Med Mal News

A New Jersey appeals court has held that while a state law aimed at promoting patient safety by requiring hospitals to report serious mistakes provides an absolute privilege against disclosure, the privilege does not extend to every report prepared concerning such incidents. The opinion in Applegrad v. Bentolila, A-1261-11, is the first to explain the boundaries of the 2004 Patient Safety Act (PSA), which was enacted in response to nurse Charles Cullen's murders of many hospital patients in New Jersey and Pennsylvania. The Applegrad case involved a baby born brain damaged, allegedly because of a negligent decision to deliver him vaginally despite a breach presentation, and/or because he was resuscitated incorrectly. The plaintiffs sought several records from the hospital, two of which the hospital claimied were privileged from discovery: a post-incident analysis made by the director of patient safety and the ob-gyn department's quality assurance response. The defendants relied not only on the confidentiality provisions in the PSA, but also on the common-law qualified privilege of Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004), decided two months before the PSA became law, which allows access to factual information but not to information concerning deliberations or evaluations. The appeals court held that “post-event investigatory and analytic documents exclusively created in compliance with the PSA and its associated regulations, and not created for some other statutory or licensure purpose, are absolutely privileged from disclosure under the PSA.” However, the court explained that documents created for non-PSA purposes, or created in violation of the law's procedural requirements, are not so privileged. The court held that the two disputed documents were not covered by the PSA privilege, in part because the incident was not referred to the hospital's patient safety committee or reported to the state. The court also pointed out that the PSA permits employees who learn facts about a mishap through the PSA process to refuse to answer questions about the event, but that hospital employees who have personal knowledge of the patient's care through other means “cannot refuse to answer factual questions [simply] because those same facts also had been made known to the hospital's patient safety committee.”