Internal investigative documents that senior living and care providers use to help them learn from errors and accidents can’t be held back from trial attorneys if those documents also are used for other purposes, New Jersey’s top court ruled this week.
The decision reverses a lower court finding from 2023 that had protected such self-critical documentation from discovery under the state’s robust Patient Safety Act. That law is meant to support reflective processes that can help all kinds of healthcare providers improve quality and build in new or better safeguards.
But Monday’s ruling from the New Jersey Supreme Court in two consolidated cases found that a CareOne memory care assisted living community and a CareOne nursing home had invalidated the protection by sharing self-critical documentation outside of the safety committee.
Independence is a “precondition to applying the PSA’s privilege,” wrote Justice Fabiana Pierre-Louis. “The regulation directs that the ‘patient or resident safety committee shall not constitute a subcommittee of any other committee within a facility or health care system.’”
The ruling leaned on CareOne’s acknowledgement that its review committee was created for the dual purpose of complying with federal and state law.
“Defendants’ own admissions that they treated their committees related to quality assurance and improvement as patient safety committees to comply with both the requirements of the PSA and their federal obligations shows that they did not follow ‘the only precondition to application of the PSA’s privilege,’” Pierre-Louis wrote.
The court found that the providers’ investigations were not undertaken “exclusively during the process of self-critical analysis” according to state law, and the justices ruled that incident reports and other documents were subject to discovery in both cases.
Although privilege statutes are designed to allow providers and facilities to improve resident and patient safety, Hall Booth Smith attorney Sandra Cianflone previously told McKnight’s that compliance with the letter of the law is critical.
“Perhaps a ‘full stop’ is needed to have counsel and risk management teams assess their current processes to ensure complete compliance in the future,” she said after the 2023 CareOne ruling.
Others have warned that allowing more access to previously protected documentation could have a chilling effect on staff member willingness to self-report errors or providers ability to conduct robust internal investigations with an aim of improving quality.
For that reason, the New Jersey Hospital Association, the New Jersey Medical Society and the American Medical Association had filed briefs supporting CareOne’s arguments.
The documents in question now can be shared with the plaintiffs’ attorneys, potentially sharpening the cases against CareOne.
In one of the consolidated cases, Bender v. Harmony Village at CareOne Paramus, the family of Diane Bender wanted an incident report to substantiate its claims that Bender was attacked by another resident during her stay at the memory care assisted living community, allegedly resulting in multiple rib fractures, head trauma, spinal contusion and pneumothorax.
The New Jersey administrative code requires assisted living communities to have quality improvement programs, including written plans for resident care and ongoing monitoring of resident services.
“Harmony Village created an incident report related to the alleged attack …. which discusses Bender’s and the other resident’s histories while residents at the assisted living facility” and included witness statements, according to a syllabus prepared by the court clerk.
In the other consolidated case, Keyworth v. CareOne at Madison Avenue, Madeline Keyworth alleges that she was injured in two falls at the skilled nursing facility.
A spokeswoman for CareOne told McKnight’s on Wednesday that the company does comment on litigation “as a matter of policy.”
