Appellate Division Accords Absolute Privilege To Patient Safety Act Materials
On May 4, 2016, the Superior Court of New Jersey, Appellate Division, issued a decision in Conn vs. Rebustillo which held that the materials provided to the Department of Health in the contact of a Patient Safety Act report and submission, including the root cause analysis prepared by the hospital in the context of an internal Patient Safety Act investigation, are subject to an absolute privilege and are not subject to disclosure in discovery. The case was a medical malpractice action involving an inpatient at Newton Medical Center who fell out of bed while hospitalized, suffered a brain hemorrhage, and later died. The hospital conducted an internal root cause analysis (which was submitted to the Department of Health) and also submitted a Patient Safety Act report. The wife of the hospital inpatient who died filed a medical malpractice lawsuit, and her attorneys sought to compel disclosure in discovery of the root cause analysis. The plaintiff contended that disclosure of the documents in discovery was permitted because the hospital had not shown that it complied with all of the process requirements of the Patient Safety Act. The trial court held that the underlying facts of the root cause analysis had to be disclosed, as well as any and all other documents withheld by the hospital on the basis that the documents were protected as a root cause analysis. The Appellate Division reversed the decision of the trial court, finding that the privilege set forth in the Patient Safety Act is an absolute privilege and protects all documents submitted to the Department of Health, including the root cause analysis. Internal documents prepared by the hospital as part of its Patient Safety Act investigation which are not submitted to the Department of Health are also subject to protection from disclosure if the hospital can show that the documents were developed as part of a Patient Safety Act plan which complies with the requirements of the Patient Safety Act. The court concluded that the protection accorded to documents submitted to the Department of health is absolute, and that the privilege is not subject to review to determine whether or not the hospital complied with the process requirements of the Patient Safety Act.