RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4342-15T1

JANELLE BRUGALETTA,

Plaintiff-Respondent,

v.

CALIXTO GARCIA, D.O., 

STEVEN D. RICHMAN, M.D. and

PATRICK J. HINES, M.D.,

Defendants,

and

CHILTON MEMORIAL HOSPITAL,

Defendant-Appellant.

___________________________________

Argued December 6, 2016 – Decided 

Before Judges Fisher, Ostrer and Vernoia.

On appeal from an interlocutory order of the 

Superior Court of New Jersey, Law Division, 

Passaic County, Docket No. L-112-15.

Anthony Cocca argued the cause for appellant 

(Bubb, Grogan & Cocca, LLP, attorneys; Mr. 

Cocca, of counsel and on the briefs; Katelyn 

E. Cutinello, on the briefs).

Ernest P. Fronzuto argued the cause for 

respondent (Fronzuto Law Group, attorneys; 

Mr. Fronzuto and Casey Anne Cordes, on the 

brief).

The opinion of the court was delivered by

APPROVED FOR PUBLICATION

February 6, 2017

APPELLATE DIVISION

February 6, 2017
2 A-4342-15T1

OSTRER, J.A.D.

This medical malpractice case involves the Patient Safety 

Act (the Act), N.J.S.A. 26:2H-12.23 to -12.25, which creates an 

absolute privilege over certain documents that a hospital 

develops as part of a self-critical analysis. See N.J.S.A.

26:2H-12.25(g). The trial court compelled defendant Chilton 

Medical Center (Chilton)1 to disclose to plaintiff, Janelle 

Brugaletta, a redacted report containing Chilton's self-critical 

analysis of Brugaletta's care. The court ordered disclosure 

because it found: (1) Brugaletta had suffered a "serious 

preventable adverse event" (SPAE), see N.J.S.A. 26:2H-12.25(a); 

and (2) Chilton failed to report the SPAE to the New Jersey 

Department of Health (the Department) or to Brugaletta, as the 

Act required. See N.J.S.A. 26:2H-12.25(c), -12.25(d).

By leave granted, Chilton appeals from the court's order. 

Chilton disputes the court's finding that Brugaletta suffered a 

SPAE and contends the court erred in compelling it to report the 

SPAE to the Department and Brugaletta. More importantly, 

Chilton argues the Act's absolute privilege over a self-critical 

analysis may not be pierced based on a failure to report a SPAE. 

 

1 Plaintiff denominated defendant as "Chilton Memorial Hospital" 

in her complaint. Chilton answered the complaint in the name of 

"AHS Hospital Corp./Children Medical Center." 
3 A-4342-15T1

Rather, Chilton contends the privilege is conditioned solely on 

compliance with statutory and regulatory mandates governing the 

formation of a patient safety plan and related procedural 

requirements. See N.J.S.A. 26:2H-12.25(b). 

We agree the privilege does not depend on compliance with 

the requirement to report a SPAE to the Department or the 

patient. We therefore reverse the trial court's order 

compelling partial release of a document revealing Chilton's 

privileged self-critical analysis. We also reverse the finding 

that there was a reportable SPAE because the finding lacked 

sufficient credible evidence in the record. 

I.

In the underlying malpractice action, Brugaletta alleges 

she arrived at Chilton's emergency room on January 20, 2013, 

complaining of abdominal pain and a fever that had persisted for 

seven days. A twenty-three-year-old college student, she also 

complained of bodyaches, weakness, and a cough "productive of 

. . . thick phlegm." Her initial diagnosis was pneumonia. 

After she was admitted, she continued to complain of abdominal 

pain. A CT scan of her abdomen and pelvis was performed the day 

after she arrived at the hospital. It revealed a pelvic abscess 

that "most probably" resulted from a perforated appendix, 

according to one physician's report. 
4 A-4342-15T1

A large amount of purulent fluid2 was drained through the 

right ischial fossa.3 Although her abdominal symptoms soon 

improved, she developed fasciitis4 in the right thigh and right 

buttock muscle. One physician stated the fasciitis resulted 

from "the leakage of the drainage around the [ischial] nerve." 

Beginning January 23, 2013, Brugaletta underwent multiple 

debridements5 of the thigh and buttock muscles. She also had an 

appendectomy. In the midst of those repeated procedures, 

Brugaletta missed doses of a post-operation antibiotic despite a 

physician's orders, which were recorded in his January 30, 2013 

progress note.6 When Brugaletta was finally discharged on 

 

2 "Purulent fluid" is fluid that contains pus. Stedman's Medical 

Dictionary 1607 (28th ed. 2006).

3 The "ischial fossa" refers to a space between muscle and skin 

in the pelvic region. See Stedman's, supra, 765.

4 "Fasciitis" refers to an inflammation of a particular kind of 

tissue that covers the body below the skin. Stedman's, supra,

700, 706. 

5 A "debridement" is a procedure whereby "devitalized tissue and 

foreign matter" are removed from a wound. Stedman's, supra, 

496. The post-operative notes of January 23, 2013 reported 

"abundant dead fascia." 

6 We note that plaintiff does not address this oversight in her 

complaint, nor is it clear from the limited record before us 

that plaintiff is aware of it. The oversight is documented in 

the non-privileged chart. Although Chilton disclosed the 

document to the trial court as part of its ex parte submission, 

Chilton recognized that the document is not privileged and was 

included among its voluminous document production to Brugaletta.
5 A-4342-15T1

February 13, 2013, she was still suffering from severe pain; she 

was instructed to use a walker or a person to assist her; and 

she was prescribed pain medication and intravenous antibiotics 

for administration at home. 

In her initial complaint, Brugaletta alleged that Chilton 

and various providers negligently diagnosed and treated her 

condition. In particular, she highlighted the delay in 

diagnosing her "ruptured appendix and pelvic abscess." In her 

first amended complaint, she added that physicians negligently 

failed to detect a second abscess on her CT imaging. 

In response to Brugaletta's discovery demands, Chilton 

identified but withheld as privileged the document at issue in 

this case. Described as an "Event Detail History with all 

Tasks," Chilton asserted it was privileged pursuant to the Act 

and implementing regulations, as well as other grounds.7 

Brugaletta sought to compel production, initially seeking the 

court's in camera review. Chilton opposed and sought a 

protective order. In support, Chilton submitted the 

certification of Ebube Bakosi, M.D. the then-current chair of 

 

7 Chilton asserted privilege over another document pursuant to 

the Act and the common law "conditional privilege" as set forth 

in Christy v. Salem, 366 N.J. Super. 535, 540-42 (App. Div.

2004). The court's order allowing Chilton to withhold that 

document is not at issue in this appeal.
6 A-4342-15T1

Chilton's Preventable Events Review Committee (PERC), formerly 

known as the Patient Safety Committee. 

The trial court ordered the document's production for in 

camera review. The court also permitted Chilton to file an ex 

parte brief to present document-specific arguments against 

disclosure. Upon review, the court found that Chilton prepared 

the document, which the court marked as DCP-2, in accordance 

with the procedural requirements of the Act and implementing 

regulations. However, the court concluded that the document 

revealed that Brugaletta had suffered a separate SPAE and 

Chilton failed to report that SPAE to the Department or disclose 

to Brugaletta.8 

The court determined that when a hospital fails to report a 

SPAE to the Department or a patient, the court is empowered to 

compel it to do so. The court also concluded if the hospital's 

reporting failure was arbitrary or capricious, then the hospital 

shall lose its privilege under the Act. The court held that 

when the hospital has erred in failing to report without acting 

arbitrarily or capriciously, then a lesser remedy is 

appropriate. Applying those standards, the court found that 

 

8 Because we find DCP-2 is privileged and there is insufficient 

evidence supporting the court's finding of a SPAE, we do not 

detail the nature of the SPAE found by the court in order to 

protect Chilton's privilege against disclosure of its selfcritical analysis. 
7 A-4342-15T1

Chilton made a "clear error in judgment," but did not act 

arbitrarily or capriciously. The court concluded under those 

circumstances it was appropriate to release only the portion of 

DCP-2 that described the SPAE, while redacting the balance. 

Nonetheless, the portion to be disclosed still revealed aspects 

of Chilton's self-critical analysis. 

This appeal followed. Chilton contends the court erred in 

compelling it to disclose DCP-2, albeit redacted. Chilton 

argues that the court lacked authority to review its 

determination that no SPAE occurred and to compel reporting; 

and, in any event, neither the Act nor the implementing 

regulations authorize the partial or total loss of the privilege 

when a hospital fails to report a SPAE when required. 

Brugaletta argues the trial court did not err, and its order 

promotes compliance with the Act's reporting mandate.9 

 

9 Brugaletta also contends the trial court erred in finding that 

Chilton complied with the privilege's procedural prerequisites. 

As a result, she contends not even a limited privilege existed 

under the Act, and the discoverability of DCP-2 should have been 

analyzed under Christy, supra, 366 N.J. Super. at 540-42. 

However, in order to challenge the trial court's order, 

Brugaletta was required to file a cross-appeal. See Franklin 

Discount Co. v. Ford, 27 N.J. 473, 491 (1958) ("[A respondent], 

in order to attack the actions below which were adverse to him, 

must pursue a cross-appeal."); Pressler & Verniero, Current N.J. 

Court Rules, comment 2 on R. 2:3-4 (2016) ("Ordinarily, a 

respondent . . . must cross-appeal in order to obtain relief 

from the judgment."). We therefore shall not reach the issue. 

For the same reason, we shall not address her argument that she 

(continued)
8 A-4342-15T1

II.

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." C.A. ex rel Applegrad v. Bentolila, 219 N.J. 449, 459 

(2014) (internal quotation marks and citation omitted). We 

review legal issues de novo, including the trial court's 

interpretation of the Act. Ibid. 

In interpreting the Act and effectuating the Legislature's 

intent, we look first to the plain language, reading it as an 

integrated whole. Id. at 459-60. "If the plain language is 

clear, the court's task is complete." In re Kollman, 210 N.J.

557, 568 (2012). If it is unclear or ambiguous, we may resort 

to extrinsic aids. Ibid. "It is not the function of [a] 

[c]ourt to 'rewrite a plainly-written enactment of the 

 

(continued)

was entitled to access Chilton's ex parte brief, the hearing 

transcripts "placed on a sealed record," and the judge's sealed 

statement of reasons for its order. 

We also decline both parties' request that we endorse the 

trial court's procedural measures for protecting the document's 

confidentiality during its proceedings pending our review. The 

court's thoughtfulness is evident. We also appreciate the 

parties' desire for guidance. However, this aspect of the 

matter is not disputed. It also is conceivable that in another 

case and setting, a trial judge's exercise of discretion might 

call for different measures. We therefore believe it is 

inappropriate for us to reach the issue. 
9 A-4342-15T1

Legislature []or presume that the Legislature intended something 

other than that expressed by way of the plain language.'" 

DiProspero v. Penn, 183 N.J. 477, 492 (2005) (quoting O'Connell 

v. State, 171 N.J. 484, 488 (2002)). We respect, although we 

are not bound by, an agency's statutory interpretation embodied 

in its regulations. See Hargrove v. Sleepy's, L.L.C., 220 N.J.

289, 301-02 (2015); see also Mayflower Sec. Co. v. Bureau of 

Sec., 64 N.J. 85, 93 (1972) (stating an appellate court is "in 

no way bound by the agency's interpretation of a statute").

In this case, we do not write on a clean slate. The 

Supreme Court in C.A. reviewed in detail the purpose, structure, 

and meaning of the Act and its implementing regulations. C.A., 

supra, 219 N.J. at 460-68; see also Conn v. Rebustillo, 445 N.J. 

Super. 349, 354-57 (App. Div. 2016). We shall not repeat that 

analysis here. 

We focus on distinct obligations the Act imposes on a 

hospital: self-critical analysis and reporting. With respect to 

self-critical analysis, a hospital must create a safety plan 

establishing a dedicated patient safety committee. N.J.S.A.

26:2H-12.25(b). The purpose of such committees is, among other 

things, to provide processes by which hospitals can conduct 

analyses of harmful events and carry out root cause analyses for 

all SPAEs. Ibid.; N.J.A.C. 8:43E-10.4(d)(7). The reporting 
10 A-4342-15T1

obligation involves two recipients: regulators and patients. 

See N.J.S.A. 26:2H-12.25(c) and N.J.A.C. 8:43E-10.6 (requiring 

reporting to the Department);10 N.J.S.A. 26:2H-12.25(d) and

N.J.A.C. 8:43E-10.7 (requiring disclosure to patient). 

The definition of a "serious preventable adverse event" is 

gleaned from the definitions of its constituent terms. An 

"adverse event" is "a negative consequence of care that results 

in unintended injury or illness." N.J.S.A. 26:2H-12.25(a). 

"Serious" means "result[ing] 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." Ibid. "Preventable" means "could have been 

anticipated and prepared against, but occurs because of an error 

or other system failure." Ibid. 

To encourage compliance with the two obligations — selfcritical analysis and reporting — the Act creates a privilege. 

"The Act attaches a privilege to specific information generated 

by health care facilities in two distinct processes: the 

reporting of adverse events to regulators [and patients], and 

the investigative process that may or may not lead to such 

 

10 The statute requires reporting to the Department of Human 

Services in the case of State psychiatric hospitals. N.J.S.A.

26:2H-12.25(b). For simplicity's sake, we will refer only to 

the Department.
11 A-4342-15T1

reporting." C.A., supra, 219 N.J. at 467. This evidentiary 

privilege is broad: The covered items "shall not be . . . 

subject to discovery or admissible as evidence or otherwise 

disclosed in any civil, criminal, or administrative action or 

proceeding . . . ." N.J.S.A. 26:2H-12.25(f)(1), -12.25(g)(1).

The Act separately defines the privilege over reports 

depending on their potential recipient. With respect to 

reporting to regulators, N.J.S.A. 26:2H-12.25(f) creates a 

privilege over "documents, materials, or information received by 

[the Department] . . . pursuant to the provisions of subsections 

c[, which relates to mandatory reporting of SPAEs], and e[]," 

which relates to the voluntary reporting of non-SPAEs, that is, 

"near-misses, preventable events, and adverse events that are 

otherwise not subject to mandatory reporting pursuant to 

subsection c[] . . . ." Regarding reporting to patients, 

N.J.S.A. 26:2H-12.25(g) creates a privilege over "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" pertaining to mandatory 

reporting of SPAEs to patients. 

At issue in this case is the privilege over self-critical 

analysis. In addition to creating a privilege over SPAE reports 

to patients, subsection (g) extends a privilege to "[a]ny 
12 A-4342-15T1

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 

[SPAEs] . . . ." (Emphasis added). Subsection (b) compels 

hospitals to "develop and implement a patient safety plan," and 

to do so "[i]n accordance with the requirements established by

the commissioner by regulation." N.J.S.A. 26:2H-12.25(b). The 

subsection does not refer to the obligation to report SPAEs. 

That reporting obligation is imposed by N.J.S.A. 26:24-12.25(c). 

Thus, the only statutory precondition of this self-critical 

analysis privilege is compliance with subsection (b), pertaining 

to safety plans. The plain language of subsection (g) does not 

condition the privilege over self-critical analysis on 

compliance with the reporting obligation. In other words, so 

long as the self-critical analysis is conducted according to the 

proper procedures as set forth in the hospital's safety plan, it 

is protected. 

Although the regulations clarify preconditions of the 

privilege, they do not vary our conclusion that the privilege 

over a self-critical analysis exists independent of compliance 

with the reporting obligation. Specifically, N.J.A.C. 8:43E10.9(b) defines the privilege as covering "[d]ocuments, 
13 A-4342-15T1

materials, and information (including RCAs [root cause analyses] 

and minutes of meetings) developed by a health care facility 

exclusively during the process of self-critical analysis, in 

accordance with N.J.A.C. 8:43E-10.4, 10.5 or 10.6 concerning 

preventable events, near-misses and adverse events, including 

serious preventable adverse events . . . ." N.J.A.C. 8:43E10.9(b) (emphasis added); see also C.A., supra, 219 N.J. at 468. 

Accordingly, the sole requirement for the privilege to apply 

under subsection 10.9(b) is that the self-critical analysis be 

undertaken according to the appropriate procedure.

The fact that the privilege is conditioned upon procedural 

(and not substantive) concerns is further established by an 

examination of the regulations cited by subsection 10.9(b). The 

first of the three cited regulations, N.J.A.C. 8:43E-10.4, 

prescribes in greater detail than the Act the structure and 

duties of a patient or resident safety committee. The second, 

N.J.A.C. 8:43E-10.5, specifies in detail the safety planning 

obligation. 

We recognize that the third, N.J.A.C. 8:43E-10.6, addresses 

in detail the obligation to report SPAEs to the Department, 

N.J.A.C. 8:43E-10.6(a)-(d), and specifies several categories of 

SPAEs. N.J.A.C. 8:43E-10.6(e)-(j). However, we do not construe 

section 10.9 to mean that the self-critical analysis privilege 
14 A-4342-15T1

depends on reporting SPAEs to the Department. Notably, 

subsection 10.6(l) addresses the required contents of a root 

cause analysis. We presume the reference in subsection 10.9(b) 

to a self-critical analysis performed in accordance with section 

10.6 was intended to require compliance with subsection 10.6(l). 

In short, the relevance of the three regulations, including 

section 10.6, is their impact on the manner in which selfcritical analyses are performed. They elaborate the "process of 

self-critical analysis" cited in subsection 10.9(b). 

Furthermore, were reporting SPAEs a condition of the selfcritical analysis privilege, N.J.A.C. 8:43E-10.9(b) logically 

would also have referred to a fourth regulation, N.J.A.C. 8:43E10.7, which details the obligation to report SPAEs to patients. 

Omission of section 10.7 reflects the Department's view that 

reporting SPAEs is not a precondition of the self-critical 

analysis privilege. We have found nothing in the Department's 

rulemaking record that would support a contrary conclusion. See

39 N.J.R. 314(a) (Feb. 5, 2007) (proposed rulemaking); 40 N.J.R.

1094(a) (March 3, 2008) (final adoption). 

In C.A., the Court upheld a hospital's assertion of the 

self-critical analysis privilege over a document pertaining to a 

child born with anoxic brain injury. C.A., supra, 219 N.J. at 

452-54. The Court held that the hospital complied with the 
15 A-4342-15T1

Act's broad prerequisites set forth in N.J.S.A. 26:2H-12.25(b). 

Id. at 468-72. Since the hospital prepared the document before 

the Department adopted its regulations, compliance with them was 

not required. Id. at 468-69. 

The Court expressly rejected a connection between complying 

with the reporting obligation and the self-critical analysis 

privilege. The hospital had decided that the treatment did not 

result in a SPAE. Id. at 471. Significantly, our court found 

that decision "debatable," and concluded the newborn suffered a 

"potential" SPAE, and the hospital should have referred the 

matter to its patient safety committee to determine whether it 

was reportable. C.A. ex rel Applegrad v. Bentolila, 428 N.J. 

Super. 115, 153-54 (App. Div. 2012), rev'd, 219 N.J. 449 (2014). 

But the Supreme Court responded:

Contrary to the suggestion of the Appellate 

Division panel, the Hospital's conclusion 

that the event was not reportable does not 

abrogate the statutory privilege. Nothing 

in N.J.S.A. 26:2H-12.25(g) limits the 

privilege to settings in which the incident 

is ultimately determined to be subject to 

mandatory reporting under N.J.S.A. 26:2H12.25(c). The Patient Safety Act's 

privilege is not constrained to cases in 

which the deliberative process concludes 

with a determination that the case is 

reportable under N.J.S.A. 26:2H-12.25(c).

[C.A., supra, 219 N.J. at 471 n.14.] 
16 A-4342-15T1

In Conn, we emphasized the dichotomy between the two 

obligations — reporting and self-critical analysis — and the 

accompanying privileges. At issue was the privilege under 

N.J.S.A. 26:2H-12.25(f) governing reports to regulators. Conn, 

supra, 445 N.J. Super. at 350-51. We rejected the suggestion 

that the privilege depends on compliance with the safety 

planning mandates of subsection (b). Id. at 357. Rather, the 

privilege depended solely on whether the Department received the 

documents pursuant to N.J.S.A. 26:2H-12.25(c) and (e), governing 

mandatory and voluntary reporting to regulators. Ibid. 

Applying this same dichotomy, Conn supports our conclusion that 

the privilege over self-critical analysis as defined at N.J.S.A.

26:2H-12.25(g) does not depend on compliance with the mandatory 

reporting requirement of N.J.S.A. 26:2H-12.25(c).

Finally, we note that predicating the self-critical 

analysis privilege on complying with the SPAE reporting 

obligation could lead to a result that we doubt the Legislature 

intended. We have in mind cases where a hospital denied that a 

serious adverse event was preventable. In general, the 

proponent of an evidentiary privilege must establish the 

prerequisites of the privilege. See Horon Holding Corp. v. 

McKenzie, 341 N.J. Super. 117, 125 (App. Div. 2001) (applying 

attorney-client privilege). Thus, to assert the self-critical 
17 A-4342-15T1

analysis privilege, the hospital would have to prove a serious 

adverse result was not preventable if it did not report it. The 

proofs would likely overlap with those relevant to the alleged 

negligence in the underlying case. We doubt the Legislature 

contemplated that a court would need to conduct such a minitrial in which the burdens are reversed in order to recognize 

the self-critical analysis privilege. 

In sum, the trial court erred in predicating the privilege 

over a self-critical analysis on the hospital's compliance with 

its obligation to report a SPAE to regulators or the patient.

III.

We must still consider whether the trial court erred in (1) 

determining that Chilton violated its reporting obligation, and 

(2) compelling it to report to the Department and Brugaletta. 

The court predicated its order on its finding that Brugaletta 

suffered a SPAE. We conclude that the finding lacked support of 

sufficient evidence in the record. See Rova Farms Resort, Inc. 

v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We 

therefore reverse the trial court's order compelling Chilton to 

report.11 

 

11 Given our disposition, we need not address three additional 

questions that may be implicated by the court's order. First, 

we need not decide the standard of review of a hospital's 

determinations as to whether a SPAE has occurred and whether to 

(continued)
18 A-4342-15T1

We may presume for purposes of our analysis that Brugaletta 

suffered an "adverse event" consisting of the fasciitis of her 

right lower extremity, which was a "negative consequence of care 

that result[ed] in unintended injury or illness . . . ." See

N.J.S.A. 26:2H-12.25(a); N.J.A.C. 8:43E-10.3. We may also 

presume it was serious if she suffered a "loss of a body part 

. . . or loss of bodily function" for at least one week or at 

the time of her discharge. See N.J.S.A. 26:2H-12.25(a); 

N.J.A.C. 8:43E-10.3. 

But the trial court did not identify record evidence for 

the conclusion that this was a "preventable event" — that is, it 

"could have been anticipated and prepared against, but 

occur[red] because of an error or other system failure." See

 

(continued)

report it. Second, we do not address whether a plaintiff has a 

private right of action to compel a hospital to fulfill its 

reporting obligation, particularly as it relates to reporting to 

regulators. See R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer 

Ins. Co., 168 N.J. 255, 271, 272 (2001) (noting that we have 

"been reluctant to infer a statutory private right of action 

where the Legislature has not expressly provided for such 

action" and setting forth a test for ascertaining whether a 

private right of action is implied). In this regard, we note 

the Department is empowered to enforce the reporting requirement 

by imposing penalties up to $100,000 on non-compliant general 

hospitals. N.J.A.C. 8:43E-3.4(a)(14)(i). Third, we do not 

reach the issue whether, based on principles of primary 

jurisdiction, the agency, as opposed to the court, should decide 

in the first instance whether a reportable SPAE has occurred. 

See Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 187 

(App. Div. 2006); Muise v. GPU, Inc., 332 N.J. Super. 140, 158-

59 (App. Div. 2000). 
19 A-4342-15T1

N.J.S.A. 26:2H-12.25(a); N.J.A.C. 8:43E-10.3. We emphasize one 

of the three elements of a "preventable event" is the element of 

causation. Not only must the event be one that a hospital could 

have "anticipated and prepared against", and not only must there 

be "an error or other system failure", but the event must occur 

"because of" the error or system failure. N.J.S.A. 26:2H12.25(a); N.J.A.C. 8:43E-10.3. 

The evidence does not support a finding that the causation 

element was satisfied. The record clearly supports the trial 

judge's finding there was an error in Brugaletta's care. We may 

assume for argument's sake that the error could be "anticipated 

and prepared against." However, the trial court does not rely 

on an expert opinion to conclude that Brugaletta's serious 

adverse event occurred "because of" that error. Under the facts 

of this case, an expert opinion was essential. See Kelly v. 

Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997) ("[I]n 

general, a jury should not be allowed to speculate without aid 

of expert testimony in an area where laypersons could not be 

expected to have sufficient knowledge or experience." (internal 

quotation marks and citation omitted)). In its absence, the 

court's conclusion that Brugaletta suffered a SPAE was not 

supported by sufficient record evidence. 
20 A-4342-15T1

In sum, the trial court erred in compelling Chilton to: (1) 

disclose the redacted memorandum revealing its self-critical 

analysis, and (2) report an alleged SPAE to the Department and 

Brugaletta. 

Reversed.