Patient safety law protects some documents in court case

An opinion by New Jersey judges provides a clearer outline on documenting poor medical outcomes.

By — Posted Aug. 29, 2012

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A New Jersey appellate court has upheld as constitutional a state law that protects the confidentiality of documents related to medical errors in order to improve patient safety.

The court clarified how broadly such protection extends, saying investigative and analytical material created in compliance with the New Jersey Patient Safety Act is “absolutely protected.” However, documents generated for other purposes are subject to existing discovery rules.

For doctors and hospitals, the ruling is an educational guideline for how best to structure Patient Safety Act processes within health facilities, said Melinda Martinson, assistant general counsel for the Medical Society of New Jersey, which was not involved in the case.

“The bottom line is physicians need to know whether they’re strictly within the confines of the [Patient Safety Act] procedures,” she said. “It is possible that those involved in a PSA evaluation could believe that their discussions are confidential, but later found to be discoverable in litigation because the hospital process was flawed or the material was used for another purpose.”

The case stems from a lawsuit filed by Esther Applegrad against Ridgewood, N.J.-based Valley Hospital and several physicians and nurses. Applegrad claimed that negligent actions by hospital staff caused her daughter’s brain damage. One doctor was dismissed from the suit after settling with the plaintiff.

During discovery, Applegrad requested the disclosure of investigative and peer review records related to the incident. The hospital initially denied the disclosure of six documents but decreased that number to two. The two documents are protected from disclosure by the Patient Safety Act, the hospital said. The law, enacted in 2004, was designed to improve patient safety by establishing a confidential reporting system for medical errors and near-misses.

Applegrad argued that prior court precedent about discovery, not the patient safety law, should govern disclosure of the hospital documents. In addition, the plaintiff said the law was an unconstitutional violation of the separation of powers because the court was not involved in the legislation’s adoption.

A trial court allowed the disclosure of one document but said the second was protected by the PSA. Both parties appealed to the Superior Court of New Jersey, Appellate Division.

In their Aug. 9 opinion, judges upheld the law, saying it extends confidential protection to all documents, materials and information developed exclusively through the law’s process (link).

“If, however, such items have been created or developed through some other source or context, then they are obtainable under the criteria governing such alternative situations,” the court said. “Thus, if a participant in the PSA process obtains facts or opinions from other sources or contexts, such as peer-review material from the facility’s continuous quality improvement program, those facts or opinions are not transformed into inaccessible ‘PSA materials.’ ”

In the hospital’s case, judges said both documents must be disclosed, because the manner in which they were created ran contrary to the law’s framework. For example, one document recorded a discussion among hospital administrators and staff about the baby’s birth. However, no physician was present during the meeting.

“The act is designed not only to encourage the internal reporting of patient calamities, but also to assure that such instances are carefully reviewed by qualified professionals who can decide if corrective measures are needed,” judges said.

Rulings on what is discoverable

In the last year, courts have issued differing decisions about whether patient safety and peer review documents are discoverable.

In May, the Illinois Appellate Court threw out a lawsuit brought by the state that challenged the confidentiality of quality control error reports. In April, the Supreme Court of the State of New York ruled that certain statements made by a vascular surgeon during a peer review hearing were subject to disclosure.

The Applegrad ruling is disappointing to the hospital defendants but beneficial to health professionals as a whole, said attorney Rowena Duran, who represented one of the nurse defendants.

“We were very gratified that the court upheld the privilege,” she said. “It was wonderful to see that what hospitals, physicians and nurses had been concerned about for decades has the ability to go forward [and] improve health care.”

At this article’s deadline, attorneys for the remaining doctor in the case had not returned messages seeking comment. Applegrad’s attorney also had not responded to a request for comment.

The New Jersey Assn. for Justice, which wrote a friend-of-the-court brief in support of Applegrad, said the court came to the correct decision. The trial lawyers association did not take a position on the law’s constitutionality, but argued for a proper interpretation of the act.

“The court struck the appropriate balance that was intended when the statute was drafted,” said Drew Britcher, amicus committee chair for the New Jersey Assn. for Justice. “The court basically said you get a privilege so long as you completely comply with the regulatory scheme” set forth by the act.

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Case at a glance

Is the New Jersey Patient Safety Act constitutional?

The Superior Court of New Jersey, Appellate Division said yes. The court clarified how broadly the law’s privilege extends, saying investigative and analytical material created in compliance with the act is “absolutely protected.” However, documents generated for other purposes are subject to existing discovery rules.

Impact: The ruling serves as a guideline for health professionals on how best to structure processes under the law within health care facilities.

Esther Applegrad et al. v. Eric Bentolila, MD, et al. Superior Court of New Jersey, Appellate Division, Aug. 9 (link)

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