaced because the issue in the present case is governed by the provisions of the PSA.
The Appellate Court held that in order to ensure the confidentiality of both the mandatory disclosures made pursuant to N.J.S.A. 26:2H- 12.25(c) and the voluntary disclosures that are encouraged by N.J.S.A. 26:2H-12.25(e), those disclosures are protected by an absolute privilege.
The Appellate Court further held that receipt of the documents by the Department of Health pursuant to the two reporting provisions is sufficient to trigger the absolute privilege as to all documents so received (the plain language of the statute does not condition the privilege upon the satisfaction of any other criteria).
The Appellate Court held that the privilege established by subsection (f) is not subject to review to determine whether the health care facility complied with the “process requirements” set forth in the PSA, and the statute provides no rationale or standard for parsing the contents of the documents, allowing for some portions to be privileged and others not privileged.
With regard to the privilege afforded to internal documents by subsection (g), the Appellate Court stated that the privilege only attaches if the contents are “developed . . . as part of a patient safety plan” that complies with the requirements set forth in N.J.S.A. 26:2H-12.25(b).
Source Conn v. Rebustillo, et al., Docket No. A-1421-15T3.
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