Patient Safety Act Alert: New Jersey Supreme Court Held Hospital’s Internal Review was Not Discoverable
On September 29, 2014, the Supreme Court of New Jersey (“NJ Supreme Court”) held in a 4-3 decision that all materials prepared “exclusively” for internal use and “as a process of self- critique analysis” are entitled to absolute privilege from discoverability under the New Jersey Patient Safety Act (“PSA”). The NJ Supreme Court said under the PSA, the defendant (a New Jersey hospital) could withhold a memorandum from discovery that was drafted for internal use. Nonetheless, this holding and the NJ Supreme Court’s broad interpretation of the PSA in favor of the New Jersey hospital should not be read too broadly. The PSA does not provide protection for documents where the documents were not generated for purposes of the PSA. Moreover, the facts in this case were circumstantial and the NJ Supreme Court’s three dissenters gave strong reasoning to their position in favor of the plaintiff that may allow a lower court to rule against a hospital in a future case surrounding documents protected by the PSA.
The case, C.A. v. Bentolila, addresses whether a hospital staff memorandum investigating an adverse event is discoverable in a malpractice suit against the hospital. Plaintiffs claimed that their newborn sustained permanent injuries during her birth on May 26, 2007, as a result of care received in the hospital. In a roundtable discussion, the hospital staff discussed the delivery and neonatal care given to C.A. During the discussion, a hospital administrator drafted a memorandum of the discussion (“DV2”). The NJ Supreme Court held that DV2 was not discoverable under the PSA for the following reasons:
- DV2 was written before regulations further implementing the PSA were promulgated in 2008. Therefore, DV2 must be analyzed solely under the PSA’s 2004 language. The PSA was enacted in 2004 with the legislative intent that it not “eliminate or lessen a hospital’s obligation under current law or regulation,” but that it help prevent future adverse events from occurring in a hospital or other health care facilities. The PSA required the creation of a “patient safety committee,” but left the details of these committees to be determined by regulation. Regulations further implementing the PSA became effective four years later in 2008. Hospitals were urged to create patient safety committees by June 1, 2008.
DV2 was written in 2007 and, thus, the NJ Supreme Court held that DV2 should be analyzed only under the PSA statute and not the subsequent regulations. The PSA statute shields evaluative documents from discovery when they are created for the purposes of investigating adverse events and in connection with self-critical analysis. The question for the NJ Supreme Court then turned to whether the document was created for self-critical analysis.
- DV2 was used for self-critical analysis. Under the PSA, hospitals are required to create a safety plan with a minimum of four components: i) a patient safety committee; ii) a process for teams of facility staff to conduct ongoing analysis and apply evidence-based patient safety practices; iii) a process for medical staff to conduct analyses of near-misses; and iv) a process for delivering ongoing training for medical staff. The NJ Supreme Court found that the defendant complied with the four components when creating a safety plan for discussing the birth of the plaintiff’s daughter. DV2 was therefore a product of the safety plan and self-critical analysis.
- DV2 is subject to the PSA’s absolute privilege. The PSA provides for an absolute privilege for documents that it applies to. The NJ Supreme Court said an absolute privilege is necessary because hospitals need the ability to maintain privacy of internal documents to promote candidness and confidentiality among health care providers and hospital staff when a mistake is made. They noted that the New Jersey State Legislature believed that hospital staff would more likely speak freely in a confidential setting during a self-analysis critique if they felt they would not face recrimination after making disclosures of their own medical error or a medical error made by a colleague. The NJ Supreme Court agreed and said that the overarching goal of the PSA is to allow health care providers and staff to openly assess adverse events for future prevention of such occurrences.
The recent NJ Supreme Court decision pioneers a favorable interpretation of the PSA toward hospitals and health care facilities. The primary reasons for the decision are that the defendant was in compliance with the regulation in place at the time of DV2’s creation, and the NJ Supreme Court did not expect the defendant to anticipate subsequent regulations. Further, the NJ Supreme Court wanted to uphold the intent of the PSA that encourages self-analysis of hospital staff and gives a privilege to hospitals to have open dialogue when reviewing their procedures and adverse events. The NJ Supreme Court’s dissenting justices focused on who attended the roundtable discussion when DV2 was drafted. The dissenters criticized the defendant for forming its patient safety committee with three non-physician directors. Under the 2008 regulations, the patient safety committee composition in this case may not be enough to warrant protection of an internal review; thus, health care facilities may want to heed the warnings sounded in the dissent when composing a patient safety committee. A similar case raising the issue of whether clinical documents are protected under the PSA may not result in the defendant’s favor if the facility cannot meet the elements raised in this case by the NJ Supreme Court majority and address the concerns of the dissenters.