Hospitals typically organize committees, comprised of physicians and other direct care providers, to present and evaluate cases resulting in poor outcomes in order to enhance future patient care. Legislation governing these “peer review” committees can be found in the New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, et seq. The PSA requires licensed health care facilities, including hospitals, to develop patient safety plans to improve patient care.
Hospitals typically organize committees, comprised of physicians and other direct care providers, to present and evaluate cases resulting in poor outcomes in order to enhance future patient care. Legislation governing these “peer review” committees can be found in the New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, et seq. The PSA requires licensed health care facilities, including hospitals, to develop patient safety plans to improve patient care. In fact, the PSA mandates hospitals to disclose what are referred to as “serious preventable adverse events” on a confidential basis. Often, these patient safety committees perform Root Cause Analyses to reconstruct and analyze cases, typically concluding in the creation of a written document that is submitted to the State.
Growingly, the Plaintiff’s bar has been attempting via paper discovery requests and court intervention to obtain not only the confidential reports submitted to New Jersey’s Department of Health and Human Services, but also the written minutes and other substantive information from these confidential meetings. For years, there was judicial confusion with regard to how much, if any, of the materials sought should be deemed discoverable and therefore disclosed to the Plaintiff. Cases such as McClain v. College Hospital, 99 N.J. 346 (1985), and Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004), offered some guidance, and generally held that purely factual information contained within the desired documents were discoverable, but deliberative and/or didactic materials were off-limits and afforded complete protection. This partial disclosure in some cases could pose a serious detriment to the defense, sometimes even opening the proverbial Pandora’s Box. For instance, an unsophisticated Plaintiff’s attorney may benefit greatly by obtaining a copy of a detailed chronology of the case from point A to point Z, all from the hospital’s perspective. Additionally, despite that only “facts” were disclosed, the savvy Plaintiff’s attorney can look at those facts and often times infer what the defense’s theory of the case may well be.
From the inception of the Patient Safety Act in 2004 until this past summer, Christy v. Salemwas the case with regard to discoverability of peer review documents such as Root Cause Analyses. Then, in a rather dramatic decision, the Appellate Division published its opinion inC.A. v. Bentolila, 2012 N.J. Super. LEXIS 137 (App. Div.), in August 2012. In a matter of first impression, the Court interpreted the confidentiality provisions of the PSA and their interplay with related confidentiality principles. Many legal pundits on both sides of the counsel table have deemed this opinion as cautiously optimistic for their respective bars. Others find this case to be hopeful for future, universal uniformity. However, that remains to be seen, especially since the Supreme Court has granted certification and will hear the matter on further appeal.
In evaluating the C.A. decision, Judge Sabatino takes a thorough approach in describing the basis and principles behind the PSA, the important yet complicated roles of patient safety committees in hospitals, and he culminates his opinion with a framework to determine whether the peer review materials in an individual case are subject to discoverability.
The Court upheld the absolute privilege from discovery set forth by the PSA, so long as the information compiled by the hospital committee is developed exclusively under the framework of the PSA. Thus, if not already, hospitals must be well-versed on the PSA, and its committee members must be mindful of the statute’s “do’s and don’ts” to ensure complete protection of their work product should that case move to litigation.
Whether a facility has complied with the PSA guidelines is determined by the facts of each case. For instance, documents created by a peer review committee should not be voluntarily disseminated to other members of the hospital for any purpose, such as for education. Rather, the report created by the committee should be confidentially sent to the Department of Health and Human Services only. This is contained in a footnote in the C.A. opinion, but it is certainly a rather large and important directive.
Moreover, the make-up of the actual committee should be comprised of physicians and other specialists in the area or areas of medicine the subject case practice. Simply organizing a group of risk managers untrained in medicine, as did the hospital in C.A., will not impart upon the hospital the privilege it seeks. If physician error is an issue, then your committee must be made up of at least some physicians. If it is a pharmacy error, pharmacists should be included in due course.
The PSA is rather specific with regard to its requirements and guidelines, and hospital patient safety and risk management executives are highly encouraged to study it well. Committees are encouraged to follow rank to ensure their work, even the factual chronologies, are afforded complete protection.
Case law interpreting and applying its principles have been few and far between. However, the C.A. case and its inevitable appeals and spawning of additional issues will undoubtedly keep this important issue in medical malpractice law on the forefront for the projected future.