We know you heard from us very recently, and we hate to interrupt the beginning of the lazy days of summer (yes, we are almost there); but two very important New Jersey decisions have come down that warrant our intrusion.
First, the New Jersey Supreme Court has now stated its position on the recording of, and third-party attendance at, defense medical examinations (DMEs). The decision appears to create a presumption that these practices are permissible in the face of plaintiffs with cognitive limitations, psychological impairments or language barriers; placing the burden on the defense to move for a protective order and show otherwise. The Court goes on to lay out the procedures for what has to happen and places the ultimate decision on what should occur with the trial court.
Second, the New Jersey Appellate Division affirmed the absolute privilege applied to documents prepared under the auspices of the Patient Safety Act, whether the documents are provided to the Department of Health or otherwise.
As always, we hope you enjoy this edition of HKMP’s Case Alerts.
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DiFiore v. Pezic, __ N.J. __ (2023)
In this decision, the New Jersey Supreme Court has addressed a long-time debate between plaintiffs and defendants as to whether recording of and/or third-party attendance at a defense medical examination (“DME”) should be allowed when a plaintiff has alleged cognitive limitations, psychological impairments, or language barriers.
Rule 4:19 allows defendants to require plaintiffs be physically or mentally examined by defendants’ chosen expert in personal injury actions or other cases in which the mental or physical condition of the plaintiff is in controversy.
The Court affirmed the Appellate Division’s central holding last year in DiFiore v. Pezic, 472 N.J. Super. 100 (App. Div. 2022) that trial courts must determine what conditions to impose on a DME on a case-by-case basis, including who may attend and whether the examination may be recorded with “no absolute prohibitions or entitlements.”
The Court departed from the Appellate Division in one key respect: it declined to place the burden on plaintiff to justify why third-party observation or recordings should be permitted in each case. Instead, once the defendant issues notice to the plaintiff of a Rule 4:19 exam, the plaintiff must inform the defendant if they seek to bring a neutral observer or record the examination. The burden is then placed on the defendant to object; in which case the parties must meet and confer in an attempt to reach an agreement as to how to proceed. If an agreement is impossible, the defendant may move for a protective order under Rule 4:10-3, seeking to prevent the exam from being recorded or prevent third-party attendance, leaving the ultimate decision with the trial court.
The Court set forth factors that weigh in favor of allowing recording and neutral third-party observation, pointing to the plaintiff’s cognitive limitations, psychological impairments, language barriers, age, and inexperience with the legal system. On the other hand, the Court recognized that the defense is entitled to raise concerns that weigh against permitting recording or the presence of a third-party observer.
As a basis for its decision, the Court noted that DMEs are inherently adversarial and unique in being the only instance in which the defense can conduct discovery from a plaintiff without plaintiff’s counsel being present. The opinion points out that a DME reflects a profound power imbalance between the plaintiff and a medical professional with long experience in the examination of patients and participation in court proceedings. Because of the inherent adversarial nature, the Court held the burden should be on the defendant, not the plaintiff, as to why a neutral third-party observer or an unobtrusive recording should not be permitted in a particular case.
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NEW JERSEY APPELLATE DIVISION |
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Keyworth v. CareOne at Madison Avenue et al., __ N.J. Super. __ (App. Div. 2023)
The Appellate Division addressed whether incident and investigation reports developed as part of self-critical analysis pursuant to a facility’s Patient Safety Plan are privileged under the Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25 and whether that privilege is limited to materials reported to the DOH. In the consolidated appeals in Keyworth v. Care One at Madison Avenue et al., and Bender v. Harmony Village at CareOne Paramus et al., defendants argued the trial court had erred by ruling the documents were not privileged and therefore discoverable.
The two underlying actions involved separate incidents resulting in injuries at healthcare facilities. When discovery ensued and plaintiffs propounded Form C Uniform Interrogatories, defendants identified, but did not disclose, investigation reports regarding plaintiffs’ care. In both actions, defendants asserted the reports were shielded from disclosure pursuant to the self-critical analysis privilege afforded by the PSA. In one case the materials had been reported to the DOH, in the other they had not.
The Appellate Division upheld the broad and absolute protection of PSA materials in both instances, noting two routes to qualifying for the privilege. The Appellate Division explained if the reporting documents are submitted to the DOH pursuant to N.J.S.A. 26:2H12.25(f) or meet the requirements of N.J.S.A. 26:2H-12.25(g), they are absolutely privileged, statutorily protected from disclosure and not subject to discovery or admissible at trial. Subsection (f) protects all documents received by the Department of Health from discovery, plain and simple. Subsection (g), on the other hand, is more nuanced protecting internal documents not submitted to the DOH only if they are developed … as part of a patient safety plan’ that complies with the requirements set forth in N.J.S.A. 26:2H12.25(b).
Looking at the facts of the two involved cases, the Court found that in Keyworth the incident report and associated documents in question were developed during a process of self-critical analysis as part of a Patient Safety Plan that complied with the requirements of N.J.S.A. 26:2H12.25(b) and thus absolutely privileged, despite not having been reported to the DOH. As to Bender, the incident report and associated documents were found equally protected because they had been prepared pursuant to facility’s QAPI plan intended to comply with the requirements of the PSA, and the incident report was submitted to the DOH.
Despite its strong application of the PSA privilege, the Court made clear that the PSA protections do not vitiate plaintiffs’ right to discover facts through conventional means of discovery if obtained from any source other than those specified in the statute; noting documents created outside the self-critical analysis process are subject to discovery. The Court further invited the plaintiffs to request from the defendants “a narrative to steer them to information contained in thousands of pages of medical records” relevant to the incidents, if the records were indeed voluminous, as directed may be attained in Brugaletta v. Garcia, 234 N.J. 225 (2018).
The Court reversed the trial court grants of plaintiffs’ motion to compel and directed the trial court to enter a protective order protecting the confidentiality of the documents.
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As always, if you have any questions regarding any of the cases in this issue of Case Alerts, or if HKMP can be of service to you, then please contact us at info@hkmpp.com or 973-912-5222.
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