Defense Digest, Vol. 26, No. 1, Spring 2020

New Jersey Appellate Court Clarifies Scope of What Is Discoverable in Medical Malpractice Case

Key Points:

  • Superior Court of New Jersey, Appellate Division clarifies Brugaletta v. Garcia.
  • Court holds that health care facilities are required to provide a narrative directing plaintiff to the specific location in the medical record where raw factual data of an adverse medical incident is documented, regardless of the volume of the record.


In Trella v. Bradish, 2019 N.J. Super. Unpub. LEXIS 2067 (App. Div. Oct. 8, 2019), the plaintiff, Heather Trella, presented to Newton Medical Center with complaints of pain in her right leg. It was determined she had a severely comminuted right femoral shaft fracture. She underwent surgery, but afterwards complained of numbness, decreased sensation and a lack of mobility to her right leg. Trella was transferred to another hospital and underwent a below-the-knee right leg amputation, which was allegedly due to a blocked blood vessel. Trella filed a malpractice case against the doctor who performed the initial surgery and the hospital where it was done, among others.

During discovery, the plaintiff served Newtown Medical Center with standard Form C interrogatories, requesting the identity of any persons who may have made statements regarding the lawsuit. In response to the plaintiff’s request, the hospital asserted the information was protected by the self-critical analysis privilege and the Patient Safety Act, but disclosed that a root-cause analysis (RCA) had been performed concerning the plaintiff’s treatment. The plaintiff made subsequent discovery requests for more specific answers and for a privilege log of all materials the hospital claimed were privileged; a copy of the hospital’s patient safety plan (PSP); a list of all the members of the hospital preventive Event Review Committee and their specialties; the names of all individuals who were interviewed as part of the RCA and who have knowledge of facts and information concerning the plaintiff’s treatment; and a list of all records that were reviewed as part of the RCA. Additionally, once the New Jersey Supreme Court issued its decision in Brugaletta v. Garcia, 234 N.J. 225 (2018), the plaintiff requested the hospital provide a narrative identifying the nature and description of the adverse incident experienced by the plaintiff and where in her chart the information was contained.

The court ordered the hospital to provide a narrative that specified where documentation of any adverse incident may be found in the plaintiff’s medical records, but it denied the plaintiff’s request for disclosure of the names of the persons who participated in the RCA. The appellate decision affirmed, finding that the trial court did not order the hospital to produce any documents, materials or information developed in the process of self-critical analysis.

In support of its decision, the Appellate Division reiterated several points made by the Brugaletta court, emphasizing that health care providers are required to contemporaneously document in the medical record any adverse incident in a patient’s treatment, including patient injuries. Because the adverse incident is contemporaneously recorded in the patient’s non-privileged chart, it is not protected by the self-critical analysis privilege, which attaches only to documents, materials or information developed exclusively during the process of self-critical analysis and in accordance with the statute. The court rejected the hospital’s argument that no “adverse incident” had been specifically recorded when the patient treated, such that it would be unduly burdensome to require the hospital to now identify such facts, because the hospital seemingly admitted it identified an adverse incident by virtue of performing a root-cause analysis. The court also rejected the hospital’s argument that it should not be required to provide a narrative since the plaintiff’s record was only 310 pages, unlike the 4,500-page record in Brugaletta. The court held, regardless of the size or volume of the patient’s medical record, the health care facility was required to provide a narrative identifying where in the medical record documentation of an adverse incident can be found.

Although both Brugaletta and Trella seemingly expand the scope of what is discoverable in connection with an adverse medical incident, both opinions still support the idea that the root cause analysis and any other documents developed in the process of self-critical analysis are privileged. However, if the information or documentation is not developed in the process of self-critical analysis, particularly if it is recorded contemporaneous with treatment, it is not protected by the privilege and discoverable, regardless of the size of the record and regardless of whether that information was evaluated in connection with the health care facility’s self-critical analysis.

*Kiera is an associate in our Mount Laurel, New Jersey office. She can be reached at 856.675.3619 or



Defense Digest, Vol. 26, No. 1, Spring 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact