Regardless of its volume, health care facilities are required to provide narrative directing plaintiff to specific location in the medical record where raw factual data of an adverse medical incident is documented.

The plaintiff presented to the hospital with complaints of pain in her right leg. She had a severely comminuted right femoral shaft fracture and underwent surgical repair, but later complained of decreased sensation and a lack of mobility to her right leg. She ultimately underwent a below-the-knee right leg amputation at another hospital. The plaintiff filed the instant malpractice case against the hospital where initial surgery was done, among others. During discovery, the plaintiff served the hospital with a request to identity of any persons who had e made statements regarding the lawsuit. The hospital objected, asserting that the information was protected by the self-critical analysis privilege and the Patient Safety Act, but it did disclose that a root-cause analysis (RCA) had been performed concerning the plaintiff’s treatment. The plaintiff made subsequent discovery requests for a list of the names of all individuals who were interviewed as part of the RCA, who had knowledge of facts and information concerning the plaintiff’s treatment, and a list of all records that were reviewed as part of the RCA. The plaintiff also 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 in response to the recent Brugaletta v. Garcia, 234 N.J. 225 (2018) decision. The trial 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, and held that the hospital was required to provide such a narrative regardless of the size or volume of the patient’s medical record. The court emphasized that because an adverse incident is contemporaneously recorded in the patient’s non-privileged chart, documentation of the adverse incident 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.

Practically, Brugaletta and Trella require health care facilities, upon request from the plaintiff, to identify where in the patient’s chart documentation of an adverse incident may be found regardless of the size of the patient’s medical record. Although the opinions seemingly expand the scope of what is discoverable in connection with an adverse medical incident, both still hold that any documents developed in the process of self critical analysis are privileged.

Case Law Alerts, 1st Quarter, January 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent 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. Copyright © 2020 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.