ARIANNA PRUETT THOMSON v. CRAIG WIENER, M.D.

NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2073-17T3

ARIANNA PRUETT THOMSON and
PAUL THOMSON,

              Plaintiffs-Respondents,

v.

CRAIG WIENER, M.D., and
COMPREHENSIVE WOMEN'S CARE
OF PARAMUS,

              Defendants,

and

HACKENSACK UNIVERSITY MEDICAL
CENTER,

          Defendant-Appellant.
___________________________________

              Argued May 17, 2018 – Decided May 30, 2018

              Before    Judges    Simonelli,     Haas    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-4284-16.

              Richard J. Mirra argued the cause for
              appellant (Hoagland, Longo, Moran, Dunst &
              Doukas, LLP, attorneys; Richard J. Mirra, of
              counsel and on the brief).
           Brian E. Mahoney argued the cause for
           respondents (Blume, Forte, Fried, Zerres &
           Molinari, PC, attorneys; Carol L. Forte, of
           counsel; Brian E. Mahoney, on the brief).

PER CURIAM

      By leave granted, defendant Hackensack University Medical

Center (HUMC) appeals from the November 16, 2017 Law Division

order directing it to provide three patient records to plaintiffs

in this medical malpractice case, despite HUMC's claim that the

records were confidential and protected from disclosure under the

Patient Safety Act (the PSA), 
N.J.S.A. 26:2H-12.23 to -12.25.                  For

the   reasons   that   follow,   we   reverse       and    remand   for   further

proceedings.

      Plaintiffs   Arianna   Pruett       Thomson    and    her   husband,    Paul

Thomson, allege that Arianna's physician, defendant Craig Wiener,

M.D., negligently treated her while she was a patient at HUMC and,

as a result, the parties' baby died shortly after birth.                         In

discovery, plaintiffs asked HUMC for Arianna's medical records.

In the course of responding to that request, HUMC produced a

"Privilege Log" identifying ten documents which it asserted were

confidential under the PSA because they were prepared as part of

the hospital's self-critical analysis of Arianna's case.

      By way of background, the Legislature enacted the PSA in 2004

"to reduce the incidence of medical errors that may endanger


                                      2                                   A-2073-17T3
patients in health care facilities."          C.A. ex rel. Applegrad v.

Bentolila,   
219 N.J.   449,   451   (2014).   The    PSA   "imposed   new

requirements for evaluating and reporting of adverse events, and

created a statutory privilege shielding specific communications

from discovery in litigation."         Id. at 451-52.

     Specifically, the PSA

          establishe[d] an absolute privilege for two
          categories of documents.       
N.J.S.A. 26:2H-
          12.25(f) (subsection (f) privilege) applies to
          the   first   category,   which   consists   of
          documents received by the Department of Health
          (the Department) pursuant to the mandatory
          reporting    requirement,    
N.J.S.A.    26:2H-
          12.25(c) (subsection (c)) or the voluntary
          disclosure provision, 
N.J.S.A. 26:2H-12.25(e)
          (subsection (e)). 
N.J.S.A. 26:2H-12.25(g)
          provides a similar privilege (subsection (g)
          privilege) to a second category of documents,
          developed   as   part   of   a   "self-critical
          analysis" that might never be provided to the
          Department.

          [Conn v. Rebustillo, 
445 N.J. Super. 349, 350
          (App. Div. 2016).]

     Pursuant to the subsection (f) privilege, "[a]ny documents,

materials or information received by" the Department from a health

care facility pursuant to the PSA's two reporting provisions,

subsection (c) and subsection (e), "that are otherwise not subject

to mandatory reporting pursuant to [subsection (c)] shall not be

. . . subject to discovery or admissible as evidence or otherwise

disclosed in any civil, criminal, or administrative action or


                                       3                           A-2073-17T3
proceeding[.]"      
N.J.S.A. 26:2H-12.25(f)(1).             Thus, the subsection

(f) privilege applies to documents that the medical facility

submits to the Department.

      However, the subsection (g) privilege does not condition

confidentiality on whether the facility submits the record to the

Department.      Instead,     the   subsection     (g)      privilege    "protects

communications      generated       in    the   setting       of     self-critical

analysis[,]" and provides:

           Any documents, materials or information
           developed by a health care facility as part
           of a process of self-critical analysis
           conducted   pursuant   to   [
N.J.S.A.   26:2H-
           12.25(b)]   concerning   preventable   events,
           near-misses and adverse events, including
           serious preventable adverse events . . . shall
           not be

           (1)   subject to discovery or admissible as
           evidence or otherwise disclosed in any civil,
           criminal    or  administrative    action   or
           proceeding.

           [Applegrad, 
219 N.J. at 467 (quoting N.J.S.A.
           26:2H-12.25(g)(1)).]

      Thus, subsection (g) "shields certain documents, materials

and   information    developed      by    a   health   care     facility    as    it

investigates and evaluates adverse events."                  Ibid.    In order to

qualify for this privilege, however, the "documents, materials and

information"   must    have    been      "developed    by    [the]    health   care




                                          4                                A-2073-17T3
facility    exclusively     during    the     process    of    self-critical

analysis[.]"      N.J.A.C. 8:43E-10.9(b)(1) (emphasis added).

     If neither the subsection (f) or subsection (g) statutory

privileges apply, the health care facility may still attempt to

shield its documents from discovery under the common law self-

critical analysis privilege recognized in Christy v. Salem, 
366 N.J. Super. 535 (App. Div. 2004).         Under the common law privilege,

disclosure of factual statements in self-critical analysis records

is   generally     permitted,   but       disclosure    of    subjective     or

"evaluative" communications is not.             Id. at 543-44; see also

Applegrad, 
219 N.J. at 465-66 (reiterating the Christy standard).

     Here, HUMC claimed that all ten documents listed in its

Privilege   Log    were   protected   by     either    the    subsection   (f)

privilege, the subsection (g) privilege, or the common law self-

critical analysis privilege discussed in Christy.                 Plaintiffs

responded by filing a motion to compel HUMC to provide the ten

records to the trial judge for his in camera review.               The judge

granted the motion and examined each of the documents.

     In his written decision accompanying the November 16, 2017

order, the judge ruled that three of the documents (Nos. 2, 9, and

10 in the Privilege Log) were protected from disclosure by the

subsection (f) privilege because HUMC had submitted them to the

Department.    The judge then performed a Christy analysis of the

                                      5                               A-2073-17T3
remaining seven documents.      The judge concluded that four of the

documents (Nos. 5, 6, 7, and 8 in the Privilege Log) contained "a

privileged   analysis    and   discussion   performed   by"   HUMC   and,

therefore, were "not subject to disclosure."       However, the judge

found that the entirety of Document No. 1, and portions of Document

Nos. 3 and 4 in the Privilege Log contained "purely factual

information" that had to be disclosed under Christy.

     Critically absent from the judge's written decision was any

discussion, or even a mention, of the subsection (g) privilege,

which HUMC contended applied to all of the documents, including

Nos. 1, 3, and 4.       On appeal, HUMC contends the judge erred by

failing to consider the subsection (g) privilege.        We agree.

     "We review the trial court's discovery decision for an abuse

of discretion, but we shall not defer to the trial court's decision

if 'based on a mistaken understanding of the applicable law.'"

Brugaletta v. Garcia, 
448 N.J. Super. 404, 411 (App. Div. 2017)

(quoting Applegrad, 
219 N.J. at 459).       Applying this standard, we

are unable to defer to the judge's decision concerning the three

documents at issue in this appeal because he mistakenly failed to

consider the subsection (g) privilege.       Instead, he only examined

the subsection (f) privilege and the common law self-critical

analysis privilege.



                                    6                            A-2073-17T3
     HUMC has not provided the three disputed documents to us on

appeal.   Therefore, we are unable to conduct an independent review

of these records to determine whether the subsection (g) privilege

shields them from discovery.      See R. 2:6-1(a)(1)(I) (requiring the

appellant to provide an appendix that contains "such . . . parts

of the record . . . as are essential to the proper consideration

of the issues").1     While we could simply decline to address the

issue presented in this appeal on this basis, Soc'y Hill Condo.

Ass'n, Inc. v. Soc'y Hill Assocs., 
347 N.J. Super. 163, 177-78

(App. Div. 2002), plaintiffs have not sought such relief, and we

trust the trial court can promptly correct its mistake if we simply

remand the matter to permit it to review the documents to determine

whether they are protected from disclosure under the subsection

(g) privilege.

     Therefore, we reverse the portions of the November 16, 2017

order   that   directed   HUMC   to   disclose   Document     No.   1   in    its

entirety, and parts of Document Nos. 3 and 4 to plaintiffs.                    We

remand to the trial court with the direction that it re-examine

these   documents   to    determine   whether    they   are   shielded       from

disclosure by the subsection (g) privilege.




1
   Plaintiff could have moved to seal the record on appeal to
protect the confidentiality of the records pending our review.

                                      7                                 A-2073-17T3
    Reversed    in   part,   and   remanded.   We   do   not    retain

jurisdiction.




                                   8                           A-2073-17T3