Physician-Patient Relationship

Don’t turn back clock on peer-review confidentiality

Tanya Albert Henry , Contributing News Writer

For the sake of patient safety, a long-standing New Jersey law that allows physicians and others in health care to confidentially report and investigate adverse patient events needs to remain intact, physicians tell New Jersey’s highest court.

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Two plaintiffs, whose separate cases have been consolidated, are seeking documents from health care facilities that the New Jersey Patient Safety Act has traditionally protected. These are documents created so physicians and other health professionals can analyze what happened during the incidents and improve patient care.

In an amicus brief, the Litigation Center of the American Medical Association and State Medical Societies and the Medical Society of New Jersey are urging the state’s highest court to uphold an appellate court decision protecting the documents. Allowing the plaintiffs to have the privileged documents would go against the legislature’s intent when it enacted the law, they say.

“The result will be a substantial chilling effect on the investigative process and interference with the improvement of healthcare for the public at large,” says the physician organizations’ brief in the case, Keyworth v. Careone at Madison Avenue.

Trial courts in each case initially ruled that the plaintiffs could have the documents. The cases were then consolidated before the appellate court to review the question of whether Patient Safety Act investigative materials were absolutely privileged and protected from disclosure.

The appellate court said that the lower courts erred in their decisions and it ruled that the law does protect the documents the plaintiffs were seeking. The ruling concluded that “in each case, plaintiffs are free to engage in discovery of facts from non-privileged sources.”

The case now goes before the New Jersey Supreme Court.

The brief from the AMA and the Medical Society of New Jersey brief does not take a position on the underlying allegations in the case and instead focuses on why the appellate court decision is “in the best interest of patients and those who care for them.”

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.

Law intended to protect patients

At the state and national levels, lawmakers passed laws such as New Jersey’s Patient Safety Act because they recognized the importance of protecting physicians and health professionals who disclose information or are involved in peer review and self-critical analysis in an effort to improve patient safety.

“Notably, the legislature specifically found and declared that while health care facilities must be held accountable for preventable adverse events, punitive environments are not effective in promoting accountability and patient safety. It further indicated that fear of sanctions induces healthcare professionals and organizations to be silent about adverse patient events,” physician organizations’ brief explains.

New Jersey’s law, like others, was designed to encourage doctors and other professionals to disclose adverse medical outcomes and take part in root-cause analysis meetings that may result in process improvements to keep future patients safer than they otherwise would have been.

The law provides “for a nonpunitive, confidential environment in which health care facilities can review practices and report problems without fear of recrimination while simultaneously being health accountable,” the brief says. Taking that protection away and “allowing a plaintiff to obtain documents created as part of a self-critical analysis process, such as reports of the hospital investigative process, would expose information the legislature intended to protect from disclosure.”

“Participants in the process, including physicians, must be able to engaged in the process unfettered,” the brief says, noting that the appellate court decision should be upheld “to ensure thorough and candid discourse on issues regarding the quality of patient care, without fear of recrimination.”