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Brugaletta v. Garcia

Supreme Court of New Jersey

July 25, 2018

JANELL BRUGALETTA, Plaintiff-Appellant,
v.
CALIXTO GARCIA, D.O., STEVEN D. RICHMAN, M.D. and PATRICK J. HINES, M.D., Defendants, and CHILTON MEMORIAL HOSPITAL, Defendant-Respondent.

          Argued March 12, 2018

          On appeal from the Superior Court, Appellate Division, whose opinion is reported at 448 N.J.Super. 404 (App. Div. 2017).

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

          Anthony Cocca argued the cause for respondent Chilton Medical Center (Bubb, Grogan & Cocca, attorneys; Anthony Cocca, of counsel and on the brief).

          E. Drew Britcher argued the cause for amicus curiae New Jersey Association for Justice (Britcher Leone, attorneys; E. Drew Britcher, of counsel and on the brief, and Jessica E. Choper, on the brief).

          Ross A. Lewin argued the cause for amicus curiae New Jersey Hospital Association (Drinker Biddle & Reath, attorneys; Ross A. Lewin, of counsel and on the brief). Philip S. Goldberg submitted a brief on behalf of amici curiae American Medical Association and Medical Society of New Jersey (Shook, Hardy & Bacon, attorneys).

          LaVECCHIA, J., writing for the Court.

         This appeal arises from a discovery dispute in a medical malpractice action involving a hospital's and its staff's care of a patient. The parties clash over the boundaries of privileged material under the Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25c, and plaintiff's ability to receive responsive discovery in order to prepare her action.

         Plaintiff Janell Brugaletta went to the emergency room of defendant Chilton Memorial Hospital (CMH). She was admitted and underwent multiple surgical interventions. During the period of those repeated procedures, plaintiff's doctor recorded that plaintiff missed doses of an antibiotic that the doctor had ordered. Plaintiff does not appear to have been informed of that fact prior to the filing of the Appellate Division's opinion in this matter, although it is in plaintiff's medical record turned over in discovery.

         Plaintiff filed a complaint alleging deviations from standards of medical care in defendants' diagnosis, care, and treatment of her. During pre-trial discovery, plaintiff served a set of interrogatories on defendant CMH. The fifth interrogatory requested the names and addresses of anyone who made or was aware of "a statement regarding this lawsuit," as well as access to, or a summary of, the statement, unless subject to a claim of privilege. CMH objected to the question as overly broad and asserted that information sought by the request was privileged. Plaintiff asked for a more specific answer, and CMH expanded as follows: "Without waiving said objections, and without limitation, there are 2 Reports regarding this matter. The reports are not included herein based upon the above objections. Additionally, the information contained in said reports is protected by the privilege of self-critical analysis," as well as both the PSA and other legislation and hospital policy. Plaintiff made a motion to compel discovery of the identities of the CMH committee or committees that reviewed plaintiff's case; submission of the related unredacted reports for in camera review; and disclosure of redacted versions to plaintiff. CMH moved for a protective order.

         The trial court heard argument on the motions and conducted an in camera review of the incident reports during which the court heard ex parte argument from defendants' counsel. During the ex parte argument, the court marked the reports for identification as DCP-1 and DCP-2, respectively. The trial court filed a written opinion ordering the release of a redacted version of DCP-2. The court found that the report was the product of a self-critical analysis conducted pursuant to the PSA and reviewed its content. The court found, contrary to CMH's determination, that the report revealed plaintiff had suffered a Serious Preventable Adverse Event (SPAE) under the PSA. The court then considered two interrelated issues: (1) "when a hospital erroneously fails to report a [SPAE], what[, ] if anything, should be the remedy?"; and (2) "what standard [of review] should be applied?" The court ordered the release of DCP-2 but prepared a redacted version of the document in an attempt to honor the self-critical-analysis privilege while revealing the facts of the SPAE to plaintiff. Further, the court ordered CMH to report the SPAE to the DOH.

         The Appellate Division reversed the trial court's order. 448 N.J.Super. 404, 408, 419 (App. Div. 2017). The appellate panel first determined that the only precondition to the applicability of the PSA's self-critical-analysis privilege is whether the hospital performed the self-critical analysis in compliance with N.J.S.A. 26:2H-12.25(b) and its implementing regulations. Id. at 414-15. The panel considered whether the trial court properly found that a SPAE had occurred, and it determined that the trial court's SPAE determination was in error because "an expert opinion was essential" in order to demonstrate that plaintiff's assumed serious adverse event occurred because of an error in her care. Id. at 418-19.

         The Court granted plaintiff's motion for leave to appeal. ___ N.J. ___ (2017).

         HELD: The Court affirms the panel's order shielding the redacted document from discovery because the PSA's self-critical-analysis privilege prevents its disclosure. The Court also affirms the panel's determination that, when reviewing a discovery dispute such as this, a trial court should not be determining whether a reportable event under the PSA has occurred. The Court reverses the judgment to the extent it ends defendants' discovery obligation with respect to this dispute, finding that defendants have an unmet discovery duty under Rule 4:17-4(d) that must be addressed. Accordingly, the Court provides direction on how the court should have addressed, through New Jersey's current discovery rules, the proper balancing of interests between the requesting party and the responding party here, and remands to the trial court.

         1. The PSA was legislatively designed to minimize adverse events caused by patient-safety system failures in a hospital or other health care facility. Through that multi-faceted statutory scheme, the Legislature 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 PSA requires health care facilities to formulate processes wherein patient safety committees comprised of members with "appropriate competencies" can perform self-critical analyses on SPAEs and near-miss incidents, formulate evidence-based plans for increasing patient safety, and provide for ongoing personnel training related to patient safety. N.J.S.A. 26:2H-12.25(b); N.J.A.C. 8:43E-10.4 and -10.5(a). When a health care facility or an employee thereof suspects that a SPAE may have occurred, the facility's patient safety committee must have in place a process for employees to alert the committee to that fact. N.J.A.C. 8:43E-10.5(a)(1). Then the patient safety committee must do two things: (1) perform a "root cause analysis" to identify the causes of a SPAE and appropriate corrective action, N.J.A.C. 8:43E-10.3 and -10.4(d)(7); and (2) report the SPAE to the DOH and to the affected patient. Notably, the PSA confers a privilege on a facility's self-critical analysis and the reporting of a SPAE to the DOH. N.J.S.A. 26:2H-12.25(f)(1), -12.25(g)(1); N.J.A.C. 8:43E-10.9(a)(1). Regulations promulgated to clarify the PSA's self-critical-analysis privilege specify that the documents, materials, or information must have been developed "exclusively during the process of self-critical analysis." N.J.A.C. 8:43E-10.9(b). (pp. 18-22)

         2. In C.A. ex rel. Applegrad v. Bentolila, the Court dismissed, in dicta, an argument that a finding that an event is not reportable should abrogate the self-critical-analysis privilege. 219 N.J. 449, 471 n.14 (2014). (p. 23)

         3. Importantly, the privileges provided in the PSA do not bar the discovery or admission into evidence of information that would otherwise be discoverable or admissible. Relatedly, the PSA provides that its provisions do not change the discoverability of information or documents obtained from other sources, or in other contexts. (pp. 23-24)

         4. The trial court was well within proper judicial bounds when examining the facts underlying the claim of privilege in this case. When a requesting party demands information or documents over which the opposing party claims a privilege, the responding party may withhold that information or document as long as it expressly asserts the claimed privilege and details the nature of the information withheld. When a requesting party challenges an assertion of privilege, the court must undertake an in camera review of the purportedly privileged document or information and make specific rulings as to the applicability of the claimed privilege. However, the court exceeded its authority, first in declaring that a SPAE had occurred and then in issuing its related orders that CMH disclose to plaintiff a redacted version of DCP-2 and report the event to the DOH. The Legislature inserted no role for a trial court to play in reviewing the SPAE determination made by a patient safety committee of a health care facility. The Court declines to entangle the courts in an essentially administrative function, and accordingly expresses no opinion on what standard should govern the determination of whether a SPAE occurred or the related issues of causation and expert testimony. To the extent that the Appellate Division refined the review standard for identifying a SPAE, the Appellate Division's analysis is vacated. (pp. 24-27)

         5. The language and structure of the PSA leave no reasonable doubt about the legislative intent regarding the self-critical-analysis privilege. As the Appellate Division properly held, the only precondition to application of the PSA's privilege is whether the hospital performed its self-critical analysis in procedural compliance with N.J.S.A. 26:2H-12.25(b) and its implementing regulations. 448 N.J.Super. at 414-15. To construe the statute otherwise -- by making its protective privilege dependent on a SPAE finding -- would be at cross-purposes with the patent legislative desire to encourage trust and reporting by health care facilities whenever a concern about a near miss or adverse event comes to light. Accordingly, as intimated through dictum in C.A., the finding that an event is not reportable does not abrogate the self-critical-analysis privilege. The PSA was misapplied and the trial court's discretion abused when it declared that a SPAE occurred and ordered CMH to release a redacted form of DCP-2 to plaintiff and report the event to the DOH. A court may not order the release of documents prepared during the process of self-critical analysis. (pp. 27-30)

         6. Although a court may not order release in discovery of a report developed during self-critical analysis, even if redacted, and although a court may not determine whether it agrees with the health care facility's conclusion as to whether an adverse event constitutes a SPAE and, based on that determination, order disclosure to the DOH, the court's role in resolving this discovery dispute is far from over. (pp. 30-32)

         7. The PSA did not abrogate existing health care law and does not immunize from discovery information otherwise discoverable. The record in this case discloses that among the patient records, there are notations across several pages that, when read together, reveal the nature of the events underlying the divergent SPAE determinations of the committee and the trial court. Those notations are in plaintiff's medical records pursuant to health care law requirements concerning patient recordkeeping. Defendants provided the court a concise step-by-step narrative, walking the court through the relevant excerpts of plaintiff's patient records, to demonstrate that defendants had provided the underlying non-privileged facts about plaintiff's care that sufficiently addressed the information requested in interrogatory five and that could be disclosed without piercing the PSA privilege. Instead, the trial court should have ordered defendants to provide plaintiff a narrative similar in form to the one they presented the court. That remedy would have allowed the court to balance the litigation interests of the parties, to avoid transgressing the privilege and the salutary purposes it is intended to achieve, and to keep the courts out of a regulatory scheme. (pp. 32-36)

         8. New Jersey trial courts have the authority under Rule 4:17-4(d) to compel a party producing documentary records to provide, with the records, a narrative that specifies where responsive information may be found. Plaintiff was entitled to be informed of an adverse incident related to her care in defendants' response to discovery demands because such an incident was memorialized through various entries in her patient records. Yet, she was not informed of it and, notwithstanding her fifth interrogatory, received no specification or narrative to accompany the approximately 4500 pages of medical records that would lead her to the discrete yet interconnected notations of the incident that appear on nine pages of that record. The trial court should, on remand, order a narrative to accompany the documents already turned over to plaintiff in order to satisfy defendants' obligation to provide a complete response to interrogatory number five. (pp. 36-43)

         AFFIRMED IN PART, REVERSED IN PART.

          JUSTICE ALBIN, dissenting, would make clear that the patient had a right to be told about the lapse in her treatment at the time it occurred and in a way that she reasonably could have understood under the Patient Bill of Rights, even if it had not been entered in her patient records as required by N.J.A.C. 8:43G-15.2(e), and even if she had not demanded the information in a medical malpractice lawsuit. In Justice Albin's view, the majority's interpretation of the PSA erodes significant rights the Legislature conferred on patients.

          CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA's opinion.

          OPINION

          LAVECCHIA JUSTICE.

         This appeal arises from a discovery dispute in a medical malpractice action involving a hospital's and its staff's care of a patient. The parties clash over the boundaries of privileged material under the Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25c, and plaintiff's ability to receive responsive discovery in order to prepare her action.

         In enacting the PSA, the Legislature sought to reduce medical errors by promoting internal self-reporting and evaluation by health care facilities. The Legislature protected and encouraged this new system of self-critical analysis through a statutory privilege, designed to shore up the trust expected and needed from health care facilities for the success of its facility-initiated program. At the same time, the Legislature expressly left untouched a plaintiff's ability to secure discovery of underlying information available through other means.

         In this matter, the trial court endeavored to balance the interests of the parties using the framework of the PSA and ordered the release of a redacted document prepared internally by hospital personnel during the process of self-critical analysis. On appeal, defendants claimed that the trial court impermissibly involved itself in a PSA regulatory function and, further, that release of the redacted document would result in a breach of the statutory privilege. The Appellate Division reversed the trial court's order of release. We now affirm in part and reverse in part the Appellate Division judgment, and we remand for proceedings in accordance with this opinion.

         We affirm the panel's order shielding the redacted document from discovery because the PSA's self-critical-analysis privilege prevents its disclosure. We also affirm the panel's determination that, when reviewing a discovery dispute such as this, a trial court should not be determining whether a reportable event under the PSA has occurred.

         However, importantly, we reverse the judgment to the extent it ends defendants' discovery obligation with respect to this dispute. We find that defendants have an unmet discovery duty under Rule 4:17-4(d) that must be addressed. Accordingly, we provide direction on how the court should have addressed, through our current discovery rules, the proper balancing of interests between the requesting party and the responding party here, and we remand to the trial court for entry of an order consistent with the guidance set forth in this opinion and for such further proceedings as are necessary.

         I.

         Because this matter involves a confidential record and comes before us on interlocutory appeal from the trial court's disposition of the discovery dispute, we present only a brief recitation of the facts and procedural history.

         A.

         On January 12, 2013, plaintiff Janell Brugaletta[1] went to the emergency room of defendant Chilton Memorial Hospital (CMH) complaining of a week-long fever accompanied by abdominal and body pains. She was examined by defendant Calixto Garcia, D.O., diagnosed with pneumonia, and admitted to the hospital. A Computed Tomography (CT) scan revealed a pelvic abscess due to a perforated appendix. Plaintiff's doctors drained the abscess and plaintiff's fever abated. Although the abdominal pain lessened, plaintiff experienced worsening pain in her legs.

         Additional CT scans led CMH doctors to determine that plaintiff appeared to be developing a necrotizing fasciitis[2] in her thigh muscles and right buttock due to the abscess drainage leaking around a nerve. Plaintiff obtained a second opinion, and, thereafter, an orthopedic surgeon performed a fasciotomy and debridement. After those procedures, plaintiff was placed in the intensive care unit. Plaintiff then underwent further surgical interventions, including additional procedures to debride the fasciitis and close the wound left by the abscess, as well as an appendectomy.

         On January 30, 2013, during the period in which plaintiff was undergoing repeated procedures, plaintiff's doctor recorded that plaintiff missed doses of an antibiotic that the doctor had ordered. Plaintiff does not appear to have been informed of that fact prior to the filing of the Appellate Division's published opinion in this matter, although it is in plaintiff's medical record turned over in discovery.

         By the time of her February 13, 2013 discharge -- three weeks after appearing in the CMH emergency room -- plaintiff's abscess drains were removed and the abdominal pain was resolved. Nevertheless, plaintiff reports having left the hospital experiencing residual pain and permanent injuries to her legs and buttock.

         On January 13, 2015, plaintiff filed a complaint naming Dr. Garcia and CMH as defendants, alleging deviations from standards of medical care in their diagnosis, care, and treatment of her. About a year later, plaintiff filed an amended complaint to add claims against Steven D. Richman, M.D., Patrick J. Hines, M.D., and Montclair Radiology, alleging that Doctors Richman and Hines, who performed her CT scans and CT-guided drainage, negligently failed to detect a second abscess.

         During pre-trial discovery, plaintiff served a set of interrogatories on defendant CMH on March 5, 2015. The fifth interrogatory requested the following: State:

(a) the name and address of any person who has made a statement regarding this lawsuit;
(b) whether the statement was oral or in writing;
(c) the date the statement was made;
(d) the name and address of the person to whom the statement was made;
(e) the name and address of each person present when the statement was made; and
(f) the name and address of each person who has knowledge of the statement.

         Unless subject to a claim of privilege, which must be specified:

(a) attach a copy of the statement, if it is in writing;
(b) if the statement was oral, state whether a recording was made and, if so, set forth the nature of the recording and the name and address of the person who has custody of it; and
(c) if the statement was oral and no recording was made, provide a detailed summary of its contents.

         On June 1, 2015, defendant CMH responded:

Upon the advice of counsel, objection to the form of the question. This request is overly broad, burdensome and intended to harass this defendant and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence pursuant to R. 4:10-2 and is otherwise irrelevant under N.J.R.E. 401. Further, this request seeks information that is protected by the work-product doctrine, the peer review privilege, the privilege of self-critical analysis, the attorney client privilege ...

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