New Jersey Supreme Court Reestablishes Confidentiality for Hospital Investigations Performed Pursuant to the Patient Safety Act


In a recent New Jersey Supreme Court decision issued on July 25, the Court affirmed the right of hospitals to keep confidential the internal reviews of adverse incidents that lead to medical malpractice suits.

The plaintiff in this case, Janell Brugaletta, sought to obtain an incident report provided to the hospital's Patient Safety Committee in connection with the Patient Safety Act's (PSA) requirements. The plaintiff developed necrotizing fasciitis following admission to the hospital. The plaintiff apparently did not receive antibiotics, which had been ordered several weeks into her hospital admission.

The plaintiff was never informed about the missed antibiotic doses. The information about the absent antibiotics was included in her hospital records, albeit on a few pages of the 4,500-page hospital chart. As discovery commenced, the plaintiff served a form interrogatory seeking any statements regarding her lawsuit. The hospital asserted a privilege as to its self-critical analysis and declined to produce the incident report, which formed the subject of this appeal. The plaintiff had received a copy of her hospital records.

The trial Judge determined that the hospital should have reported the missed antibiotic doses to the New Jersey Department of Health (DOH) pursuant to the requirements of the PSA that hospitals report all serious preventable adverse events. The court required the hospital to make a belated report to the DOH. The trial Court also ordered that the hospital produce a redacted version of its incident report to the plaintiff. The Appellate Division reversed. It held that the incident report was absolutely protected pursuant to the Act. The Appellate Division also determined that the trial Court erred by finding that a serious preventable adverse event had occurred.

The Supreme Court affirmed in part and reversed, in part, in its 43-page decision. The Court agreed with the Appellate Division that the incident report was absolutely protected from discovery. The Court determined that hospital analysis will be shielded from discovery as long as a hospital complies with the terms of the PSA and regulations as it conducts its investigation. Any alleged failure to report an event to the DOH does not abrogate the privilege. The Court also determined that the DOH is the sole entity charged with reviewing any alleged failures to report an event. The Court did, however, order that the hospital produce a narrative outlining where in the medical records it had been documented that the plaintiff did not receive the antibiotics as ordered. The Court focused on the voluminous nature of the medical records as a reason to require the hospital to produce this narrative, which had been created to bolster its arguments on appeal. In his dissent, Justice Barry T. Albin highlighted his concerns that patients receive timely notice of any adverse events.

Comment: The New Jersey Legislature passed the PSA to foster self-critical analysis by hospitals. The Legislature intended to create a system minimizing preventable adverse outcomes in patient care by also shielding hospitals' self-critical analysis from discovery. This decision will broaden the scope of self-critical analysis protected by the PSA. Any documents created in conformity with the PSA should be protected from disclosure. The decision could, however, lead to increased oversight by the DOH as the Court observed that the Legislature charged the DOH with investigating any reporting failures and imposing civil fines.

The syllabus and the decision itself can be found at the Court's website at


For more information, please contact Jane Kelsey at or 973.242.1364 or Peter Espey at or 973.242.1364.

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