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Brugaletta v. Garcia

Superior Court of New Jersey, Appellate Division

February 6, 2017

JANELLE BRUGALETTA, Plaintiff-Respondent,

          Argued December 6, 2016

         On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-112-15.

          Anthony Cocca argued the cause for appellant (Bubb, Grogan & Cocca, LLP, attorneys; Mr. Cocca, of counsel and on the briefs; Katelyn E. Cutinello, on the briefs).

          Ernest P. Fronzuto argued the cause for respondent (Fronzuto Law Group, attorneys; Mr. Fronzuto and Casey Anne Cordes, on the brief).

          Before Judges Fisher, Ostrer and Vernoia.


          OSTRER, J.A.D.

         This medical malpractice case involves the Patient Safety Act (the Act), N.J.S.A. 26:2H-12.23 to -12.25, which creates an absolute privilege over certain documents that a hospital develops as part of a self-critical analysis. See N.J.S.A. 26:2H-12.25(g). The trial court compelled defendant Chilton Medical Center (Chilton)[1] to disclose to plaintiff, Janelle Brugaletta, a redacted report containing Chilton's self-critical analysis of Brugaletta's care. The court ordered disclosure because it found: (1) Brugaletta had suffered a "serious preventable adverse event" (SPAE), see N.J.S.A. 2 6:2H-12.25(a); and (2) Chilton failed to report the SPAE to the New Jersey Department of Health (the Department) or to Brugaletta, as the Act required. See N.J.S.A. 26:2H-12.25(c), -12.25(d).

         By leave granted, Chilton appeals from the court's order. Chilton disputes the court's finding that Brugaletta suffered a SPAE and contends the court erred in compelling it to report the SPAE to the Department and Brugaletta. More importantly, Chilton argues the Act's absolute privilege over a self-critical analysis may not be pierced based on a failure to report a SPAE. Rather, Chilton contends the privilege is conditioned solely on compliance with statutory and regulatory mandates governing the formation of a patient safety plan and related procedural requirements. See N.J.S.A. 26:2H-12.25(b).

         We agree the privilege does not depend on compliance with the requirement to report a SPAE to the Department or the patient. We therefore reverse the trial court's order compelling partial release of a document revealing Chilton's privileged self-critical analysis. We also reverse the finding that there was a reportable SPAE because the finding lacked sufficient credible evidence in the record.


         In the underlying malpractice action, Brugaletta alleges she arrived at Chilton's emergency room on January 20, 2013, complaining of abdominal pain and a fever that had persisted for seven days. A twenty-three-year-old college student, she also complained of bodyaches, weakness, and a cough "productive of . . . thick phlegm." Her initial diagnosis was pneumonia. After she was admitted, she continued to complain of abdominal pain. A CT scan of her abdomen and pelvis was performed the day after she arrived at the hospital. It revealed a pelvic abscess that "most probably" resulted from a perforated appendix, according to one physician's report.

         A large amount of purulent fluid[2] was drained through the right ischial fossa.[3] Although her abdominal symptoms soon improved, she developed fasciitis[4] in the right thigh and right buttock muscle. One physician stated the fasciitis resulted from "the leakage of the drainage around the [ischial] nerve." Beginning January 23, 2013, Brugaletta underwent multiple debridements[5] of the thigh and buttock muscles. She also had an appendectomy. In the midst of those repeated procedures, Brugaletta missed doses of a post-operation antibiotic despite a physician's orders, which were recorded in his January 30, 2013 progress note.[6] When Brugaletta was finally discharged on February 13, 2013, she was still suffering from severe pain; she was instructed to use a walker or a person to assist her; and she was prescribed pain medication and intravenous antibiotics for administration at home.

         In her initial complaint, Brugaletta alleged that Chilton and various providers negligently diagnosed and treated her condition. In particular, she highlighted the delay in diagnosing her "ruptured appendix and pelvic abscess." In her first amended complaint, she added that physicians negligently failed to detect a second abscess on her CT imaging.

         In response to Brugaletta's discovery demands, Chilton identified but withheld as privileged the document at issue in this case. Described as an "Event Detail History with all Tasks, " Chilton asserted it was privileged pursuant to the Act and implementing regulations, as well as other grounds.[7]Brugaletta sought to compel production, initially seeking the court's in camera review. Chilton opposed and sought a protective order. In support, Chilton submitted the certification of Ebube Bakosi, M.D. the then-current chair of Chilton's Preventable Events Review Committee (PERC), formerly known as the Patient Safety Committee.

         The trial court ordered the document's production for in camera review. The court also permitted Chilton to file an ex parte brief to present document-specific arguments against disclosure. Upon review, the court found that Chilton prepared the document, which the court marked as DCP-2, in accordance with the procedural requirements of the Act and implementing regulations. However, the court concluded that the document revealed that Brugaletta had suffered a separate SPAE and Chilton failed to report that SPAE to the Department or disclose to Brugaletta.[8]

         The court determined that when a hospital fails to report a SPAE to the Department or a patient, the court is empowered to compel it to do so. The court also concluded if the hospital's reporting failure was arbitrary or capricious, then the hospital shall lose its privilege under the Act. The court held that when the hospital has erred in failing to report without acting arbitrarily or capriciously, then a lesser remedy is appropriate. Applying those standards, the court found that Chilton made a "clear error in judgment, " but did not act arbitrarily or capriciously. The court concluded under those circumstances it was appropriate to release only the portion of DCP-2 that described the SPAE, while redacting the balance. Nonetheless, the portion to be disclosed still revealed aspects of Chilton's self-critical analysis.

         This appeal followed. Chilton contends the court erred in compelling it to disclose DCP-2, albeit redacted. Chilton argues that the court lacked authority to review its determination that no SPAE occurred and to compel reporting; and, in any event, neither the Act nor the implementing regulations authorize the partial or total loss of the privilege when a hospital fails to report a SPAE when required. ...

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