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Christy v. Salem

February 17, 2004

GILBERT CHRISTY AND DOROTHY BATES, PLAINTIFFS-RESPONDENTS,
v.
RAJA R. SALEM, M.D., LAURA ANNE LEE, M.D., CAPITAL SURGICAL ASSOCIATES, DANIEL BRODOFF, M.D., BARTLEY LARSEN, M.D., CAPITAL IMAGING ASSOCIATES, P.A., SCOTT MILLER, M.D., ARIEL ABUD, M.D., DEFENDANTS, AND HELENE FULD MEDICAL CENTER AND CAPITAL HEALTH SYSTEMS, INC., DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4457-02.

Before Judges Lintner, Lisa and Reisner.

The opinion of the court was delivered by: Lintner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 10, 2003

We granted defendants, Capital Health System at Fuld*fn1 and Capital Health System, Incorporated (Fuld), an emergent stay and leave to appeal from a Law Division order directing it to provide plaintiff Gilbert Christy*fn2 with a copy of its peer review committee report. We also directed Fuld to submit the pertinent documents to us under seal. We now reverse in part, affirm in part, and remand for further proceedings.

The relevant facts are substantially undisputed. On January 2, 2002, plaintiff was injured in a motor vehicle accident when the right front tire of his truck blew out causing the truck to flip over and come to rest in a ditch. He was taken to Fuld where he came under the care of several physicians including two trauma surgeons, a neurosurgeon, a radiologist, a neuroradiologist, and an orthopedic surgeon. After performing radiological studies on plaintiff's neck, a decision was made to remove plaintiff's extubation tube to perform an MRI. According to plaintiff, prior to the time the extubation tube was removed, he was able to move his extremities. After the tube was removed, plaintiff became paralyzed from the neck down. An MRI revealed that plaintiff's fifth cervical vertebra had subluxed eight millimeters (approximately one-third of an inch). On January 3, 2002, plaintiff was transferred to Thomas Jefferson University Hospital, a spinal center, for further treatment.

On June 25, 2002, plaintiff filed a complaint alleging medical malpractice against Fuld and several of his treating physicians. Depositions of numerous physicians resulted in what plaintiff claims were discrepancies in the factual testimony concerning the manner in which events unfolded at the hospital. It was also learned during discovery that the cervical X-rays initially taken could not be found. These X-rays included a lateral view of plaintiff's neck, which might have demonstrated whether there was displacement of the C-5 vertebral body prior to removal of the extubation tube. Because of the missing X-rays and purported factual discrepancies, plaintiff sought Fuld's"confidential" peer review committee report.*fn3 The hospital refused and plaintiff moved to compel production. On June 2, 2003, the judge issued a letter opinion stating in pertinent part:"The court has reviewed this document and has reviewed the cases previously submitted by counsel and orders and directs that these materials be turned over to plaintiff's counsel as part of discovery." No further reason was given.

On appeal, plaintiff first contends that he is entitled, without a showing of compelling need, to the entire report including facts and opinions because Fuld has made"no showing that the public has some interest in keeping [it] confidential" and the"persons who were involved in the peer review process do not need confidentiality since their identities have been revealed in discovery." Essentially, plaintiff's initial argument is that there is no public policy reason justifying the maintenance of confidential hospital peer review evaluations. Alternatively, plaintiff argues that, even if there is justification for maintaining confidentiality of hospital peer review evaluations, he nevertheless has demonstrated a compelling need to warrant discovery of the entire report.

Fuld and amicus curiae New Jersey Hospital Association (the Association) respond, claiming that public policy requires that the entirety of hospital peer review evaluations be kept confidential, otherwise hospitals will not engage in such reviews. Both Fuld and the Association assert that pure factual material, as well as information reflecting a peer review committee's deliberative process, specifically, opinions, analysis, and factual findings are entitled to confidentiality where the competing demand by plaintiff is private in nature. They assert that the public interest in improving the quality of health care favoring confidential, frank, and productive self evaluations is overriding, especially here, where plaintiff can obtain viable expert opinions. They further contend that plaintiff has not shown a compelling need for the information contained in the report.

We have reviewed, in camera, the subject peer review committee report. Without disclosing its contents, we note and at oral argument Fuld conceded, that the first paragraph is purely factual material, apparently gleaned from the hospital report, while the remaining two paragraphs contain factual findings and opinions that are deliberative in nature. Additionally, Fuld conceded that the sentence making up the entire fourth line of the last paragraph contains information that could potentially lead to discovery of pertinent information. With this description in mind, we examine the underlying principles that guide our determination of the issues presented on this appeal.

Generally, a party"may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." R. 4:10-2(a). Plaintiff places heavy reliance on Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997), in support of his contention that hospitals should not be entitled to maintain confidential peer review evaluations. Fuld and the Association counter, relying in part on the holding in McClain v. College Hospital, 99 N.J. 346 (1985). Both cases are dispositive.

In Payton, the plaintiff brought suit under the Law Against Discrimination (LAD) against her employer and two supervisors, alleging sexual harassment. Plaintiff sought to discover her employer's confidential internal investigation for the purpose of establishing the employer's liability for its failure to respond to her complaints. The Payton Court analogized that it, like the Court in Dixon v. Rutgers, the State University of New Jersey, 110 N.J. 432 (1988), a LAD case concerned with the disclosure of the defendant's confidential tenure investigation, was dealing with the tension between two competing public interests, one favoring disclosure and the other favoring confidentiality. Payton, supra, 148 N.J. at 541. Identifying the existence of a public interest to"protect the confidentiality of those involved in the investigation if a loss of confidentiality would otherwise undermine the efficacy of investigations," the Payton Court fashioned a"conditional privilege" rather than a"blanket privilege," which, on application, permits the trial court to supervise discovery and protect confidentiality by procedures, short of suppression, which"may include redaction, issuance of confidentiality or gag orders, and sealing of portions of the record," when a competing public interest favors disclosure. Id. at 542.

Payton also examined the privilege of self-critical analysis in the context of competing public interests, concluding that, although it deserved"substantial consideration when a court balances a party's need to know against another party's need for confidentiality," it too"does not require the protection of a broad privilege as opposed to a balancing of interests." Id. at 546. The Court stated:

We decline to adopt the privilege of self-critical analysis as a full privilege, either qualified or absolute.... Instead, we perceive concerns arising from the disclosure of evaluative and deliberative materials to be amply accommodated by the"exquisite weighing process" that our courts regularly undertake when ...


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