CHAYA APPLEGRAD v. ERIC BENTOLILA
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3747-09T2
CHAYA APPLEGRAD, a Minor, by
Her Mother and Guardian ad
Litem, ESTHER APPLEGRAD;
ESTHER APPLEGRAD, Individually;
and GEDALIA APPLEGRAD,
ERIC BENTOLILA, M.D.; GITA
PATEL, R.N.; KOURTNEY
KACZMARSKI, R.N.; MARY BROWN, R.T.;
and YIE-HSIEN CHU, M.D.,
THE VALLEY HOSPITAL,
January 5, 2011
Argued November 8, 2010 - Decided
Before Judges Lisa, Sabatino and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0908-08.
Cynthia A. Walters argued the cause for appellants (Budd Larner, P.C., attorneys; Ms. Walters, of counsel and on the brief; Christopher R. Paldino, on the brief).
Karla M. Donovan argued the cause for respondent (Buckley & Theroux, LLC, attorneys; William G. Theroux, of counsel; Ms. Donovan, on the brief).
Ross A. Lewin argued the cause for amicus curiae New Jersey Hospital Association (Drinker, Biddle & Reath, LLP, attorneys; Mr. Lewin, of counsel and on the brief).
E. Drew Britcher argued the cause for amicus curiae New Jersey Association for Justice (Britcher, Leone & Roth, LLC, attorneys; Mr. Britcher and Kristen B. Miller, on the brief).
Plaintiffs in this medical malpractice case challenge interlocutory rulings of the trial court sustaining the assertion of privilege as to thirteen pages of internal hospital records that were withheld from them in discovery. The defendant hospital contends that the documents are fully protected from disclosure under the Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25 ("the PSA"), as well as under other statutes, regulations, and case law. Plaintiffs assert, in opposition, that the trial court construed the PSA too broadly and wrongfully denied them access to the records, or at least to the factual portions of those records.
Because the present record on appeal is inadequate concerning the specific genesis of each of the documents in question and is insufficient in other respects, we remand the matter to the trial court for fuller development of the record and to address certain arguments and legal authorities that were not initially presented to the trial court.
This is an interlocutory matter involving confidential material, therefore the underlying facts cannot be stated conclusively or completely. We therefore summarize the facts as they are presented in plaintiffs' complaint and in their brief on appeal, mindful that defendants dispute many of the contentions and vigorously deny any negligence or wrongful conduct.
This lawsuit arises from complications sustained by Chaya Applegrad, a minor, during a vaginal delivery at defendant Valley Hospital in May 2007. Chaya's mother and father, plaintiffs Esther and Gedalia Applegrad, contend that Valley Hospital and the other named defendants deviated from applicable standards of professional care during Chaya's birth.
Plaintiffs allege that Chaya suffered oxygen deprivation and brain damage in the period surrounding the birth. Consequently, Chaya remains in long-term care. According to plaintiffs, shortly before Chaya's birth, defendant Kourtney Kaczmarski, a nurse employed by Valley Hospital, discovered that Chaya was in a breech position; the fetal monitoring strips were allegedly non-reassuring. At the time, the attending obstetrician, Dr. Eric Bentolila, was not present at the hospital. Nurse Kaczmarski apparently did not alert Dr. Bentolila or the on-call physician that the baby was in breech position. When Dr. Bentolila arrived at the hospital and discovered the baby in breech, he decided to continue with a vaginal delivery. The baby was born with a low heart rate and reportedly was gasping for air.
The hospital's in-house pediatrician, defendant Yie-Hsien Chu, M.D., attended Chaya's delivery and assumed the infant's care at birth. At her deposition,1 Dr. Chu testified that during the immediate post-birth period, she noticed that Chaya's heart rate dropped to zero and that Chaya was not breathing appropriately. Evidently, when the anesthesiologist arrived, he discovered that Chaya's breathing tube was displaced. After the tube was replaced, Chaya's breathing and heart rate recovered.
In their complaint, as amended, plaintiffs alleged medical negligence on the part of Valley Hospital, Dr. Bentolila, Nurse Kaczmarski, Gita Patel, R.N.,2 Dr. Chu, and Mary Brown, R.T., a respiratory therapist employed by the hospital. The hospital, the sole respondent on the present appeal, denies any negligence on its part or on the part of any of its employees. The remaining defendants3 likewise deny any negligence.
During the course of discovery, plaintiffs served a request to produce documents on Valley Hospital. In response, the hospital turned over certain items to plaintiffs, but withheld several documents, which it identified as follows:
Director of Patient Safety Post Incident Analysis;
Department of Risk Management Request for Quality Assurance Review;
Mother/Baby Quality Assurance/Performance Improvement Review;
Department of OB/GYN Quality Assurance Response; and
Utilization Review Committee, Quality Assessment and Improvement Subcommittee of the Department of OB/GYN.
The hospital objected to disclosure of each of these listed internal records, on the grounds that their contents are privileged as part of "peer review" or other confidential assessments undertaken within the hospital following Chaya's birth.
Plaintiffs moved to compel the production of the withheld documents, contesting the hospital's invocation of privilege. After considering the parties' initial submissions, the motion judge decided to review each of the documents in camera. Accordingly, the judge issued an order directing the hospital to "provide all peer review investigation or other documents identified in its answer to Number 26 of plaintiff[s'] notice to produce within 20 days for in camera review by this court[.]" The motion judge subsequently asked all counsel to appear in court on August 17, 2009, at which time he explained his reasons for requiring the hospital to submit the documents for in camera review. In particular, the judge noted that such an examination was prescribed by case law, particularly this court's opinion in Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004). As the judge initially saw it, under the precepts of Christy, the portions of the records that expressed opinions or were otherwise evaluative in nature should be kept confidential. However, the judge perceived that other portions of the records would be subject to disclosure under Christy, as he put it, "particularly the parts that deal with facts that occurred and things that occurred."
To guard against premature disclosure of confidential material to plaintiffs and to preserve the hospital's ability to seek further judicial review if it disagreed with any of the court's in camera rulings, the motion judge established the following procedures. The judge would redact from the documents any portions that he concluded were privileged or otherwise non-discoverable. Defense counsel would then have an opportunity to review those proposed redactions before their release to plaintiffs. If defense counsel disagreed with the court's proposed disposition, they would be permitted to present their objections to the court, on the record, in an ex parte hearing. Plaintiffs' counsel did not object to these planned arrangements.
After completing his initial in camera review applying the Christy standards, the motion judge determined that four of the documents (respectively dated June 29, 2007; July 9, 2007; July 17, 2007; and September 10, 2007) were privileged in their entirety.4 As to the document dated June 1, 2007, the judge concluded that some portions of it were subject to disclosure, but that other portions should be withheld from plaintiffs and should be redacted accordingly. There is no indication in the materials supplied to us whether the judge redacted any portions of the remaining document dated May 26, 2007.5
The unredacted set of the records was collectively designated by the trial court as Exhibit C-1; and the redacted version was collectively designated as Exhibit C-2. On August 24, 2009, the motion judge provided the hospital's counsel with Exhibit C-2. Consistent with the pre-arranged procedures, the motion judge did not furnish plaintiffs' counsel with Exhibit C-1 or Exhibit C-2, pending defense counsel's review. Meanwhile, the motion judge was notified that plaintiffs had reached a settlement with Dr. Bentolila and a friendly hearing was scheduled.
The hospital objected to the motion judge's intended disposition of the privilege issues. It contended that the judge's proposed redactions were inadequate to protect its rights of confidentiality. The hospital's counsel accordingly requested an ex parte hearing before the motion judge, in order to explain why the court's proposed rulings were incorrect.
In advance of the confidential hearing, the hospital's counsel supplied the court with an ex parte brief. In that brief, the hospital's counsel specifically asserted, for the first time, that the materials at issue were privileged under the PSA. The brief asserted that, irrespective of the fact that the documents may contain some factual statements, they were fully shielded under the PSA from disclosure.
The motion judge conducted the ex parte hearing on September 15, 2009.6 As a result of the hospital's invocation of the PSA, the motion judge reconsidered his proposed disposition of the privilege issues. The judge concluded that pursuant to the PSA, the materials at issue were exempted from disclosure. Consequently, the judge entered an order on September 15, 2009, denying in all respects plaintiffs' motion to compel production of the documents.
Upon receiving the court's September 15, 2009 order, plaintiffs' counsel requested an opportunity to be heard. The motion judge agreed to entertain plaintiffs' objections, and convened a hearing in open court for that purpose on November 18, 2009.
At the November 18 hearing, the judge first explained to counsel that he could not discuss the contents of the documents in detail, but instead would refer to them generically. After colloquy with counsel, the judge reaffirmed his ex parte decision to withhold the documents in their entirety, mainly for the following reasons: (1) the legislative policies underlying the PSA that encourage hospitals to perform confidential internal self-critical analyses after adverse events occur; (2) the one document that he otherwise would have released in redacted form to plaintiffs' counsel under Christy (the June 1, 2007 document) constituted "a quality assurance report" fully protected from disclosure by the PSA; (3) plaintiffs had not sufficiently proven a need for disclosure, as reflected by their ability to settle with Dr. Bentolila without seeing the documents at issue; and (4) the judge's perception that the factual information on the quality assurance report otherwise could have been obtained by plaintiffs through discovery.7
During the course of his oral ruling on November 18, the motion judge characterized the PSA as "a legislative overruling" of this court's opinion in Christy. The judge noted that the legislative intent of the PSA was aimed at "the overall good of society." The judge recognized that the PSA sought to reduce future instances of medical mishaps, by allowing hospitals to engage in frank and confidential post-mishap discussions about how to prevent future occurrences.
The motion judge entered a corresponding order on November 18, 2009. That order memorialized the judge's conclusion that the documents in question must be fully protected from disclosure, and denied plaintiffs' request to reconsider the court's ultimate disposition.
Plaintiffs moved for leave to appeal the trial court's orders concerning these issues, a motion which we granted. Other than the hospital, none of the remaining defendants have participated in the appeal. In addition to the arguments presented by plaintiffs' and the hospital's counsel, we have also considered the competing views of two amicus curiae: (1) the New Jersey Hospital Association ("NJHA"), which echoes the hospital's claims of confidentiality, and (2) the New Jersey Association for Justice ("NJAJ"), which amplifies plaintiffs' position that the documents should be disclosed, at least insofar as they contain any relevant factual information.
This interlocutory appeal implicates not only the PSA and the Christy decision, but other statutes, regulations, and case law affecting the confidentiality of internal hospital documents containing "self-assessments." For the reasons explained in the pages that follow, we do not at this time resolve the many issues of law and statutory construction presented here, particularly in light of several critical shortcomings in the factual record. However, we present an overview of what appear to be the relevant legal authorities and unresolved factual questions, so as to provide guidance to the parties and to the trial court on remand.
We begin with Christy, supra, an opinion that this court issued on February 17, 2004, coincidentally just two months before the Legislature adopted the PSA in April 2004.
Christy arose out of a medical negligence action brought by a plaintiff who became paralyzed during his course of treatment at the defendant hospital. In the aftermath of the plaintiff's paralysis, the hospital's internal "peer review committee" investigated the matter and generated a written report. The plaintiff sought a copy of that report. The hospital resisted, claiming that the report was privileged from disclosure as a confidential, self-critical analysis. The trial court, after examining the report in camera, determined that it was not privileged, and that it was discoverable in its entirety. On appeal, we affirmed the trial judge's determination in part and reversed it in part. Christy, supra, 366 N.J. Super. at 545.
We recognized in Christy that "competing interests" affect the potential disclosure of a hospital's confidential peer review materials. Id. at 541. On the one hand, a patient has a legitimate interest in discovering "information concerning his care and treatment," which potentially could aid him "in prosecuting a personal injury malpractice suit." Ibid. On the other hand, a hospital's "right to maintain the confidentiality of its peer review committee report embraces a public interest to improve the quality of care and help to ensure that inappropriate [medical] procedures, if found, are not used on future patients." Ibid.
We balanced those opposing interests in Christy by treating the factual portions of the committee report differently than the evaluative or deliberative portions. Specifically, we held that the "purely factual material" outlined in the relevant section of the report was discoverable. Id. at 543. However, the "opinions, analysis, and findings of fact concerning the events that are the subject matter of [the] plaintiff's case" were protected from disclosure. The panel further found that the plaintiff had not made a showing of compelling need for disclosure of such deliberative materials. Id. at 544. Accordingly, Christy instructs that the discoverability of such peer review reports hinges upon whether their specific contents are factual, as opposed to evaluative, in nature. See also Payton v. N.J. Tpk. Auth., 148 N.J. 524, 548 (1997); McClain v. Coll. Hosp., 99 N.J. 346, 363 (1985).
In distinguishing between factual and evaluative aspects of a hospital's self-assessment materials, Christy observed that the availability of factual information from other sources does not necessarily preclude disclosure of facts contained in those materials. As the court noted, although the discoverability of the facts from other sources is a relevant factor, it is not a dispositive one. See Christy, supra, 366 N.J. Super. at 543 (recognizing that while "the availability of relevant facts from multiple sources" may help support a hospital's claims of confidentiality, disclosure from multiple sources may also reveal "inconsistencies that [may] aid in the search for truth").
Although they are not specifically mentioned in Christy, several regulatory and professional standards existed before the Legislature's adoption of the PSA in 2004 that pertain to the activities of hospitals in engaging in forms of internal self-assessments and reporting. Some or all of those provisions and practices apparently continue to this day.
For example, N.J.A.C. 8:43G-27.1 to -27.6 requires hospitals to conduct medical "peer review programs" as a condition of their licensure under N.J.A.C. 8:43G-2.12(a). Among other things, these licensure regulations obligate hospitals to engage in "an ongoing process of monitoring patient care." N.J.A.C. 8:43G-27.5(a). Such "[e]valuation of patient care throughout the hospital is [to be] criteria-based, so that certain review actions are taken or triggered when specific quantified, predetermined levels of outcomes or potential problems are identified." Ibid. The hospital's quality improvement program must "follow up on its findings to assure that effective corrective actions have been taken[.]" Id. at -27.5(c). The regulations prescribe such review procedures in several enumerated areas, including "surgical case review." Id. at -27.5(d); see also Reyes v. Meadowlands Hosp. Med. Ctr., 355 N.J. Super. 226, 233 (Law Div. 2001) (citing these regulatory provisions). As noted in Reyes, the regulations pertaining to such "peer review quality assurance processes" make "no provision for the results of such a process to be privileged." Reyes, supra, 355 N.J. Super. at 233.
Additionally, in N.J.S.A. 2A:84A-22.10(d), a statute similarly predating the PSA, the Legislature created immunity from civil liability for
[members of a] hospital peer-review committee having the responsibility for the review of the qualifications and credentials of physicians or dentists seeking appointment or reappointment to the medical or dental staff of a hospital, or of questions of the clinical or administrative competence of physicians or dentists so appointed, or of matters concerning limiting the scope of hospital privileges of physicians or dentists on the staff, or of matters concerning the dismissal or discharge of same.
Notably, the Legislature did not include in that particular statute "a privilege regarding the information contained within the Peer Review process." Reyes, supra, 355 N.J. Super. at 234 (quoting Bundy v. Sinopoli, 243 N.J. Super. 563, 569 (Law Div. 1990)).
Furthermore, the Legislature has afforded certain confidentiality protections to "[i]nformation and data secured by and in the possession of utilization review committees established by any certified hospital or extended care facility[.]" N.J.S.A. 2A:84A-22.8. A "Utilization Review Committee is a specific committee created by the [hospital's] utilization review plan[, which] is a requirement of a hospital's participation under the Social Security Act, and its further participation in federal and state funded programs." Todd v. So. Jersey Hosp. Sys., 152 F.R.D. 676, 682 (D.N.J. 1993) (citing Young v. King, 136 N.J. Super. 127, 130 (Law Div. 1975)).
Apart from these codified provisions predating the PSA, as recognized in Reyes, hospitals have engaged in "self-critical analysis procedures" established under accreditation guidelines promulgated by the Joint Commission on Accreditation of Healthcare Organizations. Reyes, supra, 355 N.J. Super. at 229-30. That national accreditation body calls for hospitals to perform such a self-critical assessment after the occurrence of so-called "Sentinel Events," which involve potential medical errors or unanticipated negative outcomes. Id. at 229. In those instances, the hospital is to perform a "root cause analysis" to determine what caused the adverse outcome and to consider how to make systemic changes that might prevent such outcomes in the future. Ibid.
It is also conceivable that individual hospitals through their own policies and practices might have voluntarily instituted other forms of internal processes for self-critical examination and assessment. The present record does not indicate whether Valley Hospital had established such internal processes on a voluntary basis prior to the enactment of the PSA.
The PSA was signed into law on April 27, 2004 and became effective on October 24, 2004. The central object of the PSA is to assure that hospitals and healthcare facilities report certain serious preventable adverse events, and also to encourage the voluntary reporting of other events that are likely to affect patient care and safety. N.J.S.A. 26:2H-12.25(c), -12.25(e). The PSA also provides a mechanism for hospitals to engage in "a process of self critical analysis" through confidential, cross-discipline communication. Id. at -12.25(g).
The Legislature specifically determined in the PSA that, "[t]o encourage disclosure of these [adverse] events so that they can be analyzed and used for improvement, it is critical to create a non-punitive culture that focuses on improving processes rather than assigning blame." Id. at -12.24(e). Accordingly, the PSA generally protects the confidentiality of these documents under subsection (g), which states, in relevant part:
Any documents, materials or information developed by a health care facility as part of a process of self-critical analysis conducted pursuant to subsection b. of this section concerning preventable events, near-misses and adverse events, including serious preventable adverse events, and any document or oral statement that constitutes the disclosure provided to a patient or the patient's family member or guardian pursuant to subsection d. of this section, shall not be . . . subject to discovery or admissible as evidence or otherwise disclosed in any civil, criminal or administrative action or proceeding[.]
[Id. at -12.25(g) (emphasis added).]
The statute defines a "serious preventable adverse event" as "an adverse event that is a preventable event and results in death or loss of a body part, or disability or loss of bodily function lasting more than seven days or still present at the time of discharge from a health care facility." Id. at -12.25(a).
Subsection (b) of the PSA addresses the need for each hospital to institute a "patient safety plan." Id. at -12.25(b). It prescribes that "pursuant to this act, a health care facility shall develop and implement a patient safety plan for the purpose of improving the health and safety of patients at the facility." Ibid. (emphasis added). Subsection (b) further mandates that
The patient safety plan shall, at a minimum, include:
(1) a patient safety committee, as prescribed by regulation;
(2) a process for teams of facility staff, which teams are comprised of personnel who are representative of the facility's various disciplines and have appropriate competencies, to conduct ongoing analysis and application of evidence-based patient safety practices in order to reduce the probability of adverse events resulting from exposure to the health care system across a range of diseases and procedures;
(3) a process for teams of facility staff, which teams are comprised of personnel who are representative of the facility's various disciplines and have appropriate competencies, to conduct analyses of near-misses, with particular attention to serious preventable adverse events and adverse events; and
(4) a process for the provision of ongoing patient safety training for facility personnel.
[Ibid. (emphasis added).]
To carry out these objectives statewide, the PSA directs the Department of Health and Senior Services to "establish a mandatory, confidential system for reporting serious preventable adverse events that occur in all licensed health care facilities in the State[.]" 39 N.J.R. 314 (2007) (citing N.J.S.A. 26:2H-12.25(c)) (summarizing proposed new rule N.J.A.C. 8:43E-10); see also 40 N.J.R. 1094 (2008) (adopting N.J.A.C. 8:43E-10 and summarizing public comments and agency responses to proposed new rule N.J.A.C. 8:43E-10).
Subsection (k) of the PSA presents a significant caveat. It states that "[n]othing in this [A]ct shall be construed to increase or decrease the discoverability, in accordance with Christy[, supra], of any documents, materials or information if obtained from any source or context other than those specified in this act." N.J.S.A. 26:2H-12.25(k). This citation to Christy in subsection (k) evidently resulted from a late insertion into the pending bill between February 2004, when Christy was decided, and April 2004, when the PSA gained final passage in the Legislature. See Senate Committee Substitute (First Reprint) for Senate, No. 557 (adopting Assembly Health & Human Services Committee amendments, March 4, 2004).
The parties and the respectively-aligned amici disagree over the meaning of the PSA and its overall impact upon a hospital's internal self-assessments. Both sides isolate distinct segments of the statute's legislative history in support of their positions. The hospital and the NJHA contend that the PSA caused a sweeping change in the law of privilege, and that it insulates from disclosure a wide range of documents and information that previously may have been subject to disclosure. They read the exception in subsection (k) of the statute respecting Christy in a narrow fashion, arguing that the factual/evaluative distinction adopted in Christy is not applicable to documents that are now generated within a hospital pursuant to the PSA.
Conversely, plaintiffs and the NJAJ argue that the PSA is not so comprehensive or momentous. They contend that subsection (k) preserves the applicability of Christy and other legal authorities predating the PSA, to the extent they permitted full or partial disclosure of certain internal hospital self-assessments. Plaintiffs and the NJAJ afford a broad reading to subsection (k), asserting that Christy's factual/evaluative distinction still applies to documents generated under the PSA if the information is also contained in other discoverable sources that preexisted the PSA. Furthermore, plaintiffs question whether the PSA applies to any of the contested documents in this case, arguing that there is no proof in this record that Valley Hospital reported the events concerning Chaya's birth to state health officials pursuant to N.J.S.A. 26:2H-12.25(c) or -12.25(e).
We decline to resolve these interpretative issues at this time, because the case is presently not in an appropriate posture to do so. The record before us is inadequately developed in numerous respects, particularly as to the genesis of each of the documents claimed by the hospital to be privileged. In addition, the parties and the amici have also put forth several legal arguments on appeal particularly as to the interplay between the PSA and other statutes, regulations, accreditation practices, and case law that were not presented to, and therefore not expressly considered by, the trial court. It is imprudent for us to resolve in the first instance these important legal issues that either were not raised below, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), or which were raised but not resolved in the trial court. See Ins. Co. of N. Am. v. Gov't Emp. Ins. Co., 162 N.J. Super. 528, 537 (App. Div. 1978).8
The uncertainties in the present record concerning the origins and purposes of the allegedly-privileged documents are especially troublesome. One of the documents at issue, dated May 26, 2007, bears a heading of "Occurrence Report," with no further explanatory label or statutory cross-reference. Another one of the documents, dated June 1, 2007, contains a boxed legend on its first page citing the PSA, stating that "This Quality Assurance Document was created and is protected in accordance with N.J.S.A. 26:2H-12.23 et seq." Two of the documents, dated June 29 and July 20, 2007, bear a different heading with no statutory citation: "CONFIDENTIAL RISK MANAGEMENT/QUALITY ASSURANCE DOCUMENT." Another document, dated July 9, 2007, contains no label and is on business letterhead. Lastly, the document dated September 10, 2007 bears this heading: "CONFIDENTIAL AND PRIVILEGED Pursuant to N.J.S.A. 2A:84A[-]22.8," the utilization review statute.
We are unsure what to make of this hodgepodge of labels. To be sure, as all counsel agree, the mere labeling of a hospital document does not necessarily control its legal classification for purposes of the PSA or any other privilege, just as the stamping of a document as "attorney-client" or "work product" does not ensure that the privilege was appropriately invoked by the person who applied the stamp. Fair evaluation of whether a document is entitled, in full or in part, to judicially-enforced confidentiality requires more information about the actual genesis of the document, such as why it was created, for whom it was prepared, who participated in its creation, whether it is a response to (or whether it prompted) other communications, whether it was disclosed to persons other than those listed within it, and so on. Such important contextual information has not been developed in the present record.
The record also reveals little about the relevant organizational structures and processes for self-assessment within Valley Hospital, either before or after the enactment of the PSA. For instance, it appears that the hospital presently has a Director of Patient Safety, but we cannot tell what the responsibilities of that person are. Nor do we know how those current functions compare with other functions concerning peer review and self-critical assessments performed at the hospital before the PSA's enactment. The record is also silent as to how the functions of the Patient Safety Director, or any committees or operations under the scope of his or her authority, correspond to other related ongoing operations within the hospital, such as a "Utilization Review Committee" or any "Peer Review" bodies.
These many question marks in the present record may be attributable, at least in part, to the apparent fact that the hospital did not file a supporting certification with the trial court, either in sealed or unsealed form, from a hospital official on personal knowledge, establishing the specific basis for the hospital's assertion that the entire contents of each of the documents in question are privileged. See R. 4:10-2(e)(1) (requiring a litigant who seeks to withhold information by asserting a privilege to "make the claim expressly and [to] describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection"). Such a detailed certification would have aided the court in understanding the genesis of each of the challenged documents, in relation to the law and also the hospital's various internal practices and procedures. Instead, the hospital's reliance on the PSA in this case seemingly arose as an afterthought, in the form of an ex parte brief supplied to the motion judge after he had already reviewed the documents in camera and after he had made his proposed redactions.
The motion judge's findings of fact could also be enhanced in several important respects. Even assuming, merely for the sake of argument, that the factual/evaluative distinctions in Christy apply to the contested documents here, the judge's proposed initial "mark-up" of the documents and his transcribed rulings do not explain why he determined that specific portions of the documents were privileged and why others were not. We do not know, for example, if the judge concluded that all of the redacted portions were strictly evaluative and non-factual in nature.9 To the extent that the judge noted that plaintiffs could have obtained the information in the "quality assurance report" from other sources in discovery, we do not know how that finding is reconciled with the cautionary language in Christy, supra, 366 N.J. Super. at 543, that treats the availability of facts from other sources as non-dispositive.
As our case law instructs:
When a New Jersey trial court reviews documents in camera, it must "make specific determinations regarding plaintiff's access to them, including an expression of reasons for the court's rulings." The trial court must examine each document individually, and explain as to each document deemed privileged why it has so ruled.
[Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003) (quoting Payton, supra, 148 N.J. at 550).]
See also Rosenberg v. State, 396 N.J. Super. 565, 581 (App. Div. 2007) (applying these principles and remanding the case to the trial court for more specific findings explaining why it found that each document at issue was privileged).
Furthermore, in concluding that the materials at issue were privileged under the PSA, the motion judge did not specifically determine whether they were of a kind, or contained information and analyses, that the hospital had routinely compiled prior to the adoption of the PSA. The judge did not have occasion to address the legal interplay between the PSA and the other pertinent regulatory provisions and statutes, including N.J.S.A. 2A:84A-22.8, a statute which is specifically referenced on the top of the first page of the September 10, 2007 document. Finally, the judge was not asked to pass upon whether it would be significant to his analysis under the PSA if the hospital indeed failed to report Chaya's circumstances to State regulators.
All of these open questions are relevant to the legal arguments now being advanced in this interlocutory appeal. They are best addressed in the first instance in the trial court, now with the benefit of the more-refined advocacy of the parties and, if they seek to participate at the trial level, the amici.
For these many reasons, we vacate our order granting leave to appeal and remand this matter to the trial court for further development of the record and the pertinent legal issues. The remand shall address each of the open issues that we have identified in this opinion.
To expedite and help guide the remand process, we direct the hospital to furnish the trial court within thirty days with a detailed certification, which may be filed in part under seal, as may be necessary. That certification shall address, on a document-by-document basis, the origins and purposes of each document, a description of the internal processes within the hospital that generated each document, and how those processes relate to pertinent statutes, regulations, accreditation procedures, and other standards apart from the PSA.
On remand, the trial court shall have discretion to permit plaintiffs to engage in limited discovery on these matters, as may be appropriate. Such discovery, if warranted, might explore the bona fides of the privilege claims, the hospital's self-assessment processes (both before and after the enactment of the PSA) and other more contextual considerations, without disclosing to plaintiffs the specific contents of the documents themselves. To assist the trial court in its further evaluation, counsel also shall furnish it with the briefs that were filed on appeal and with any pertinent materials from the legislative history.
At the conclusion of the remand, the trial court shall make supplemental findings addressing the relevant legal and evidentiary issues in a detailed fashion, in accordance with the specificity required by Payton, supra, 148 N.J. at 550, and other case law. Those supplemental findings may be placed under seal, but only to the extent necessary to maintain confidentiality and to avoid premature disclosure. The trial court is free, of course, to reconsider its prior rulings, in light of the contextual information that will be developed and the additional legal authorities provided by counsel on the remand.
We are mindful of the additional burdens on the litigants and upon the trial court associated with remanding this case. Even so, a remand is warranted to resolve the many present gaps in the record and thereby enable a proper ultimate resolution of the important issues some of first impression that are raised.
Following the trial court's ultimate disposition on remand, any aggrieved party may renew a motion with this court for leave to appeal.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
1 Although we have not been furnished with Dr. Chu's deposition transcript, it is not necessary for our review of the privilege issues before us.
2 Nurse Patel, who was added as a defendant in the first amended complaint, was ultimately dismissed with prejudice from the action by stipulation in September 2009.
3 As the result of a settlement entered into with plaintiffs, Dr. Bentolila has also been dismissed as a party defendant.
4 The headings on the six documents do not all precisely match the descriptive headings used in the hospital's discovery response. For sake of clarity, the documents provided to us under seal bear the following dates and are of the following lengths: (1) May 26, 2007 (one page); (2) June 1, 2007 (three pages); (3) June 29, 2007 (two pages); (4) July 9, 2007 (one page); (5) July 17, 2007 (two pages); and (6) September 10, 2007 (four pages). The discrepancy concerning the proper descriptions of the contested documents shall be resolved by the trial court on remand.
5 This possible oversight should be addressed on the remand that we have ordered, infra.
6 At our request, we have been furnished with a sealed transcript of the September 15, 2009 ex parte proceeding. We shall not discuss or quote from that transcript, except to the extent that it contains generic and other non-confidential matters.
7 At oral argument, at both the trial level and in this court, the hospital's counsel was unsure whether all of the persons identified in the contested documents had already been made known to plaintiffs in the hospital's answers to interrogatories. We cannot tell from the record if the names of all of those persons were otherwise disclosed in depositions or in other discovery provided by defendants.
8 Neither the parties, nor the amici, have addressed whether the statute's restriction on evidential admissibility in the courts violates principles of separation of powers, or the Legislature's apparent failure to follow the prescribed procedures for the adoption of evidence rules under the Evidence Act of 1960, N.J.S.A. 2A:84A-33 to -44. See also N.J. Const., art. V. section 2, para. 3; State v. Byrd, 198 N.J. 319, 342-50 (2009); Busik v. Levine, 63 N.J. 351, 367-68, appeal dismissed, 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed.2d 733 (1973); Winberry v. Salisbury, 5 N.J. 240, 245-46, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). Since this potential constitutional issue is not briefed or argued, we do not reach it or comment upon it.
9 We also do not know whether or not the judge made any determination with respect to the "Occurrence Report" dated May 26, 2007, which in the form it was provided to us was attached to a cover letter from the hospital's counsel to the judge. This particular document was contained in neither Exhibit C-1 or Exhibit C-2.