The ruling should be good news for both patients and healthcare providers, as it further promotes frank discussion in the wake of adverse events.
The Facts of the Case
In 2004, the New Jersey Legislature enacted the Patient Safety Act (N.J.S.A. 26:2H-12.23 to 12.25), which aims to deter medical errors by encouraging candor about adverse events. To further this end, the law created a new statutory privilege shielding specific communications from discovery in litigation.
Under N.J.S.A. 26:2H-12.25(f), certain documents related to the reporting of adverse events to regulators are shielded from discovery. Meanwhile, N.J.S.A. 26:2H-12.25(g)(1) protects communications generated in the setting of “self-critical analysis,” which refers to the internal process of evaluating and investigating adverse events.
The instant case, C.A. v. Bentolila, involved the discoverability of an internal report created in response to an alleged birth injury at The Valley Hospital (Hospital). Shortly after the adverse event, the Hospital conducted a staff "round-table" discussion as part of its investigation of the delivery and neonatal care. A hospital administrator prepared a memorandum memorializing the discussion.
The trial court concluded that because the Hospital had substantially complied with the Patient Safety Act in its investigation, the memorandum was subject to the law’s absolute privilege. The Appellate Division reversed, finding that the Hospital failed to comply with the requirements under the Patient Safety Act necessary to protect the document from discovery. In doing so, the appeals court retroactively applied regulations that were adopted by the Department of Health and Senior Services (Department) after the preparation of the memo at issue.
The Court’s Decision
By a vote of four to three, the Supreme Court of New Jersey held that the internal memo was not discoverable under the Patient Safety Act. In so ruling, the justices construed the Patient Safety Act in light of its purpose to encourage health care workers to freely report their observations and concerns related to patient safety in a confidential setting.
“The Legislature included in the Patient Safety Act a provision creating an absolute privilege,” Justice Anne Patterson wrote for the majority. “It reasoned that health care professionals and other facility staff are more likely to effectively assess adverse events in a confidential setting, in which an employee need not fear recrimination for disclosing his or her own medical error, or that of a colleague.”
The majority further noted that, at the relevant time, the only prerequisite to the privilege was compliance with the terms of the Patient Safety Act itself, given that the implementing regulations were not enacted until one year later. Accordingly, the justices found that the Hospital's evaluative process only need to conform to the statutory requirements, which it did.
As explained by the court, “This case did not arise in the setting of the detailed regulatory scheme that now exists... The discoverability of DV2 must therefore be determined in accordance with the Patient Safety Act itself, without imposing requirements that appeared for the first time in subsequent regulations.”
Appellate Division Judge Mary Cuff dissented and was joined by Chief Justice Stuart Rabner and Justice Barry Albin. They concluded that the Hospital did not comply with the Patient Safety Act because the personnel involved in the Hospital's self-evaluation process were not representative of the facility's various disciplines and did not have the appropriate competencies.
Medical providers need to be mindful of the detailed regulatory scheme adopted by the Department when conducting internal investigations into adverse events in order to be afforded the absolute privilege under the Patient Safety Act. Protection against disclosure of such internal investigations can further be secured by the assertion of common law privileges which the Patient Safety Act expressly was not to be interpreted to expand or diminish. N.J.S.A. 26:2H-12.25(f)(h) While not absolute privileges, the “self-critical analysis” privilege discussed at length in Christy v. Salem, 366 N.J. super. 535 (App. Div. 2004) and the” work product” privilege codified in R. 4:10-2(c) can serve to protect this investigative material from disclosure when conducted outside of the regulatory scheme. Under Christy, the party seeking the investigative material will need to articulate a “particularized need” for the information and a balancing of interests by the court will then ensue. The application of the work product privilege requires that the material be prepared in anticipation of litigation by an adverse party and that the party seeking discovery demonstrates a “substantial need” for the materials and that they are unable to obtain the substantial equivalent of the discovery without undue hardship. Rivard V. American Home Products, Inc., 391 N.J. Super. 129, 155 (App. Div. 2007)(citing. 4:10-2(c)). The strong statement of support from the court for “self-critical analysis” activities expressed in C.A. v. Bentolila will add weight to arguments asserting a common law privilege against disclosure.
If you have any questions about this case or would like to discuss how the Patient Safety Act may impact your company, please contact me, James Sharp or another member of Scarinci Hollenbeck’s Professional Liability and Health Care Group.
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