BRUGALETTA V. GARCIA: NEW JERSEY SUPREME COURT ISSUES OPINION ON THE PATIENT SAFETY ACT

I.  INTRODUCTION

In Brugaletta v. Garcia, (A-66-16) (079056) (July 25, 2018), the New Jersey Supreme Court, in a 6-1 decision, decided several matters of first impression under the New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23 to 12.25(c).  A close reading of the opinion is a necessity for any medical malpractice practitioner and especially for hospital defense counsel.

II.  FACTS

On January 12, 2013, plaintiff Janell Brugaletta went to the emergency room of Chilton Memorial Hospital (“CMH”) suffering from a week’s fever together with abdominal and body pains.  After being admitted to the hospital, she was diagnosed with a pelvic abscess due to a perforated appendix.  The abscess was drained, relieving the patient from abdominal pain, but her leg pain worsened.

A diagnosis of developing necrotizing fasciitis in her lower body led to several more surgeries.  During this time, her physician discovered that the plaintiff had missed dosages of an antibiotic he had ordered.  While the omission was noted in her medical record, the patient was never told of the missed antibiotic.

After a three week admission, the plaintiff’s abscess and abdominal pain had resolved, but she claimed to be suffering from residual pain and permanent injuries in her lower body.  Two years after her admission, she brought suit against her treating physician and CMH.  There was no allegation concerning the missed antibiotic doses.

III.  LOWER COURT PROCEEDINGS

        A.  Trial Court

During the course of discovery, plaintiff served interrogatories on CMH seeking the details and substance of any statement “regarding this lawsuit.”  CMH identified two reports, but claimed privilege based on the PSA.  Plaintiff filed a motion to compel, and CMH countered with a motion for a protective order.  The trial court heard arguments on the motions and conducted an in-camera review of the documents.

The court ultimately ordered the production of one of the reports, marked DCP-1.  The trial court found that the report was created pursuant to the PSA.  The court determined, however, that contrary to the conclusion of the hospital’s patient safety committee, the patient had suffered a Serious Preventable Adverse Event (“SPAE”) which triggered certain reporting obligations to the New Jersey Department of Health (“NJDOH”) that CMH had failed to meet.  Plaintiff contended, among other things, that the failure to report pierced the applicability of any privilege under the PSA. The trial court fashioned a remedy requiring that the hospital produce a redacted version of DCP-1, removing any self-critical analysis, but leaving factual statements, and ordering that the hospital report the SPAE to the DOH.  The court stayed the order while the parties pursued appeals.

        B.  Appellate Division

The Appellate Division reversed the trial court’s order. The Appellate Division held that the only condition to establishing privilege under the PSA is that the hospital performs the self-critical analysis in compliance with the PSA and its implementing regulations.

The Appellate Division further ruled that the trial court had erroneously concluded that an SPAE had occurred and, therefore, erred in ordering the hospital to report to the DOH.  To find that an SPAE had occurred, a supporting expert opinion, lacking in this instance, was essential.  The New Jersey Supreme Court granted plaintiff’s motion for leave to appeal.

IV.  THE NEW JERSEY SUPREME COURT’S RULING

On appeal, the Supreme Court upheld the Appellate Division’s decision that “the only precondition to the application of the PSA’s privilege is whether the hospital performed its self-critical analysis in procedural compliance with [the PSA] and its implementing regulations.”  So long as “procedural compliance is present”, the statute’s “broad” privilege protections apply.    This “broad” protection shields from discovery the process of self-critical analysis, beginning to end, “including its outcome.” Commenting that the PSA created “an absolute privilege,” the Supreme Court held that a trial court is prohibited from ordering the disclosure of documents prepared during the process of self-analysis, even in a redacted form.  The privilege encompasses any SPAE report to the DOH.

The Supreme Court set forth the procedure which must be followed when a privilege is asserted.  A party who claims privilege over a requested document may withhold the document by asserting the privilege and describing the nature of the information withheld.  On a motion to compel, the trial court must conduct an in-camera review of the document over which the privilege is claimed and make specific rulings as to the applicability of this privilege.  The court must determine that the privilege was properly invoked and that it bars disclosure of the information sought.

Furthermore, the Supreme Court held that both the trial court and Appellate Division erred in determining whether the hospital committee was mistaken in determining that no SPAE had occurred. It is the responsibility of the DOH to oversee hospitals in this regard, and it is empowered to impose civil monetary penalties for certain violations of the statute.    According to the Court, “[t]he Legislature inserted no role for a trial court to play in reviewing the SPAE determination …”  Therefore, the trial court erred in endeavoring to determine that a SPAE occurred, in ordering that a redacted version of the privileged document be disclosed by the hospital to its litigation adversary and by ordering the hospital to report the SPAE to the DOH.

At the same time, the Court reiterated, “[T]he PSA did not abrogate existing health care law and does not immunize from discovery information that would otherwise be discoverable.”    Although the PSA privilege protects certain documents containing self-critical analysis from discovery, it does not prohibit discovery of “the raw underlying factual material” found in medical records.  In fact, the hospital produced over 4500 pages of records, but the key information lay within 9 pages buried therein.

Addressing the rules of discovery and the mere production of documents in response to an interrogatory, the Supreme Court observed that the trial court should have ordered the defendant hospital to create “a narrative that specifies for the requesting party where the responsive information may be found.” While the Supreme Court is not suggesting that such a narrative “be routinely provided,” one may be warranted where the responsive information is located somewhere throughout voluminous records of the responding party and the burden of providing the specification is less on the responding party than on the requesting party to mine the records for the information.

V.  ANALYSIS

In Brugaletta, the Supreme Court established the breadth of the PSA privilege.  Assuming compliance with the strictures of the PSA, the privilege envelops the entire self-critical analytical process.  The privilege “unconditionally protects the process of self-critical analysis, the analysis’s results and any resulting reports,” including SPAE reports made to the DOH in compliance with the PSA. A provider’s failure to report a SPAE does not vitiate the privilege.

In order to claim the privilege, it must be asserted with specificity, and the nature of the information must be described.  Upon a motion to compel, it is incumbent upon the trial court to review the allegedly privileged documents in camera in order to determine that the privilege was properly asserted and covers the subject document.  The trial court is then obligated to rule upon the privilege claim with specificity.

The Supreme Court reiterated that underlying factual information related to an incident available from other sources remains fully discoverable.  The Supreme Court endorsed a remedy requiring a responding party to create a narrative for the requesting party describing where responsive information can be found in voluminous records.

In Brugaletta, the Supreme Court clarified that the state privilege envelops the entire self-critical process.  This is similar to the federal privilege under the Patient Safety and Quality Improvement Act of 2005 (“PSQIA”) pursuant to which deliberations and analysis conducted within a provider’s patient safety evaluation system are privileged.  At the same time, the PSA offers protection to mandated SPAEs which the PSQIA likely would not.  Under the PSQIA, state-mandated reporting requirements cannot be satisfied with privileged material.