NJ Supreme Court Strikes a Compromise, Affirming Self-Critical Analysis Privilege While Ordering Narrative Responses to Interrogatories Seeking Underlying Facts

Business Litigation Alert

A recent New Jersey Supreme Court decision affirmed a hospital’s right to keep confidential internal reviews of adverse events in the medical malpractice context while simultaneously ordering a narrative response to an interrogatory for the purpose of disclosing the underlying raw factual information related to the claim of medical malpractice.  

The New Jersey Supreme Court’s decision in Brugaletta v. Calixto Garcia, D.O. arose from an appeal related to a discovery dispute between the plaintiff and defendant hospital in a medical malpractice suit. Plaintiff Janell Brugaletta presented to defendant Chilton Memorial Hospital’s (the “Hospital”) emergency room where she was admitted and underwent multiple surgical procedures. The Plaintiff’s conditions included a flesh-eating bacterial infection which required regular dosing of antibiotics. Despite an order from the Plaintiff’s doctor ordering the dosing, health care professionals at the Hospital allegedly failed to regularly dose the Plaintiff with antibiotics. 

During discovery, Plaintiff served interrogatories on the Hospital requesting, among other things, anyone who made or was aware of a “statement regarding th[e] lawsuit.” The Hospital objected and indicated that it was withholding two reports on the basis of the self-critical analysis privilege. The plaintiff filed a motion to compel and the Hospital filed a motion for a protective order. The trial court heard arguments on the motions and conducted an in camera review of the reports during which the court heard ex parte arguments by the Hospital’s attorneys. The trial court ordered production of a redacted version of one of the reports, a compromise which was intended to respect the self-critical analysis privilege contained in the Patient Safety Act, N.J.S.A. 26:2H-12.23-12.25c (“PSA”), while also providing the facts of a Serious Preventable Adverse Event (“SPAEs”) as defined by the PSA. 

The Appellate Division reversed the trial court’s order, shielding the redacted report from discovery, and the Supreme Court granted plaintiff’s motion for leave to appeal. The New Jersey Supreme Court both affirmed the Appellate Division’s order (finding that the self-critical analysis privilege prevented disclosure of the reports) and reversed the Appellate Division’s order (finding that the defendant still had unmet discovery obligations under Rule 4:17-4(d)). First, the Court found the reports completely shielded from disclosure, recognizing that the Legislature’s enactment of the PSA “sought to encourage self-critical analysis related to adverse events and near misses by fostering a non-punitive confidential environment in which health care facilities can review internal practices and policies and report problems without fear of recrimination while simultaneously being held accountable.” The Court recognized the importance of self-critical analysis committees which are designed, in part, to recognize and report SPAEs to the Department of Health (“DOH”). “Notably, the PSA confers a privilege on a facility’s self-critical analysis and the reporting of a SPAE to the DOH” and “bars discovery of any documents, materials, or information received by the DOH” in the context of reporting a SPAE. As a result, the Court found the two reports, which were generated as part of the Hospital’s self-critical analysis of the Plaintiff’s care, to be protected from disclosure. The Court also reaffirmed its prior dicta holding that “the finding that an event is not reportable” as an SPAE under the PSA “does not abrogate the self-critical analysis privilege.” 

Even though the Court’s ruling recognized the PSA’s protection for self-critical analysis, the Court also found that the PSA “did not abrogate existing health care law and does not immunize from discovery information that would otherwise be discoverable.” Although the Court found that the defendants “rightly did not object to release of the raw underlying factual data and did, in fact, produce that material,” it found that the “Plaintiff was unquestionably entitled to the raw data contained in her patient records” which was “buried within mounds of plaintiff’s patient’s records.” Because the Hospital was able to provide the court a “concise step-by-step narrative” and walk the court through the Plaintiff’s medical records to demonstrate it had provided the Plaintiff with the underlying non-privileged facts about her care, the Court found that the trial court should have used its common law powers in administering the discovery rules to order the Hospital to provide the Plaintiff a narrative similar in form to what was presented to the Court. 

The takeaway from this case is that courts respect the special protections afforded to self-critical analysis reviews under the PSA, regardless of whether the healthcare facility finds that a reportable event occurred. Nevertheless, the courts may engage in discovery compromises by requiring a responding party to provide narrative responses to an interrogatory, rather than reference to documents produced in the ordinary course of business, to ensure that the Plaintiff gains access to the underlying factual data which relates to that self-critical analysis review.