NJ Supreme Court Reverses Superior Court Ruling, Finds in Favor of Patient Safety Act’s Privilege of Self-Critical Analysis

The New Jersey Supreme Court recently reversed a finding that an internal memorandum conducted following a roundtable review of an infant’s anoxic injury was discoverable and concluded that New Jersey’s 2004 Patient Safety Act rendered the document privileged. In light of legislation further defining the processes that healthcare facilities must follow in order to receive the Act’s absolute privilege, however, such privilege will not attach for self-critical analyses that occur after 2008 and do not comport with the legislation’s procedures.

The case at the trial level involved the delivery of a baby in a breech position. A defendant physician elected to pursue vaginal delivery, which plaintiffs alleged constituted a breach of the standard of care. At birth, the baby had an Apgars score of 2 and she was intubated. Plaintiffs claim that their daughter’s intubation tube was not functioning properly and allege that a pediatrician failed to properly resuscitate the baby. As a result, the baby suffered permanent brain damage.

Following these events, the hospital reviewed the care and several administrators documented their findings in a memorandum entitled “Director of Patient Safety Post-Incident Analysis.” The document included findings from a roundtable discussion that included several hospital administrators. Of those people, only the Director of Patient Safety was a member of the hospital’s Patient Safety Committee. The roundtable determined that the baby’s brain damage occurred because of medical complications and not any mismanagement and, therefore, the hospital did not need to report the incident. Plaintiffs moved to compel the memorandum and, after an in camera review, the trial court ruled that it was privileged under the Patient Safety Act. Plaintiffs filed for leave to appeal and brought the issue before the appellate court.

At the appellate level, the plaintiffs’ motion was remanded for further inquiry and the defendant hospital reframed its argument, basing it on the Patient Safety Act. The Act mandates healthcare facilities to establish a patient safety plan to improve the health and safety of its patients. Its intended purpose is to allow healthcare providers to report their observations and concerns freely and candidly without fear that their findings will result in repercussions during litigation. The New Jersey legislature promulgated additional regulations in 2008—after the events at issue—concerning the Act’s implementation and created additional requirements for a patient safety committee, including quarterly meetings with recorded minutes. The patient safety committee would also be charged with assembling an appropriate team to conduct root cause analyses of adverse events. Following the legislature’s enactment of these requirements, healthcare facilities must follow the outlined procedures in order to claim privilege for self-critical analyses.

At the appellate level, plaintiffs argued that the document at issue was discoverable because the hospital administrators failed to comport with the Patient Safety Act’s regulations. The appellate panel agreed and ruled that the memorandum was subject to discovery. Defendants’ sought leave to appeal to seek review of the appellate decision. The New Jersey Hospital Association and the New Jersey Association for Justice filed amicus briefs in support of the defendants and plaintiffs respectively.

The Supreme Court held 4 to 3 that the case did not take place “in the setting of the detailed regulatory scheme that now exists” following the 2008 legislation and accordingly it did not matter that the defendant hospital did not follow the policies the legislation mandated. Therefore, the Court held that the memorandum’s discovery had to be analyzed within the context of only the Patient Safety Act and its decision pivoted on whether the document was created in a “process of self-critical analysis conducted as part of a patient safety plan.” The majority of the Court determined that the analysis met the purposes of the Patient Safety Act because it attaches privilege to information generated by healthcare facilities that is part of the investigative process that may or may not lead to the reporting of adverse events to regulators.

The three dissenting justices agreed not to retroactively apply the 2008 legislation, however, they found that the hospital administrators who authored the memorandum were not a patient safety committee and accordingly their findings were not entitled to the Patient Safety Act’s absolute privilege. They held that the privilege only applied when a hospital follows the 2004 statute’s procedures, which includes implementing a patient safety plan with teams specializing in various medical disciplines to appropriately evaluate adverse events and near misses. In this case, the dissenting justices found that the roundtable investigation conducted by the hospital administrators did not constitute a review committee.

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