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New Jersey is the only state without a statute defining what’s discoverable and what’s privileged in medical peer reviews, and the state Law Revision Commission is considering an attempt to draft one. The commission’s interest was piqued earlier this year when its staff learned there was some concern in the medical profession that the absence of statutory protections of confidentiality might stifle candid internal discussions about cases, a process generally believed to be in the best interests of patients. John Cannel, the commission’s executive director, said the members agree on the need for a statute creating some kind of privilege. At the same time, though, a statute would most likely reflect current case law that creates a privilege but is invadable under certain circumstances, he said. The history of the issue in New Jersey suggests it will be hard to fashion a statute that differs from the common law and remains satisfactory to doctors, hospitals, state regulators and plaintiffs lawyers. Those attorneys – champions of less privilege and more discovery – are relatively happy with the current state of the common law, which calls for case-by-case reviews. No wonder, then, that E. Drew Britcher, co-chair manof the amicus committee of the state chapter of the Association of Trial Lawyers of America, questions the need for legislation. Rather than worry that it is alone without a statute on the subject, “perhaps New Jersey should be proud that it’s one of the few states where you can’t kill the patient and bury the facts,” said Britcher, of Britcher Leone & Roth. CONSEQUENCES OF CANDOR Peer review is a broad term for the various types of internal analyses of cases and procedures that doctors and hospitals undertake, often as required by law, to improve patient care. As a general principle, doctors and hospitals say that if material generated by such reviews isn’t kept confidential or if liability is created, analysts will give less than the brutally honest opinions that are necessary to keep doctors, nurses and administrators on the best path. Existing law, N.J.S. 2A:84A-22.8, protects the work of hospital utilization committees, whose analyses are required by health care agencies and insurance carriers. In addition, a 1985 amendment, N.J.S. 2A:84A-22.9, provides immunity from liability to individual members of all hospital peer review committees. Other statutes and court cases have stood for the proposition that material generated by the reviews can’t always be secret. N.J.S. 45:1-18, for example, authorizes the attorney general and the Board of Medical Examiners to see material needed for their investigations. And two decisions in the past three years have opened the way to limited discoverability of peer review documents by plaintiffs in medical malpractice cases. In Reyes v. Meadowlands Hosp. Med. Ctr., the survivor of a woman who died during an operation sought material about the case that the hospital turned over to the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). That is a national organization to which institutions voluntarily send information about “sentinel events,” unexpected serious outcomes in the course of treatment. Superior Court Judge Jose Fuentes, now an appellate judge, noted that previous court decisions affirming the privilege assumed that “without this cloak of confidentiality the medical professionals taking part in this ‘self-critical analysis’ would not have fully and candidly expressed their points of view about a given case.” Fuentes found, however, that the JCAHO reporting created no expectation of confidentiality and that the state administrative code requiring peer reviews had no secrecy provision. He also questioned the accepted wisdom that peer reviewers would be reticent if they knew their findings would be made public. No appeals court reviewed the decision. An appeals panel did weigh in on the issue this February in Christy v. Salem, deciding that there should be a case-by-case balancing of the competing interests in privacy and disclosure. The plaintiff, who claimed in a suit that malpractice by doctors at Fuld Medical Center in Trenton caused his paralysis, sought an entire confidential report on his care by a peer review committee. He argued there was no public policy interest in keeping it confidential, and if there was, he had a compelling need for the findings. Fuld and the New Jersey Hospital Association, filing as amici, argued that the entire report should be confidential because of the overriding public interest in frank and productive self-evaluations. The court ruled that the plaintiff was entitled to deliberative information and completely factual material. But the opinions, analyses and findings of fact were off limits. The three-judge court also noted that such material was probably obtainable from the plaintiffs’ experts anyway. “Disclosure might discourage a peer review committee from making factual findings because such findings often include a determination of what is credible,” wrote Appellate Division Judge Jack Lintner. “We’re comfortable with Christy and Reyes,” said plaintiffs lawyer Britcher. Since the Law Revision Commission inquiry began in April, the New Jersey Hospital Association – which happened to see a note about the project on the commission’s Web site – has been the only organization to contact the staff and appears to be generally in favor of a statute. Association counsel Elizabeth Ryan said it’s too early in the process for her to comment, but she did say the association is happy with the facts-yes, opinions-no, discovery principle in Christy. Indeed, the association supported passage of a related law this year because it stated flat out that Christy was the definitive word on the subject. The law, the New Jersey Patient Safety Act, requires health care facilities to report serious, preventable adverse events to the state Department of Health and Senior Services. Adverse events are those that result in death, loss of a body part or loss of a bodily function lasting more than seven days. To ensure that the act didn’t increase or lessen any privilege or discoverability of reports, the Legislature added a clause saying construction of the statute should be consistent with Christy. “We were very happy with the decision,” Ryan said. “The opinion recognized that deliberative opinions should not be disclosed, and they restricted it to the release of factual information.” So far, the state, the Medical Society of New Jersey and the plaintiffs’ bar have not shared their views with the commission. Raymond Cantor, the medical society’s director of governmental affairs, said he’s not familiar with the commission’s inquiry and said there’s no telling whether any particular commission study, even those that result in draft bills sponsored in the Legislature, will result in laws. Could the latest inquiry fall by the wayside? “There was some concern early on we could get caught in a cross fire between the hospitals and plaintiffs lawyers and go nowhere,” Cannel said. “Our commissioners could back off and decide it’s too hot.” This article originally appeared in the New Jersey Law Journal , a publication of ALM.

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