NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1421-15T3

PATRICIA T. CONN, as Executrix

ad Prosequendum of the Estate

of David W. Conn, deceased, and

PATRICIA T. CONN, individually

and per quod,

Plaintiffs-Respondents,

v.

BABYLIN REBUSTILLO, an

individual, RACHAEL LOAHR,

an individual, and NEWTON

MEMORIAL HOSPITAL, a business

entity, a/k/a NEWTON MEDICAL

CENTER,

Defendants-Appellants.

________________________________________________________________

Argued April 12, 2016 – Decided

Before Judges Espinosa, Rothstadt and 

Currier.

On appeal from Superior Court of New Jersey, 

Law Division, Sussex County, Docket No. 

L-452-14.

Peter A. Marra argued the cause for 

appellants (Schenck, Price, Smith & King, 

LLP, attorneys; Mr. Marra and Sandra Calvert 

Nathans, on the brief).

Paul R. Garelick argued the cause for 

respondents (Lombardi & Lombardi, P.A., 

attorneys; Mr. Garelick, on the brief).

May 4, 2016

APPROVED FOR PUBLICATION

May 4, 2016

APPELLATE DIVISION
2 A-1421-15T3

The opinion of the court was delivered by

ESPINOSA, J.A.D.

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

-12.25, establishes 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 "selfcritical analysis" that might never be provided to the 

Department. In this interlocutory appeal, we review the 

statutory criteria and scope of the subsection (f) privilege and 

clarify the distinction between the thresholds for the 

application of the subsection (f) and subsection (g) privileges.

David W. Conn, the husband of plaintiff Patricia T. Conn, 

was a patient at defendant Newton Medical Center (NMC) when he 

fell from his hospital bed, suffered a "severe intracerebral 

hemorrhage" and subsequently died.1 As a result, NMC was 

 

1 Plaintiff brought this medical malpractice case against NMC, 

Babylin Rebustillo, R.N. and Rachel Loahr, a nursing assistant,

(continued)
3 A-1421-15T3

required to prepare a root cause analysis (RCA) of the event and 

file its report with the Department. During the course of 

discovery in this medical malpractice action, plaintiff filed a 

motion to compel discovery of the RCA, and defendants filed a 

cross-motion for a protective order. The trial judge granted 

plaintiff's motion to compel in part, requiring defendants to 

provide the "underlying facts" included in the RCA, and denied 

defendants' motions for a protective order and reconsideration. 

We granted defendants leave to appeal from that order and now 

reverse.

I.

In support of their motion for a protective order, 

defendants submitted a three-page certification from Diane 

Lawson, the hospital's insurance manager, which stated she was 

authorized to make the certification on behalf of NMC and 

provided that:

6. In the instant matter, a Root 

Cause Analysis Report relating to the 

plaintiff was prepared by a specified group 

of employees of NMC designated as the team 

involved in this event. The team included 

medical professionals of various disciplines 

with appropriate competencies to conduct the 

root cause analysis for this event. In 

addition, the team presented the root cause 

 

(continued)

(collectively defendants) individually and as executrix and 

administrator ad prosequendum of her husband's estate.
4 A-1421-15T3

analysis document to NMC's patient safety 

committee.

. . . .

8. As required under the Patient 

Safety Act and its regulations, NMC 

submitted the Root Cause Analysis to the New 

Jersey Department of Health and Senior 

Services.

9. This document was generated for 

the sole purpose of complying with the 

mandatory reporting requirements of the 

Patient Safety Act. This document was not 

generated for purposes of utilization review 

assessment or quality assurance assessment.

[(Emphasis added).]

The trial court found the RCA was "generated for the 

specific purpose of complying" with the mandatory reporting 

requirement and was filed with the Department. There is no 

evidence in the record that the Department rejected the RCA or 

found it deficient in any regard. Nonetheless, the trial court 

ordered disclosure of the "underlying facts" of the RCA. The 

order also compelled defendants "to provide any and all 

documents previously withheld on the basis that such documents 

were protected as a [RCA]."

In their appeal, defendants argue the trial court's 

interpretation of the PSA was erroneous. They contend the RCA 

was not discoverable because it was "prepared as part of NMC's 

self-critical analysis," N.J.S.A. 26:2H-12.25(g), and "for the 
5 A-1421-15T3

purposes of reporting the event to regulators." Plaintiff 

acknowledges that if the report prepared by NMC qualifies as one 

prepared and submitted in compliance with the PSA mandatory 

reporting requirement, it is protected by the absolute 

privilege. However, she contends Lawson's certification was 

inadequate to establish that defendants complied with PSA 

regulations. Plaintiff asserts that because the RCA and the 

process through which it was created did not satisfy the PSA, 

the trial court correctly applied the common law standard we 

found applicable to a peer review committee report in Christy v. 

Salem, 366 N.J. Super. 535 (App. Div. 2004). In short, 

plaintiff argues that the hospital must show it fully complied 

with all applicable regulations before the RCA received by the 

Department is protected by privilege.

II.

In reviewing trial court decisions related to matters of 

discovery, we apply an abuse of discretion standard. C.A. ex 

rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014); Pomerantz 

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). We 

"generally defer[] to a trial court's disposition of discovery 

matters unless the court has abused its discretion or its 

determination is based on a mistaken understanding of applicable 

law." Applegrad, supra, 219 N.J. at 459 (citation omitted). 
6 A-1421-15T3

When the question presented is a legal issue, such as the 

construction of a statute, our review is de novo. Kaye v. 

Rosefielde, 223 N.J. 218, 229 (2015). This is such a case. 

The trial court's statement of reasons reflects its 

reliance upon our decision in Christy,

2 a case in which we 

considered whether a peer review committee report prepared 

regarding a 2002 injury was discoverable. 366 N.J. Super. at 

541; see N.J.S.A. 26:2H-12.23. The document was created well 

before the effective date of the PSA and, clearly, was not 

submitted to the Department pursuant to subsections (c) or (e) 

of the PSA. We applied a common law standard, adopting a 

balancing test of the competing interests at issue — the 

"plaintiff's right to discover information concerning his care 

and treatment" for purposes of his litigation and the "public 

interest to improve the quality of care and help to ensure that 

inappropriate procedures, if found, are not used on future 

patients." Id. at 541. We ordered the disclosure of the 

"purely factual" contents of the peer review report, but 

determined that "evaluative and deliberative materials" within 

the report that contained the hospital's "opinions, analysis, 

and findings of fact" were not discoverable. Id. at 543-45.

 

2 The court also relied upon our decision in C.A. ex rel. 

Applegrad v. Bentolila, 428 N.J. Super. 115 (App. Div. 2012), 

which was reversed by the Supreme Court, 219 N.J. 449 (2014).
7 A-1421-15T3

The trial court's reliance upon Christy's common law 

standard was misplaced. The discovery issue here is governed by 

the provisions of the PSA. The questions presented concern the 

threshold for the application of the absolute privilege granted 

by N.J.S.A. 26:2H-12.25(f)3 and whether that privilege protects 

all of the RCA from disclosure.

In interpreting a statute, "our essential task is to 

understand and give effect to the intent of the Legislature." 

Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 263-64 (2008).

We turn first "to the plain language of the statute," In re 

Young, 202 N.J. 50, 63 (2010), which is the "clearest indication 

of a statute's meaning." G.S. v. Dep't of Human Servs., 157 

N.J. 161, 172 (1999). We seek further guidance only when "the 

Legislature's intent cannot be derived from the words that it 

has chosen." Pizzullo, supra, 196 N.J. at 264.

The explicit goal of the PSA was to improve the safety of 

patients by obtaining and analyzing information that will lead 

to the dissemination of effective practices and reduce systems 

failures. N.J.S.A. 26:2H-12.24(f).4 The Legislature recognized 

 

3 At oral argument, it was undisputed that the RCA was received 

by the Department. NMC also agreed that an absolute privilege 

would apply to the document as it was received by the Department 

pursuant to subsection (c).

4 The information so obtained is also used "to exercise 

oversight," with "primary emphasis on assuring effective 

(continued)
8 A-1421-15T3

it was "critical" to encourage disclosure by "creat[ing] a nonpunitive culture that focuses on improving processes rather than 

assigning blame." N.J.S.A. 26:2H-12.24(e). It sought to 

accomplish this goal "[b]y establishing an environment that both 

mandates the confidential disclosure of the most serious, 

preventable adverse events, and also encourages the voluntary, 

anonymous and confidential disclosure of less serious adverse 

events, as well as preventable events and near misses." 

N.J.S.A. 26:2H-12.24(f). To ensure the confidentiality of both 

the mandatory disclosures made pursuant to N.J.S.A. 26:2H12.25(c) and the voluntary disclosures that are "encouraged" by 

N.J.S.A. 26:2H-12.25(e),5 those disclosures are protected by an 

absolute privilege. N.J.S.A. 26:2H-12.25(f). 

 

(continued)

corrective action by the facility or health care professional." 

N.J.S.A. 26:2H-12.25(f). Use of the information for other 

purposes is limited by statute. Ibid.

5 N.J.S.A. 26:2H-12.25(e)(1) provides: 

A health care professional or other employee 

of a health care facility is encouraged to 

make anonymous reports to the 

department . . . in a form and manner 

established by the commissioner, regarding 

near-misses, preventable events, and adverse 

events that are otherwise not subject to 

mandatory reporting pursuant to subsection 

c. of this section.

[Emphasis added.]
9 A-1421-15T3

The mandatory reporting requirement is established in 

N.J.S.A. 26:2H-12.25(c), which states: "A health care facility 

shall report to the department . . . in a form and manner 

established by the commissioner, every serious preventable 

adverse event that occurs in that facility." The circumstances 

of David Conn's death clearly fall within the definition of a 

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

see N.J.A.C. 8:43E-10.6(g)(4) (stating serious preventable 

adverse events include "[p]atient . . . death . . . associated 

with a fall while in a health care facility"). 

The absolute privilege afforded to documents submitted to 

the Department pursuant to the mandatory requirement is 

established by N.J.S.A. 26:2H-12.25(f), which provides: 

Any documents, materials, or 

information received by the department . . . 

pursuant to the provisions of subsection[] 

c. . . . of this section concerning 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. . . .

[Emphasis added.]

See also N.J.A.C. 8:43E-10.9(a).

Although the report is to be "in a form and manner 

established by the commissioner," N.J.S.A. 26:2H-12.25(a) and 
10 A-1421-15T3

(e), receipt of the documents by the Department pursuant to the 

two reporting provisions is sufficient to trigger the absolute 

privilege as to all documents so received. The plain language 

of the statute does not condition the privilege upon the 

satisfaction of any other criteria. Further, the statute 

provides no rationale or standard for parsing the contents of 

the documents, allowing for some portions to be privileged and 

others not privileged. This straightforward, easily 

identifiable trigger and application of the privilege is 

consistent with the legislative goal of protecting the 

confidentiality of disclosures made to the department – whether 

mandated, voluntary or even anonymous — so that a body of 

knowledge may be created to improve the safety of patients. 

When the information sought to be protected is not 

submitted to the Department, the path to a privilege is 

different. See Applegrad, supra, 219 N.J. at 467. N.J.S.A.

26:2H-12.25(g) establishes the "self-critical analysis" 

privilege for internal documents that are the product of an 

"investigative process that may or may not lead to . . . 

reporting" to the Department. Applegrad, supra, 219 N.J. at 

467. Subsection (g) provides in pertinent 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 
11 A-1421-15T3

section concerning preventable events, nearmisses, 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:

 (1) subject to discovery or admissible 

as evidence or otherwise disclosed in any 

civil, criminal, or administrative action or 

proceeding . . . .

[Emphasis added.]

Thus, while subsection (f) shelters all documents that are 

"received by the department" from discovery, the privilege 

afforded to internal documents by subsection (g) only attaches 

if the contents are "developed . . . as part of a patient safety 

plan" that complies with the requirements set forth in N.J.S.A.

26:2H-12.25(b). Applegrad, supra, 219 N.J. at 469. The minimum 

requirements for the patient safety plan 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 
12 A-1421-15T3

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.

[N.J.S.A. 26:2H-12.25(b)(1)-(4).]

The document at issue in Applegrad was a memorandum 

prepared by a hospital administrator, before administrative 

regulations regarding the PSA were adopted, entitled "Director 

of Patient Safety Post-Incident Analysis." The document 

memorialized a "round table" discussion conducted as part of the 

hospital's investigation of the birth that gave rise to the 

medical malpractice claim. 219 N.J. at 452, 455. It was 

asserted that the document, along with five others, was 

privileged under subsection (g).6 Id. at 455. Therefore, the 

threshold issue was whether the documents were "developed . . . 

as part of a process of self-critical analysis conducted 

pursuant to subsection b." Id. at 467 (quoting N.J.S.A. 26:2H25(g)(1)).7 In contrast, the only pre-requisite for the 

 

6 Initially, the hospital sought to have the document reviewed 

pursuant to the balancing test set forth in Christy.

7 Because Applegrad arose after the passage of the PSA but 

before implementing regulations were adopted, the Court analyzed 

(continued)
13 A-1421-15T3

subsection (f) privilege is that the documents were "received 

by" the Department pursuant to either the mandatory reporting 

requirement followed here, subsection (c), or by the voluntary 

reporting provision, subsection (e). Ibid. Thus, the analysis 

conducted by the Court in Applegrad as to whether the hospital's 

procedure substantially complied with the procedures required by 

the PSA is unnecessary and inapplicable here. Id. at 473.

Our review of the plain language of the statute, which 

comports with the legislative goals articulated, leads us to 

conclude the privilege established by subsection (f) is not 

subject to review to determine whether the health care facility 

complied with the "process requirements" set forth in the PSA. 

See Applegrad, supra, 219 N.J. at 467-68 (citation omitted). 

The privilege afforded by N.J.S.A. 26:2H-12.25(f) is absolute, 

covering all "documents, materials, or information received by 

the department" pursuant to N.J.S.A. 26:28-12.25(c) or (e) and 

attaches to those items upon receipt by the Department. Because 

plaintiff retains the right to discover facts through 

conventional means of discovery, N.J.S.A. 26:2H-12.25(k), this 

 

(continued)

the discoverability of the document at issue pursuant to the 

terms of the PSA itself and did not impose the requirements 

included in the regulations. Applegrad, supra, 219 N.J. at 468-

69.
14 A-1421-15T3

conclusion does not substantially hamper the plaintiff's quest 

for pertinent factual information and preserves the environment 

established by the Legislature in which mandatory disclosures 

are kept confidential. N.J.S.A. 26:2H-12.24(f).

Reversed and remanded for further proceedings consistent 

with this opinion. We do not retain jurisdiction.