- August 14, 2024
- Alerts
Is Your NJ Patient Safety Committee Protected by a Privilege?
In a recent ruling, the New Jersey Supreme Court concluded that the “self-critical analysis” privilege under the Patient Safety Act (“PSA”) and its implementing regulations can only be applicable if the information sought was generated for purposes of an independent patient safety committee that is created solely for the purposes of the PSA (i.e., the information generated from committees established to meet CMS or other New Jersey quality assurance or process improvement purposes is not protected by the privilege, even if such committees conduct a self-critical analysis).
Specifically, the New Jersey Supreme Court, in the consolidated appeal of Madeline Keyworth v. CareOne at Madison Avenue discussed the discoverability of internal reports and documents that were created following adverse events at nursing and assisted living facilities in New Jersey. The PSA requires that health care facilities establish a patient safety committee to analyze adverse events. The patient safety committee must act independently and cannot be a subcommittee of any other committee within the facility. In each of the underlying cases, the facilities indicated that they had committees tasked with addressing quality assurance and process improvement activities required by Federal and other New Jersey law, as well as the self-critical analysis required under the PSA.
The New Jersey Supreme Court interpreted these facts and requirements to mean that neither facility complied with the PSA’s procedural requirements because both facilities delegated patient safety functions to committees created for other legally mandated quality assurance and process improvement purposes, rather than creating independent patient safety committees as required by the PSA. Accordingly, the Appellate Division held that the materials here were not privileged.
Health care facilities should review patient safety plans and committee structures to ensure compliance with the PSA. Failure to do so may result in the loss of privilege protection for internal documents, increasing the risk of exposure in litigation. Facilities should also ensure that their patient safety committees are operated separately from other committees, including those related to quality assurance and improvement, though the committees may perform similar functions.
Should you have any questions regarding the above or would like assistance in ensuring your facility is compliant with the PSA, please contact the authors, the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.
Specifically, the New Jersey Supreme Court, in the consolidated appeal of Madeline Keyworth v. CareOne at Madison Avenue discussed the discoverability of internal reports and documents that were created following adverse events at nursing and assisted living facilities in New Jersey. The PSA requires that health care facilities establish a patient safety committee to analyze adverse events. The patient safety committee must act independently and cannot be a subcommittee of any other committee within the facility. In each of the underlying cases, the facilities indicated that they had committees tasked with addressing quality assurance and process improvement activities required by Federal and other New Jersey law, as well as the self-critical analysis required under the PSA.
The New Jersey Supreme Court interpreted these facts and requirements to mean that neither facility complied with the PSA’s procedural requirements because both facilities delegated patient safety functions to committees created for other legally mandated quality assurance and process improvement purposes, rather than creating independent patient safety committees as required by the PSA. Accordingly, the Appellate Division held that the materials here were not privileged.
Health care facilities should review patient safety plans and committee structures to ensure compliance with the PSA. Failure to do so may result in the loss of privilege protection for internal documents, increasing the risk of exposure in litigation. Facilities should also ensure that their patient safety committees are operated separately from other committees, including those related to quality assurance and improvement, though the committees may perform similar functions.
Should you have any questions regarding the above or would like assistance in ensuring your facility is compliant with the PSA, please contact the authors, the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.