The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1421-15T3
PATRICIA T. CONN, as Executrix
ad Prosequendum of the Estate
of David W. Conn, deceased, and APPROVED FOR PUBLICATION
PATRICIA T. CONN, individually
and per quod, May 4, 2016
Plaintiffs-Respondents, APPELLATE DIVISION
v.
BABYLIN REBUSTILLO, an
individual, RACHAEL LOAHR,
an individual, and NEWTON
MEMORIAL HOSPITAL, a business
entity, a/k/a NEWTON MEDICAL
CENTER,
Defendants-Appellants.
________________________________________________________________
Argued April 12, 2016 – Decided May 4, 2016
Before Judges Espinosa, Rothstadt and
Currier.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No.
L-452-14.
Peter A. Marra argued the cause for
appellants (Schenck, Price, Smith & King,
LLP, attorneys; Mr. Marra and Sandra Calvert
Nathans, on the brief).
Paul R. Garelick argued the cause for
respondents (Lombardi & Lombardi, P.A.,
attorneys; Mr. Garelick, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
The Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to
-12.25, establishes an absolute privilege for two categories of
documents. N.J.S.A. 26:2H-12.25(f) (subsection (f) privilege)
applies to the first category, which consists of documents
received by the Department of Health (the Department) pursuant
to the mandatory reporting requirement, N.J.S.A. 26:2H-12.25(c)
(subsection (c)) or the voluntary disclosure provision, N.J.S.A.
26:2H-12.25(e) (subsection (e)). N.J.S.A. 26:2H-12.25(g)
provides a similar privilege (subsection (g) privilege) to a
second category of documents, developed as part of a "self-
critical analysis" that might never be provided to the
Department. In this interlocutory appeal, we review the
statutory criteria and scope of the subsection (f) privilege and
clarify the distinction between the thresholds for the
application of the subsection (f) and subsection (g) privileges.
David W. Conn, the husband of plaintiff Patricia T. Conn,
was a patient at defendant Newton Medical Center (NMC) when he
fell from his hospital bed, suffered a "severe intracerebral
hemorrhage" and subsequently died.1 As a result, NMC was
1
Plaintiff brought this medical malpractice case against NMC,
Babylin Rebustillo, R.N. and Rachel Loahr, a nursing assistant,
(continued)
2 A-1421-15T3
required to prepare a root cause analysis (RCA) of the event and
file its report with the Department. During the course of
discovery in this medical malpractice action, plaintiff filed a
motion to compel discovery of the RCA, and defendants filed a
cross-motion for a protective order. The trial judge granted
plaintiff's motion to compel in part, requiring defendants to
provide the "underlying facts" included in the RCA, and denied
defendants' motions for a protective order and reconsideration.
We granted defendants leave to appeal from that order and now
reverse.
I.
In support of their motion for a protective order,
defendants submitted a three-page certification from Diane
Lawson, the hospital's insurance manager, which stated she was
authorized to make the certification on behalf of NMC and
provided that:
6. In the instant matter, a Root
Cause Analysis Report relating to the
plaintiff was prepared by a specified group
of employees of NMC designated as the team
involved in this event. The team included
medical professionals of various disciplines
with appropriate competencies to conduct the
root cause analysis for this event. In
addition, the team presented the root cause
(continued)
(collectively defendants) individually and as executrix and
administrator ad prosequendum of her husband's estate.
3 A-1421-15T3
analysis document to NMC's patient safety
committee.
. . . .
8. As required under the Patient
Safety Act and its regulations, NMC
submitted the Root Cause Analysis to the New
Jersey Department of Health and Senior
Services.
9. This document was generated for
the sole purpose of complying with the
mandatory reporting requirements of the
Patient Safety Act. This document was not
generated for purposes of utilization review
assessment or quality assurance assessment.
[(Emphasis added).]
The trial court found the RCA was "generated for the
specific purpose of complying" with the mandatory reporting
requirement and was filed with the Department. There is no
evidence in the record that the Department rejected the RCA or
found it deficient in any regard. Nonetheless, the trial court
ordered disclosure of the "underlying facts" of the RCA. The
order also compelled defendants "to provide any and all
documents previously withheld on the basis that such documents
were protected as a [RCA]."
In their appeal, defendants argue the trial court's
interpretation of the PSA was erroneous. They contend the RCA
was not discoverable because it was "prepared as part of NMC's
self-critical analysis," N.J.S.A. 26:2H-12.25(g), and "for the
4 A-1421-15T3
purposes of reporting the event to regulators." Plaintiff
acknowledges that if the report prepared by NMC qualifies as one
prepared and submitted in compliance with the PSA mandatory
reporting requirement, it is protected by the absolute
privilege. However, she contends Lawson's certification was
inadequate to establish that defendants complied with PSA
regulations. Plaintiff asserts that because the RCA and the
process through which it was created did not satisfy the PSA,
the trial court correctly applied the common law standard we
found applicable to a peer review committee report in Christy v.
Salem, 366 N.J. Super. 535 (App. Div. 2004). In short,
plaintiff argues that the hospital must show it fully complied
with all applicable regulations before the RCA received by the
Department is protected by privilege.
II.
In reviewing trial court decisions related to matters of
discovery, we apply an abuse of discretion standard. C.A. ex
rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014); Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). We
"generally defer[] to a trial court's disposition of discovery
matters unless the court has abused its discretion or its
determination is based on a mistaken understanding of applicable
law." Applegrad, supra, 219 N.J. at 459 (citation omitted).
5 A-1421-15T3
When the question presented is a legal issue, such as the
construction of a statute, our review is de novo. Kaye v.
Rosefielde, 223 N.J. 218, 229 (2015). This is such a case.
The trial court's statement of reasons reflects its
reliance upon our decision in Christy,2 a case in which we
considered whether a peer review committee report prepared
regarding a 2002 injury was discoverable. 366 N.J. Super. at
541; see N.J.S.A. 26:2H-12.23. The document was created well
before the effective date of the PSA and, clearly, was not
submitted to the Department pursuant to subsections (c) or (e)
of the PSA. We applied a common law standard, adopting a
balancing test of the competing interests at issue — the
"plaintiff's right to discover information concerning his care
and treatment" for purposes of his litigation and the "public
interest to improve the quality of care and help to ensure that
inappropriate procedures, if found, are not used on future
patients." Id. at 541. We ordered the disclosure of the
"purely factual" contents of the peer review report, but
determined that "evaluative and deliberative materials" within
the report that contained the hospital's "opinions, analysis,
and findings of fact" were not discoverable. Id. at 543-45.
2
The court also relied upon our decision in C.A. ex rel.
Applegrad v. Bentolila, 428 N.J. Super. 115 (App. Div. 2012),
which was reversed by the Supreme Court, 219 N.J. 449 (2014).
6 A-1421-15T3
The trial court's reliance upon Christy's common law
standard was misplaced. The discovery issue here is governed by
the provisions of the PSA. The questions presented concern the
threshold for the application of the absolute privilege granted
by N.J.S.A. 26:2H-12.25(f)3 and whether that privilege protects
all of the RCA from disclosure.
In interpreting a statute, "our essential task is to
understand and give effect to the intent of the Legislature."
Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 263-64 (2008).
We turn first "to the plain language of the statute," In re
Young, 202 N.J. 50, 63 (2010), which is the "clearest indication
of a statute's meaning." G.S. v. Dep't of Human Servs., 157
N.J. 161, 172 (1999). We seek further guidance only when "the
Legislature's intent cannot be derived from the words that it
has chosen." Pizzullo, supra, 196 N.J. at 264.
The explicit goal of the PSA was to improve the safety of
patients by obtaining and analyzing information that will lead
to the dissemination of effective practices and reduce systems
failures. N.J.S.A. 26:2H-12.24(f).4 The Legislature recognized
3
At oral argument, it was undisputed that the RCA was received
by the Department. NMC also agreed that an absolute privilege
would apply to the document as it was received by the Department
pursuant to subsection (c).
4
The information so obtained is also used "to exercise
oversight," with "primary emphasis on assuring effective
(continued)
7 A-1421-15T3
it was "critical" to encourage disclosure by "creat[ing] a non-
punitive culture that focuses on improving processes rather than
assigning blame." N.J.S.A. 26:2H-12.24(e). It sought to
accomplish this goal "[b]y establishing an environment that both
mandates the confidential disclosure of the most serious,
preventable adverse events, and also encourages the voluntary,
anonymous and confidential disclosure of less serious adverse
events, as well as preventable events and near misses."
N.J.S.A. 26:2H-12.24(f). To ensure the confidentiality of both
the mandatory disclosures made pursuant to N.J.S.A. 26:2H-
12.25(c) and the voluntary disclosures that are "encouraged" by
N.J.S.A. 26:2H-12.25(e),5 those disclosures are protected by an
absolute privilege. N.J.S.A. 26:2H-12.25(f).
(continued)
corrective action by the facility or health care professional."
N.J.S.A. 26:2H-12.25(f). Use of the information for other
purposes is limited by statute. Ibid.
5
N.J.S.A. 26:2H-12.25(e)(1) provides:
A health care professional or other employee
of a health care facility is encouraged to
make anonymous reports to the
department . . . in a form and manner
established by the commissioner, regarding
near-misses, preventable events, and adverse
events that are otherwise not subject to
mandatory reporting pursuant to subsection
c. of this section.
[Emphasis added.]
8 A-1421-15T3
The mandatory reporting requirement is established in
N.J.S.A. 26:2H-12.25(c), which states: "A health care facility
shall report to the department . . . in a form and manner
established by the commissioner, every serious preventable
adverse event that occurs in that facility." The circumstances
of David Conn's death clearly fall within the definition of a
"serious preventable adverse event." N.J.S.A. 26:2H-12.25(a);
see N.J.A.C. 8:43E-10.6(g)(4) (stating serious preventable
adverse events include "[p]atient . . . death . . . associated
with a fall while in a health care facility").
The absolute privilege afforded to documents submitted to
the Department pursuant to the mandatory requirement is
established by N.J.S.A. 26:2H-12.25(f), which provides:
Any documents, materials, or
information received by the department . . .
pursuant to the provisions of subsection[]
c. . . . of this section concerning serious
preventable adverse events . . . shall not
be:
1. subject to discovery or admissible as
evidence or otherwise disclosed in any
civil, criminal, or administrative action or
proceeding. . . .
[Emphasis added.]
See also N.J.A.C. 8:43E-10.9(a).
Although the report is to be "in a form and manner
established by the commissioner," N.J.S.A. 26:2H-12.25(a) and
9 A-1421-15T3
(e), receipt of the documents by the Department pursuant to the
two reporting provisions is sufficient to trigger the absolute
privilege as to all documents so received. The plain language
of the statute does not condition the privilege upon the
satisfaction of any other criteria. Further, 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. This straightforward, easily
identifiable trigger and application of the privilege is
consistent with the legislative goal of protecting the
confidentiality of disclosures made to the department – whether
mandated, voluntary or even anonymous — so that a body of
knowledge may be created to improve the safety of patients.
When the information sought to be protected is not
submitted to the Department, the path to a privilege is
different. See Applegrad, supra, 219 N.J. at 467. 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 Department. Applegrad, supra, 219 N.J. at
467. Subsection (g) provides in pertinent part:
Any documents, materials, or information
developed by a health care facility as part
of a process of self-critical analysis
conducted pursuant to subsection b. of this
10 A-1421-15T3
section concerning preventable events, near-
misses, and adverse events, including
serious preventable adverse events, and any
document or oral statement that constitutes
the disclosure provided to a patient or the
patient's family member or guardian pursuant
to subsection d. of this section, shall not
be:
(1) subject to discovery or admissible
as evidence or otherwise disclosed in any
civil, criminal, or administrative action or
proceeding . . . .
[Emphasis added.]
Thus, while subsection (f) shelters all documents that are
"received by the department" from discovery, the privilege
afforded to internal documents by subsection (g) only attaches
if the contents are "developed . . . as part of a patient safety
plan" that complies with the requirements set forth in N.J.S.A.
26:2H-12.25(b). Applegrad, supra, 219 N.J. at 469. The minimum
requirements for the patient safety plan include:
(1) a patient safety committee, as
prescribed by regulation;
(2) a process for teams of facility
staff, which teams are comprised of
personnel who are representative of the
facility's various disciplines and have
appropriate competencies, to conduct ongoing
analysis and application of evidence-based
patient safety practices in order to reduce
the probability of adverse events resulting
from exposure to the health care system
across a range of diseases and procedures;
(3) a process for teams of facility
staff, which teams are comprised of
11 A-1421-15T3
personnel who are representative of the
facility's various disciplines and have
appropriate competencies, to conduct
analyses of near-misses, with particular
attention to serious preventable adverse
events and adverse events; and
(4) a process for the provision of
ongoing patient safety training for facility
personnel.
[N.J.S.A. 26:2H-12.25(b)(1)-(4).]
The document at issue in Applegrad was a memorandum
prepared by a hospital administrator, before administrative
regulations regarding the PSA were adopted, entitled "Director
of Patient Safety Post-Incident Analysis." The document
memorialized a "round table" discussion conducted as part of the
hospital's investigation of the birth that gave rise to the
medical malpractice claim. 219 N.J. at 452, 455. It was
asserted that the document, along with five others, was
privileged under subsection (g).6 Id. at 455. Therefore, the
threshold issue was whether the documents were "developed . . .
as part of a process of self-critical analysis conducted
pursuant to subsection b." Id. at 467 (quoting N.J.S.A. 26:2H-
25(g)(1)).7 In contrast, the only pre-requisite for the
6
Initially, the hospital sought to have the document reviewed
pursuant to the balancing test set forth in Christy.
7
Because Applegrad arose after the passage of the PSA but
before implementing regulations were adopted, the Court analyzed
(continued)
12 A-1421-15T3
subsection (f) privilege is that the documents were "received
by" the Department pursuant to either the mandatory reporting
requirement followed here, subsection (c), or by the voluntary
reporting provision, subsection (e). Ibid. Thus, the analysis
conducted by the Court in Applegrad as to whether the hospital's
procedure substantially complied with the procedures required by
the PSA is unnecessary and inapplicable here. Id. at 473.
Our review of the plain language of the statute, which
comports with the legislative goals articulated, leads us to
conclude the privilege established by subsection (f) is not
subject to review to determine whether the health care facility
complied with the "process requirements" set forth in the PSA.
See Applegrad, supra, 219 N.J. at 467-68 (citation omitted).
The privilege afforded by N.J.S.A. 26:2H-12.25(f) is absolute,
covering all "documents, materials, or information received by
the department" pursuant to N.J.S.A. 26:28-12.25(c) or (e) and
attaches to those items upon receipt by the Department. Because
plaintiff retains the right to discover facts through
conventional means of discovery, N.J.S.A. 26:2H-12.25(k), this
(continued)
the discoverability of the document at issue pursuant to the
terms of the PSA itself and did not impose the requirements
included in the regulations. Applegrad, supra, 219 N.J. at 468-
69.
13 A-1421-15T3
conclusion does not substantially hamper the plaintiff's quest
for pertinent factual information and preserves the environment
established by the Legislature in which mandatory disclosures
are kept confidential. N.J.S.A. 26:2H-12.24(f).
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
14 A-1421-15T3