In 2004, the Patient Safety Act (hereinafter “PSA”) was passed by the New Jersey Legislature with the intent to improve patient safety in hospitals and other health care facilities by establishing a medical error reporting system, and to minimize adverse events which were the result of systemic failures in hospitals and health care facilities.  Pursuant to the PSA, N.J.S.A. 26:2H-12.23 et. seq., health care facilities must establish a patient safety plan in order to improve the health and safety of patients at their facilities, and must also establish a patient safety committee.  C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 461 (2014)

Because the PSA was designed to encourage health care workers to candidly disclose their observations and concerns in order to promote self-critical evaluation, which ultimately improves patient safety, an absolute statutory privilege was created to “shield” specific communications from discovery in litigation. Applegrad, supra, 219 N.J. at 464; See also N.J.S.A. 26:2H-12.25(b) (c), (e), and (g). The Legislature noted that it was “critical” to encourage health care workers to candidly disclose their observations and concerns by “creat[ing] a non-punitive culture that focuses on improving processes rather than assigning blame”.  N.J.S.A. 26:2H-12.24 (e). 

Under the PSA, there are two categories of documents that are presently afforded privileges.  Subsection (f) of N.J.S.A. 26:2H-25 provides an absolute privilege to documents received by the Department of Health pursuant to the mandatory or voluntary disclosure provisions under subsections (c) (serious preventable adverse events) and (e) (near misses, preventable events and adverse events).  The subsection (f) absolute privilege applies to all documents, materials or information received by the Department of Health pursuant to the mandatory and voluntary disclosures under subsections (c) and (e). See also Applegrad, supra, 219 N.J. at 467.  The Appellate Court in Conn v. Rebustillo, 445 N.J. Super. 349, 355 (App. Div. 2016) observed that “the plain language of the [PSA] does not condition the privilege upon the satisfaction of any other criteria.”  In other words, the subsection (f) privilege is not subject to review to determine whether the health care facility substantially complied with the process requirements of the PSA. Id. at 357.  Rather, it is an absolute privilege.

Subsection (g) of the PSA provides a similar and absolute privilege to documents that are not submitted to the Department but are created as part of the “self-critical analysis” under the PSA.  In Conn, the Appellate Court clarified the distinction between the thresholds for application of the privilege under subsections (f) and (g), and cited to subsection (g), which provides, in pertinent part: 

Any documents, materials, or information developed by a health care facility as part of a process of self-critical analysis conducted pursuant to subsection b. of this section concerning preventable events, near-misses, and adverse events, including serious preventable adverse events . . . shall not be

(1) subject to discovery or admissible as evidence or otherwise disclosed in any civil,   criminal, or administrative action or proceeding . . . .

[Emphasis added.]   Conn, supra, 445 N.J. Super. at 356.

Accordingly, while subsection (f) of the PSA shelters all documents that are "received by the department" from discovery, the privilege afforded to internal documents that fall under subsection (g) only attaches if the documents 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). Applegrad, supra, 219 N.J. at 469.  

It is therefore critical for health care facilities to understand the PSA and its regulations so that they can ensure that their documents and communications related to post-incident investigations are privileged. Otherwise, the facilities run the risk of having their internal documents exposed during discovery, which may jeopardize their ability to properly investigate, review and analyze the quality of care provided to their patients. 

For questions, concerns or more information, feel free to reach out to me by phone (732) 545-4717 or email at sflynn@hoaglandlongo.com