N.J. Supreme Court Clarifies Scope of “Self-Critical Analysis” Privilege in Medical Malpractice Cases
New Jersey's Patient Safety Act (PSA) was enacted to encourage confidential reporting of “adverse events” by healthcare facilities in order to reduce medical errors. To further this goal, the PSA created a legal “self-critical analysis” (SCA) privilege for health care facilities. Pursuant to the SCA privilege, when health care facility’s patient safety committee (PSC) conducts a critical self-evaluation as to whether a serious preventable adverse event (SPAE) affecting a patient occurred, documents, materials, or information developed exclusively during the process of self-critical analysis are not subject to discovery or admissible as evidence in a subsequent medical malpractice lawsuit. The purpose is to establish a non-punitive culture that focuses on improving processes rather than assigning blame. See N.J.S.A. §26:2H-12.24. The PSA requires the PSC to report the SPAE to the Department of Health and to the affected patient.
On July 25, 2018, the New Jersey Supreme Court issued its decision in Brugaletta v. Garcia, 234 N.J. 225 (2018), which directly addressed the application of the SCA to a discovery dispute in a pending medical malpractice lawsuit. The plaintiff sought care at the defendant health care facility’s emergency room. She ultimately required multiple surgeries due to complications from a perforated appendix. As relevant here, the plaintiff's treating physician ordered a number of antibiotic doses that were never administered. The plaintiff's lawsuit alleged that due to the lack of the antibiotics and other “deviations from standards of medical care,” she sustained serious injuries.
In the course of pre-trial discovery, the plaintiff sought access to two incident reports prepared by the hospital’s PSC as part of its internal review of the care rendered. After reviewing the reports in camera, the trial court ordered the defendant to disclose a redacted version of one of the incident reports, identified as DCP-2 (the other incident report was not a subject of contention). The trial court found, contrary to the hospital’s determination, that the report revealed that the plaintiff had suffered a SPAE under the PSA. On appeal, the Appellate Division reversed the trial court, holding that the entire report was protected by the SCA privilege.
The New Jersey Supreme Court agreed with the Appellate Division’s decision. While acknowledging that the trial court followed proper procedure by reviewing the reports in camera, the Supreme Court found that the trial court exceeded its authority by holding that a SPAE reportable event had occurred because the PSA did not permit a court to review a patient safety committee’s SPAE determination. While the trial court may examine the “facts underlying the claim” of the SCA privilege, the Supreme Court held that a judge may not conduct an independent review of a health care facility's finding that an SPAE did or did not occur. Such determinations are an “administrative function” delegated to a hospital's patient safety committee under the PSA.
The Supreme Court next discussed whether a health care facility’s determination that an event was not reportable abrogated the SCA privilege. In reviewing the language and structure of the PSA, the Supreme Court held that the only precondition to application of the PSA privilege was whether the hospital performed its self-critical analysis in compliance with N.J.S.A. 26:2H-12.25(b). A hospital does not have to find a SPAE occurred in order to invoke the SCA privilege. Thus, whether a SPAE occurred is of no consequence to the privilege determination. As such, the Supreme Court found that the trial court abused its discretion by concluding that a SPAE occurred and ordering the hospital to release a redacted version of DCP-2.
This was not the end of the matter, however, as the Supreme Court noted that the defense still had “unmet” discovery obligations. Specifically, the Supreme Court pointed to an incomplete answer provided by the defendant to the plaintiff’s interrogatory requesting the names and addresses of anyone who made or was aware of “a statement regarding [the] lawsuit,” as well as access to, or a summary of, the statement, unless subject to a claim of privilege. In its answer to plaintiff’s interrogatory, the defendant revealed the existence of two incident reports, but that the information contained within them was protected from disclosure by the SCA privilege. The Supreme Court held that “the privileges provided in the PSA do not bar the discovery or admission into evidence of information that would otherwise be discoverable or admissible.” Even though particular information may have been developed in the process of a self-critical analysis, “such material may nevertheless be discoverable and admissible if it is obtainable from any other source or in ‘any…context other than those specified’ in the PSA.”
In Brugaletta, there were multiple notations scattered throughout the plaintiff's medical records that would, when properly connected, inform the plaintiff of “an adverse incident related to her care.” The Supreme Court held that in such an instance, the court can order the defendant to provide “a narrative that specifies where responsive information may be found” to a legitimate discovery request. In finding that a narrative response was necessary in this case, the Supreme Court focused on the fact that the plaintiff received no specification or narrative to accompany the approximately 4500 pages of medical records turned over during discovery that would have led her to the discrete, yet interconnected notations of the incident that appeared on nine pages of the record.
The Supreme Court indicated that it was not suggesting that such a narrative be routinely provided in discovery. However, compelling the narrative was within the range of court-ordered remedies that could be required to resolve discovery disputes. The upshot is that while a plaintiff may not obtain any documents or reports prepared as part of a self-evaluation under the PSA, the Supreme Court’s focus in Brugaletta on this discovery remedy will undoubtedly raise disputes over the accuracy and sufficiency of a defense counsel’s narrative response when one is ordered to be provided by the court.
If you have any additional questions about how this ruling may affect a medical malpractice case in which you are involved, contact Benjamin H. Haftel or call 732-545-4717 today.