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Determining the Scope of Privilege under the Patient Safety Act

Fotolia_52956667_M-768x503.jpgIn Brugaletta v. Garcia, No. A-4342-15T1, 2017 WL 476219 (N.J. Super. Ct. App. Div. Feb. 6, 2017), the Appellate Division addressed the scope of privilege under the Patient Safety Act ("Act"). The Act imposes the obligations of self-critical analysis and reporting on hospitals when harmful events occur. Hospitals are required to undergo self-critical analysis when "preventable events, near-misses, and adverse events" occur, and these analysis reports are privileged if conducted pursuant to the hospitals implemented safety plan. If a patient suffers a "serious preventable adverse event" ("SPAE"), the Act requires the hospital to report both to the patient and to the NJ Department of Health ("Department"), with these reports subject to separate privileges.

This case involved a patient who went to the hospital and was initially diagnosed with pneumonia. A later CT scan revealed a pelvic abscess likely resulting from a perforated appendix. The abscess was drained and the patient had an appendectomy. She sued, alleging that the hospital negligently diagnosed and treated her condition. A privileged document was identified in discovery, and the trial court found that the document involved aspects of the hospital's self-critical analysis. The court, in reviewing the document, found that the patient had suffered a SPAE, which the hospital failed to report to the Department. The court concluded that when a hospital fails in its reporting requirement, the court can compel them to do so, and the hospital loses its privilege under the Act.

The Appellate Division reversed the decision of the trial court. The panel found that the privilege was conditioned on compliance with the procedural requirements set forth in the hospital's safety plan, and not on the substance of the analysis itself. The trial court erred in predicating the privilege over a self-critical analysis on the hospital's compliance with its reporting requirements. The trial court also erred in determining that a SPAE had occurred, since there was no evidence in the record to support the conclusion that the patient's condition was preventable, in that it could have been anticipated and prepared against, but occurred anyway because of a system failure or error. The trial court thus erred in compelling the hospital to report the alleged SPAE to the Department and the patient.

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