In a New Jersey Law Journal Article published today, Michael Booth detailed a recent oral argument before the NJ Supreme Court in C.A. v. Bentolila; a case in which the New Jersey Supreme Court is considering how far the 2004 Patient Safety Act passed after nurse Charles Cullen’s multiple murders at area hospitals can go in keeping documents in internal hospital investigations confidential.

In the case,  Plaintiffs Esther and Gedalia Applegrad sued over brain damage to their daughter as a result of oxygen deprivation at birth at  Valley  Hospital  in  Ridgewood  in May 2007.  After the birth, the hospital conducted an investigation, and the Plaintiffs requested the investigative documents.  The hospital claimed that the documents relating to the investigation were shielded from release under the “self-critical analysis” privilege.

The  hospital is appealing a lower court’s ruling that the privilege created by the law designed to encourage hospitals and their employees to discuss how mistakes happen in an effort to prevent recurrences applies only to documents “exclusively created in compliance” with the act, not for some other purpose such as the hospital’s continuous quality improvement program.  The Plaintiffs argue that the documents would shed light on what caused the delay in resuscitating the baby and what happened while she was being intubated.

The “Self Critical Analysis” Privilege is intended to shield from public view the content of hospital incident investigations.   The theory is that disseminating this information will frustrate and discourage open and honest discourse that might lead to valuable remedial actions.    Without the privilege, the participants, for fear of liability, would be reluctant to participate.  The other side of the argument is the patients’ right to know what happened and who was involved in any untoward incidents resulting in injury.  Shielding the patients access to relevant information which may only be known to the defendants denies the patient  the ability to fairly assess and present  his claim.    The courts have ruled that the “facts” uncovered in any investigation would be discoverable in a civil action, however, disclosure remains problematic and defendants   continue to object to the release of information under the guise of the Patient Safety Act.