The New Jersey Supreme Court recently issued a decision that clarified the limited scope of the privilege provided under the Patient Safety Act (“PSA”) (N.J.S.A. 26:2H-12.23 -12.25). The Court held that the privilege, which protects the confidentiality of information collected during internal investigations of patient safety events, applies only to documents, materials, and information developed exclusively pursuant to the requirements of the PSA and its implementing regulations ((NJAC 8:43E-10.4). Significantly, among these requirements is the establishment of a patient safety committee independent of any other committee. Information generated by other committees is not covered by the privilege.
Background
The PSA requires healthcare facilities to conduct a root cause analysis (“RCA”) following certain reportable adverse events. This process involves investigating incidents to identify underlying causes and contributing factors, with the goal of improving patient safety and quality of care. The PSA also requires healthcare facilities to establish patient safety committees which review adverse event reports, monitor the effectiveness of corrective actions, and promote efforts to improve quality of care and patient safety. The work of a patient safety committee necessitates collection of data and often generates reports that provide what is commonly referred to as “self-critical analysis.” Plaintiff’s lawyers want to get their hands on such reports when suing for malpractice, especially if the analysis concludes that the facility and/or practitioners involved did not meet the standard of care. Thus, ensuring that these committees are properly formed and operational to have the benefit of the PSA privilege should be a top priority for facilities. The New Jersey Supreme Court’s recent decision exemplified the importance of committee compliance for facilities in the state.
The Decision
In Madeline Keyworth v. CareOne at Madison Avenue, (Keyworth v. CareOne at Madison Ave., No. A-17-23 (N.J. Aug. 5, 2024)) the Court dealt with the discoverability of internal reports and documents at certain nursing and assisted living facilities. While the facility argued that it had committees established to address quality of care and patient safety, the Court found that the facility nonetheless did not comply with all of the PSA’s procedural requirements. Significantly, rather than having an independent patient safety committee tasked with the purposes of the PSA, they had other committees do the work of a patient safety committee. Accordingly, the PSA privilege was lost and the reports became discoverable.
The Court’s decision made it clear that only information generated for the exclusive purpose of an independent patient safety committee is protected. It is important to note that not any committee can serve as the patient safety committee. Rather, it must be an independent committee (and not a subcommittee of another committee) and meet all the procedural requirements of the PSA and its implementing regulations.
The Challenge
This creates a real challenge for healthcare facilities. Most facilities have numerous committees involved in some form of self-critical analysis that generate reports. While the common law privilege of self-critical analysis for other committee reports may still be raised, it has to be tried on a case-by-case basis.
To protect themselves in future litigation, healthcare facilities should review their patient safety plans and committee structures to ensure compliance with the PSA and center their patient safety activities within the structure of an independent patient safety committee to gain the benefit of the statutory privilege.
If you have any questions regarding the above or need assistance reviewing your patient safety plan and committee structures to ensure compliance with the PSA, contact Frier Levitt today.
