August 03, 2018

Drinker Biddle Amicus Brief Instrumental in NJ Supreme Court Decision Upholding Confidentiality Under Patient Safety Act

Drinker Biddle partner Ross Lewin represented the New Jersey Hospital Association (NJHA) as amicus curiae in a major New Jersey Supreme Court case regarding a hospital’s statutory privilege over internal reviews of adverse incidents. The parties in Brugaletta v. Garcia clashed over the boundaries of privileged material under New Jersey’s Patient Safety Act (PSA) and the plaintiff’s ability to receive responsive discovery in order to prepare her action.

The PSA was enacted to foster the necessary trust within health care facilities to promote internal self-reporting and evaluation, with the ultimate goal of reducing medical errors. The act confers statutory privilege so that hospitals can investigate and conduct root cause analysis in an environment of free and full exchange, “shielding a health care facility’s deliberations and determinations from discovery or admission into evidence," as Justice Jaynee LaVecchia wrote in the majority opinion.

Plaintiffs sought the release of a redacted document prepared internally by hospital personnel during the process of self-critical analysis, however, the court adopted NJHA’s position that the PSA establishes an absolute privilege: “the secrecy of a privileged process [was] so needed for the PSA process to work[.]”

The court also upheld its dicta in Applegrad (in which Drinker Biddle also filed an amicus brief on behalf of the NJHA) that the privilege applies even when the analysis results in a determination that no significant preventable adverse event occurred. This is now the second case in which the New Jersey Supreme Court has emphatically stated that root cause analyses are under an umbrella of secrecy and cannot be obtained via discovery.

Ross Lewin has represented the New Jersey Hospital Association in matters at the intersection of patient safety and confidentiality in the peer review process for more than 20 years. Speaking to the New Jersey Law Journal, Ross applauded the court’s decision, saying that it “promotes a full and frank dialogue” and “an umbrella of secrecy so people can be open.”

Read “Hospital Internal Reviews Not Discoverable in Med Mal Cases, Supreme Court Rules” in New Jersey Law Journal.

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