The New Jersey Supreme Court is considering whether a hospital maintains the right of confidentiality for its internal review documents detailing adverse events even when it does not follow mandated procedure for reporting incidents to the state Department of Health.

A lawyer representing medical malpractice plaintiff Janella Brugaletta on Monday asked the justices to overturn an intermediate appellate ruling that overturned a trial judge's decision ordering Chilton Memorial Hospital to hand over in discovery its self-critical analysis of Brugaletta's care.

The Appellate Division in February 2017 said the judge below erred in finding that the hospital's failure to submit the report—involving what it referred to as a Serious Preventable Adverse Event, or SPAE—to state regulators, as required under the state Patient Safety Act, warranted piercing the privilege covering such reports.

The trial judge's decision that the report was not privileged was contrary to the plain language of the act, the appeals court said. Neither the act nor its implementing regulations authorize the partial or total loss of the privilege when a hospital fails to report a serious, preventable incident, Judges Clarkson Fisher Jr., Mitchel Ostrer and Francis Vernoia said last year.

On Monday, Brugaletta's attorney, Ernest Fronzuto, argued that the statute and its regulations “must be strictly complied with” if the promise of confidentiality is to be maintained.

Justice Anne Paterson asked if all SPAEs must go through the complete process.

“Yes,” replied Fonzuto, of the Fronzuto Law Group in Woodland Park. “A patient is entitled to facts about their personal treatment.”

Justice Barry Albin asked if there was a fear that hospitals would prepare an SPAE, not provide it to regulators, and still enjoy the privilege. Fronzuto said he did not think most hospitals would do that, but acknowledged that some could.

Chilton Memorial's attorney, Anthony Cocca, said the hospital must retain the SPAE, even if it fails to provide it to regulators. The act specifically provides that serious incidents be investigated in an atmosphere of confidentiality in order to encourage complete candor, he argued.

“It's supposed to be a nonpunitive environment,” said Cocca, of Bubb, Grogan & Cocca in Morristown. “The hospitals should be afforded a deferential standard.”

Under questioning, Cocca said all relevant information about a patient's care should be made available during discovery, except for the candid discussions between a hospital's doctors and staff about a serious adverse event.

Cocca was asked whether a fact found in an SPAE that has not been disclosed to the patient should remain confidential.

“Absolutely not,” he responded.

Brugaletta sued the hospital and three doctors over what she claims was a delay in diagnosing her ruptured appendix and pelvic abscess. According to court documents, she came to the emergency room on Jan. 20, 2013, complaining of abdominal pain and a fever that lasted a week. Her initial diagnosis was pneumonia, but doctors later discovered the abscess and ruptured appendix, the documents noted.

Her abdominal symptoms soon improved, but she developed fasciitis in the right thigh and right buttock, and underwent multiple debridements, along with an appendectomy, the documents said.

In discovery, Brugaletta sought the document at issue, and Passaic County Superior Court Judge Raymond Reddin ordered its production for in camera review. Reddin found Brugaletta suffered a serious, preventable adverse event, and that Chilton failed to report that event to the state Department of Health, or to disclose it to Brugaletta.

On appeal, Chilton successfully argued that the trial court lacked authority to compel disclosure of the report. Chilton also maintained that the trial court had no basis to challenge the report's finding that no reportable incident took place.

Ostrer, writing for the court in February 2017, said that under the plain language of the Patient Safety Act, the privilege afforded to the self-critical analysis is not conditioned on compliance with the reporting obligation. Predicating the privilege of the self-critical analysis on complying with the reporting obligation could lead to a result that the Legislature likely never intended, he wrote.

“We doubt the Legislature contemplated that a court would need to conduct such a mini-trial in which the burdens are reversed in order to recognize the self-critical analysis privilege,” Ostrer wrote.

The act, signed into law in 2004, was designed to provide an alternative to the placement of blame for mistakes by health care professionals, and “promote comprehensive reporting of adverse patient events, systematic analysis of their causes, and creation of solutions that will improve health care quality,” according to the DOH website.