These consolidated cases require us to consider the scope of the statutory self-critical analysis privilege and determine whether materials developed as part of self-critical analysis conducted pursuant to a facility's patient safety plan are subject to discovery, disclosure, and admissible at trial. This analysis hinges upon whether the facilities involved in these cases met the requirements imposed by the Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25, and related regulations, rendering the materials sought by plaintiffs privileged and protected from disclosure.
Defendants argue the trial court erred by ruling incident/investigation reports concerning separate incidents resulting in injuries at two facilities are not privileged under the PSA and therefore discoverable. The court reversed the trial court's orders.
Surveying the case law interpreting the PSA and regulations, the court notes that the PSA was designed to reduce medical errors by promoting internal self-reporting and self-critical analysis related to adverse events and near misses by health care facilities. N.J.S.A. 26:2H-12.25 renders the entire self-critical-analysis process privileged, shielding a health care facility's deliberations and determinations from discovery or admission into evidence. N.J.S.A. 26:2H-12.25(g), does not condition the privilege on the finding of a Serious Preventable Adverse Event (SPAE). That an event is not reportable does not abrogate the self-critical-analysis privilege. The privilege unconditionally protects the process of self-critical analysis, the results of the analysis, and the resulting reports developed by a facility in its compliance with the PSA. A court may not order the release of documents prepared during the process of self-critical analysis.
N.J.S.A. 26:2H-12.25(c) requires health care facilities to report every SPAE that occurs in that facility to the Department of Health (DOH). The documents, materials and information submitted to the DOH pursuant to this requirement are absolutely privileged and shall not be "subject to discovery or admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding." N.J.S.A. 26:2H-12.25(f). The statute provides no rationale or standard for parsing the contents of the documents, allowing for some portions to be privileged and others not privileged.
However, when information sought to be protected from disclosure is not submitted to the DOH, the path to a privilege is different. N.J.S.A. 26:2H-12.25(g) establishes the self-critical analysis privilege for internal documents that are the product of an 'investigative process that may or may not lead to reporting to the DOH. Any documents, materials, or information developed by a health care facility as part of a process of self-critical analysis conducted pursuant to N.J.S.A. 26:2H-12.25(b) is not subject to discovery, disclosure or admissible as evidence in any civil, criminal, or administrative proceeding.
Accordingly, if documents are submitted to the DOH pursuant to N.J.S.A. 26:2H-12.25(f) or meet the requirements of N.J.S.A. 26:2H-12.25(g), they are absolutely privileged and not subject to discovery. Under either of those circumstances, a trial court does not engage in a redaction process and release the redacted document. The entire document is statutorily protected from disclosure.
At the same time, the PSA expressly preserves plaintiffs' right to discover facts through conventional means of discovery if obtained from any source or context other than those specified in the PSA. Moreover, documents created outside the self-critical analysis process are subject to discovery.
In each case, plaintiffs are free to engage in discovery of facts from non-privileged sources. Additionally, if defendants produced voluminous medical records in response to a discovery request in either case, plaintiff may request, and the court may order, that defendants provide a "narrative to steer them to information contained in thousands of pages of medical records" in accordance with Brugaletta v. Garcia, 234 N.J. 225, 252 (2018).