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Chaya Applegrad, A Minor, By Her Mother and Guardian v. Eric Bentolila

January 5, 2011

CHAYA APPLEGRAD, A MINOR, BY HER MOTHER AND GUARDIAN AD LITEM, ESTHER APPLEGRAD; ESTHER APPLEGRAD, INDIVIDUALLY; AND GEDALIA APPLEGRAD, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ERIC BENTOLILA, M.D.; GITA PATEL,
R.N.; KOURTNEY KACZMARSKI, R.N.; MARY BROWN, R.T.; AND YIE-HSIEN CHU, M.D., DEFENDANTS, AND THE VALLEY HOSPITAL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0908-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 8, 2010

Before Judges Lisa, Sabatino and Alvarez.

Plaintiffs in this medical malpractice case challenge interlocutory rulings of the trial court sustaining the assertion of privilege as to thirteen pages of internal hospital records that were withheld from them in discovery. The defendant hospital contends that the documents are fully protected from disclosure under the Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25 ("the PSA"), as well as under other statutes, regulations, and case law. Plaintiffs assert, in opposition, that the trial court construed the PSA too broadly and wrongfully denied them access to the records, or at least to the factual portions of those records.

Because the present record on appeal is inadequate concerning the specific genesis of each of the documents in question and is insufficient in other respects, we remand the matter to the trial court for fuller development of the record and to address certain arguments and legal authorities that were not initially presented to the trial court.

I.

This is an interlocutory matter involving confidential material, therefore the underlying facts cannot be stated conclusively or completely. We therefore summarize the facts as they are presented in plaintiffs' complaint and in their brief on appeal, mindful that defendants dispute many of the contentions and vigorously deny any negligence or wrongful conduct.

This lawsuit arises from complications sustained by Chaya Applegrad, a minor, during a vaginal delivery at defendant Valley Hospital in May 2007. Chaya's mother and father, plaintiffs Esther and Gedalia Applegrad, contend that Valley Hospital and the other named defendants deviated from applicable standards of professional care during Chaya's birth.

Plaintiffs allege that Chaya suffered oxygen deprivation and brain damage in the period surrounding the birth. Consequently, Chaya remains in long-term care. According to plaintiffs, shortly before Chaya's birth, defendant Kourtney Kaczmarski, a nurse employed by Valley Hospital, discovered that Chaya was in a breech position; the fetal monitoring strips were allegedly non-reassuring. At the time, the attending obstetrician, Dr. Eric Bentolila, was not present at the hospital. Nurse Kaczmarski apparently did not alert Dr. Bentolila or the on-call physician that the baby was in breech position. When Dr. Bentolila arrived at the hospital and discovered the baby in breech, he decided to continue with a vaginal delivery. The baby was born with a low heart rate and reportedly was gasping for air.

The hospital's in-house pediatrician, defendant Yie-Hsien Chu, M.D., attended Chaya's delivery and assumed the infant's care at birth. At her deposition,*fn1 Dr. Chu testified that during the immediate post-birth period, she noticed that Chaya's heart rate dropped to zero and that Chaya was not breathing appropriately. Evidently, when the anesthesiologist arrived, he discovered that Chaya's breathing tube was displaced. After the tube was replaced, Chaya's breathing and heart rate recovered.

In their complaint, as amended, plaintiffs alleged medical negligence on the part of Valley Hospital, Dr. Bentolila, Nurse Kaczmarski, Gita Patel, R.N.,*fn2 Dr. Chu, and Mary Brown, R.T., a respiratory therapist employed by the hospital. The hospital, the sole respondent on the present appeal, denies any negligence on its part or on the part of any of its employees. The remaining defendants*fn3 likewise deny any negligence.

During the course of discovery, plaintiffs served a request to produce documents on Valley Hospital. In response, the hospital turned over certain items to plaintiffs, but withheld several documents, which it identified as follows:

fl Occurrence Report; fl Director of Patient Safety Post Incident Analysis; fl Department of Risk Management Request for Quality Assurance Review; fl Mother/Baby Quality Assurance/Performance Improvement Review; fl Department of OB/GYN Quality Assurance Response; and fl Utilization Review Committee, Quality Assessment and Improvement Subcommittee of the Department of OB/GYN.

The hospital objected to disclosure of each of these listed internal records, on the grounds that their contents are privileged as part of "peer review" or other confidential assessments undertaken within the hospital following Chaya's birth.

Plaintiffs moved to compel the production of the withheld documents, contesting the hospital's invocation of privilege. After considering the parties' initial submissions, the motion judge decided to review each of the documents in camera. Accordingly, the judge issued an order directing the hospital to "provide all peer review investigation or other documents identified in its answer to Number 26 of plaintiff[s'] notice to produce within 20 days for in camera review by this court[.]"

The motion judge subsequently asked all counsel to appear in court on August 17, 2009, at which time he explained his reasons for requiring the hospital to submit the documents for in camera review. In particular, the judge noted that such an examination was prescribed by case law, particularly this court's opinion in Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004). As the judge initially saw it, under the precepts of Christy, the portions of the records that expressed opinions or were otherwise evaluative in nature should be kept confidential. However, the judge perceived that other portions of the records would be subject to disclosure under Christy, as he put it, "particularly the parts that deal with facts that occurred and things that occurred."

To guard against premature disclosure of confidential material to plaintiffs and to preserve the hospital's ability to seek further judicial review if it disagreed with any of the court's in camera rulings, the motion judge established the following procedures. The judge would redact from the documents any portions that he concluded were privileged or otherwise nondiscoverable. Defense counsel would then have an opportunity to review those proposed redactions before their release to plaintiffs. If defense counsel disagreed with the court's proposed disposition, they would be permitted to present their objections to the court, on the record, in an ex parte hearing. Plaintiffs' counsel did not object to these planned arrangements.

After completing his initial in camera review applying the Christy standards, the motion judge determined that four of the documents (respectively dated June 29, 2007; July 9, 2007; July 17, 2007; and September 10, 2007) were privileged in their entirety.*fn4 As to the document dated June 1, 2007, the judge concluded that some portions of it were subject to disclosure, but that other portions should be withheld from plaintiffs and should be redacted accordingly. There is no indication in the materials supplied to us whether the judge redacted any portions of the remaining document dated May 26, 2007.*fn5

The unredacted set of the records was collectively designated by the trial court as Exhibit C-1; and the redacted version was collectively designated as Exhibit C-2. On August 24, 2009, the motion judge provided the hospital's counsel with Exhibit C-2. Consistent with the pre-arranged procedures, the motion judge did not furnish plaintiffs' counsel with Exhibit C-1 or Exhibit C-2, pending defense counsel's review. Meanwhile, the motion judge was notified that plaintiffs had reached a settlement with Dr. Bentolila and a friendly hearing was scheduled.

The hospital objected to the motion judge's intended disposition of the privilege issues. It contended that the judge's proposed redactions were inadequate to protect its rights of confidentiality. The hospital's counsel accordingly requested an ex parte hearing before the motion judge, in order to explain why the court's proposed rulings were incorrect.

In advance of the confidential hearing, the hospital's counsel supplied the court with an ex parte brief. In that brief, the hospital's counsel specifically asserted, for the first time, that the materials at issue were privileged under the PSA. The brief asserted that, irrespective of the fact that the documents may contain some factual statements, they were fully shielded under the PSA from disclosure.

The motion judge conducted the ex parte hearing on September 15, 2009.*fn6 As a result of the hospital's invocation of the PSA, the motion judge reconsidered his proposed disposition of the privilege issues. The judge concluded that pursuant to the PSA, the materials at issue were exempted from disclosure. Consequently, the judge entered an order on September ...


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