medical malpractice Gina Sanders – Fotolia

There is an inherent conflict between a patient’s right to know what happened, and the medical profession’s desire to investigate adverse outcomes without having the results used in a malpractice case. This conflict was perhaps first acknowledged in Steiginga v. Thron, 30 N.J. Super. 423, 425 (App. Div. 1954), where the court observed:

The circumstances of the case must be looked at in the light of—the matter is of sufficient public concern to call for plain speaking—a shocking unethical reluctance on the part of the medical profession to accept its obligations to society and its profession in an action for malpractice.

Other cases spoke of the “community of silence” that has long existed in the medical community. See, e.g., Largey v. Rothman, 110 N.J. 204, 212 (1988) (citing Louisell and Williams, Medical Malpractice §22.12 (1987)). This conflict has long been a source of ligation. See, McClain v. Coll. Hosp., 99 N.J. 346 (1985); Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004); C.A. v. Bentolila, 219 N.J. 449 (2014); and, most recently, Brugaletta v. Garcia, N.J. (2018).

The Patient Safety Act (PSA), N.J.S.A.26:2H-12.23 et seq., was enacted in 2004 with the goal of reducing malpractice by requiring investigation of all “Serious Preventable Adverse Events” (SPAE) by hospitals. The legislature explicitly addressed the “conflict” between patient and hospital by requiring the hospital to notify the patient of the facts about the care rendered to the patient, citing Christy to make the legislative intent clear. In Brugaletta, the Supreme Court created a new procedure to facilitate the application of the PSA. The court reiterated that a patient has the right to know the facts related to the care received in a hospital, but that the opinions and conclusions of a post-treatment review of that care are privileged. As such, Brugaletta is a landmark decision that will fundamentally change the pre-trial process in many complex malpractice cases.

In Brugaletta, the plaintiff went to a hospital with a perforated appendix. The plaintiff developed a life-threatening infection, but the care-givers negligently failed to administer multiple doses of an antibiotic. The failure to administer the antibiotics was documented in the medical record by the ordering physician. During pre-trial discovery, the plaintiff requested that the hospital answer Uniform Interrogatory C5, which requires identification “any person who has made a statement regarding this lawsuit,” and requests a copy of the statement or a detailed summary of any oral statement. After claiming a multitude of privileges, the hospital disclosed the existence of two incident reports but not the reports themselves as it maintained the claim of privilege. The plaintiff moved to compel submission of the reports to the court for an in camera review. The hospital cross-moved for a protective order, supported by a certification that the two reports were prepared “for the sole purpose of complying with the requirements of the PSA.”

The trial court ordered the release of a redacted version of one of the two reports. This document revealed that the plaintiff had suffered a SPAE, but that the SPAE was not reported to the State or the patient. The Appellate Division reversed, concluding that the finding of a SPAE was erroneous because the trial court did not rely on an expert opinion to demonstrate that the injury was due to an error,

Justice LaVecchia began the analysis by reviewing the purpose of the PSA, which was to encourage “a nonpunitive, confidential environment in which health care facilities can review internal practices and policies and report problems without fear of recrimination.” The court  observed that the PSA attempts to strike a balance in the patient/hospital conflict by prohibiting discovery of “[a]ny documents, materials, or information received by the [DOH]” as the result of reporting a SPAE.” Justice LaVecchia concluded the initial review of the PSA by explaining that PSA does not bar the discovery or admission into evidence of information that would otherwise be discoverable or admissible:

Even though particular information, materials, or documents may have been developed in the process either of self-critical analysis or reporting a SPAE to the DOH, such material may nevertheless be discoverable and admissible if it is obtainable from any other source or in “any … context other than those specified” in the PSA.

 Justice LaVecchia then turned to the application of the PSA, explaining where there is a claim of privilege, the trial court must “undertake an in camera review of the purportedly privileged document or information and make specific rulings as to the applicability of the claimed privilege.” Justice LaVecchia concluded that the trial court erred in ordering disclosure of even a redacted version of the document, stating that the trial court “may not order the release of documents prepared during the process of self-critical analysis.” However, Justice LaVecchia explained the court’s “role in resolving this discovery dispute is far from over.”

Justice LaVecchia reiterated that every patient has the “right to obtain from the physician complete, current information concerning his diagnosis, treatment, and prognosis in terms he can reasonably be expected to understand,” citing N.J.S.A. 26:2H12.8, as well as N.J.A.C. 8:43G-15.2(e) (mandating inclusion in medical records of “[a]ny adverse incident”); N.J.A.C. 8:43G-4.1; N.J.A.C. 8:43G-4.1(a)(24) and (25). Justice LaVecchia observed that often the information contained in the privileged documents is “buried” among thousands of pages of patient records. However, it was counsel for the defendant in Brugaletta who provided the court with the solution to this problem.

Counsel for the hospital had in fact prepared a “concise step-by-step narrative, walking the court through the relevant excerpts of plaintiff’s patient records,” and had provided it to the trial court. This “narrative” specified precisely where the responsive information was located. As Justice LaVecchia explained:

[T]here are notations across several pages that, when read together, reveal the nature of the events underlying the divergent SPAE determinations of the committee and the trial court …. But, it is buried within mounds of plaintiff’s patient records. Specificity as to where to find that information is lacking. Yet, when called on to defend against the release of privileged information, defendants provided the court a concise step-by-step narrative, walking the court through the relevant excerpts of plaintiff’s patient records, to demonstrate that defendants had provided plaintiff with the underlying non-privileged facts about her care that sufficiently addressed the  information requested in interrogatory number five and that could be disclosed without piercing the PSA privilege. [Emphasis supplied.]

The court therefore created a new procedure for disclosure of medical information to reconcile the conflict between a patient’s right to know and a hospital’s desire for secrecy.

[The] trial court should have used its common law power, in administering the discovery rules, to order defendants to provide plaintiff a narrative similar in form to the one they presented the court. That court-ordered remedy would have allowed the court to balance the litigation interests of the parties, to avoid transgressing the privilege and the salutary purposes it is intended to achieve, and to keep the courts out of a regulatory scheme in which we have no role vis-à-vis declarations of SPAEs. Plaintiff was unquestionably entitled to the raw data contained in her patient records. And mandating a narrative to steer her to that information would have required defendants to identify, as they should have, an adverse incident to plaintiff, see N.J.A.C. 8:43G-15.2(e), in language she could understand, see N.J.S.A. 26:2H-12.8c. (Emphasis supplied.)

Justice LaVecchia explained that production of such a narrative is particularly suited for medical malpractice cases.

[O]ur trial courts have the authority under Rule 4:17-4(d) to compel a party producing documentary records to provide, with the records, a narrative that specifies for the requesting party where responsive information may be found. … Under the circumstances presented in this appeal, where a patient suffered an incident adverse to her interests and identifying features of that incident are memorialized in her patient chart, the privileged nature of one document created during the process of self-critical analysis does not prevent a more fulsome answer to interrogatory number five. [Emphasis added.]

The Brugaletta court therefore remanded the case with instructions that the trial court order the defendants to produce “a narrative to accompany the documents already turned over to plaintiff in order to satisfy defendants’ obligation” to provide a full response to interrogatory C5.

Justice Albin authored a concise but passionate dissent, arguing that the Patient Bill of Rights, N.J.S.A. 26:2H-12.8 (c) and the PSA:

[M]ake clear that the patient had a right to be told about the lapse in her treatment at the time it occurred and in a way that she reasonably could have understood. The patient’s right to know is not dependent on her filing a medical malpractice lawsuit or requesting the information in a well-crafted interrogatory question.

Justice Albin’s dissent begs this question to be answered: What about all of the patients who are unable to retain counsel because the information needed to obtain an affidavit of merit is not in the chart and the patient has not been notified of a SPAE?

Nevertheless, the lesson of Brugaletta is clear. Many if not most medical malpractice cases, as well as products liability and toxic tort cases, involve voluminous medical records. The plaintiff in such cases must demand production of all statements and documents relevant to the case. When the defendant responds with an objection or claim of privilege, the plaintiff must promptly file a motion to compel production of a “a narrative that specifies for the requesting party where responsive information may be found.” A form for such a “Brugaletta” motion has been posted on our website. The Brugaletta procedure will allow the plaintiff to discover not just the truth, but the whole truth and, in our view, significantly increase the chance that justice will be done.

 

Jon Lomurro and Abbott Brown are partners at the Freehold firm of Lomurro, Munson, Comer, Brown and Schottland. They are the co-authors of New Jersey Medical Malpractice Law (8th Ed. 2019).