NJ Appeals Court Finds Root Cause Analysis Absolutely Privileged

The Superior Court of New Jersey, Appellate Division, held in a May 4 decision that the Patient Safety Act establishes an ‘absolute privilege’ for documents that are required to be prepared by a health care facility for filing with the New Jersey Department of Health for incidents involving the injury or death of a patient. The three-judge panel, in its May 4 ruling in Conn v. Rebustillo, overruled a Sussex County Superior Court ruling by Judge Edward Gannon.

The Patient Safety Act (PSA), which was signed into law in 2004, was enacted to improve health outcomes through a review of medical errors. On its website, the Department of Health describes the Act by noting, “The statute was designed to improve patient safety in hospitals and other health care facilities by establishing a medical error reporting system. Rather than seeking to place blame, the system promotes comprehensive reporting of adverse patient events, systematic analysis of their causes, and creation of solutions that will improve health care quality and save lives.”

In Conn v. Rebustillo, patient David Conn fell from his hospital bed, suffered an “intracerebral hemorrhage” and died while staying at Newton Medical Center. As a result of his death, Newton was required under the PSA to file a “root cause analysis” (RCA) with the DOH. Conn’s wife, Patricia, filed a motion seeking to obtain a copy of the RCA, arguing that the report was not protected under the PSA because it did not fully comply with the Act. Judge Gannon, citing a 2004 decision that held discoverable the factual contents of a  peer review report that were prepared prior to the PSA’s enactment, held the RCA to be discoverable

Writing on behalf of the three-judge panel, Appellate Division Judge Marianne Espinosa wrote that the state legislature “recognized that it was critical to encourage disclosure by creating a nonpunitive culture” focused on improving outcomes rather than placing blame. Judge Espinosa went on to note that while RCAs should conform to those standards established by DOH, “receipt of the documents by the department…is sufficient to trigger the absolute privilege as to all documents.” While she did note that the PSA allows for certain parts of the RCA to be covered by the privilege while others were not, she stated that the “plain language of the statute does not condition the privilege upon the satisfaction of other criteria.” The ruling has significant meaning for hospitals and medical staffs and should provide comfort to providers that their findings in an RCA that conforms with the PSA will be protected from disclosure in a wrongful death or tort action.

Cooper Hospital Loses Battle for Increased Medicare Reimbursement A federal district court ruled on April 11 that Cooper Hospital was ineligible to receive additional Medicare Disproportionate Share Hospital (DSH) payments for the treatment of disadvantaged patients under the New Jersey Charity Care Program. Cooper argued that Medicaid-ineligible patients that who were nonetheless treated under the charity care program should have been included in computing the hospital’s DSH payment, which provides increased payment to hospitals with a high Medicaid patient population. Cooper asserted that the decision of the Department of Health and Human Services (HHS) to exclude patients of the charity are program violated its due process rights because HHC permits other charity care programs to be included in the payment calculation under Section 1115 waivers. Rejecting Cooper’s contention, the U.S. District Court for the District of Columbia ruled in Cooper Hosp./Univ. Med. Ctr. v. Burwell that there was a legitimate governmental purpose for distinguishing between Section 1115 waiver programs and other state charity care programs and including only Section 1115 program patients in DSH payment calculations because Section 1115 programs “promote the objectives of Medicaid.”