Nursing homes and other healthcare providers can’t be compelled to turn over internal investigative documents even in cases where substandard or unsafe patient care is alleged, an appeals court has ruled.

New Jersey’s Patient Safety Act was designed to reduce medical errors by promoting internal self-reporting and analysis of adverse events and near misses by healthcare facilities, the state Superior Court’s Appellate Division found. The ruling confirms that the entire internal investigatory process is privileged, “shielding a healthcare facility’s deliberations and determinations from discovery or admission into evidence.”

In a pair of consolidated cases, plaintiffs had argued that such materials from two separate Care One nursing homes should be made public, in part because one of the incidents was not reportable to authorities, and therefore not protected.

In a summary of the opinion posted online, the court noted that providers have a different path to protection when information does not have to be submitted to the Department of Health. But the court found state law establishes the self-critical analysis privilege and it applies to any document or information “developed by a healthcare facility as part of a process of self-critical analysis” conducted within the avenue the regulations set out.

Such information cannot be accessed by plaintiffs’ attorneys in civil cases or accessed by authorities in a civil, criminal or administrative proceeding. The ruling also noted that the trial court cannot compel the nursing home to turn over redacted versions of such information either.

“The decision serves as a full-throated confirmation from the Appellate Division that these privileges exist to allow our healthcare providers and facilities to further patient safety and care quality without the fear of retribution,” Hall Booth Smith attorney Sandra Cianflone told McKnight’s Long-Term Care News Wednesday.

Nursing homes in the crosshairs

Attempts to undermine privileged information and the processes that nursing homes depend on to improve patient safety and care quality have been growing, fueled by both aggressive civil attorneys and zealous prosecutors.

In 2022, two high-profile criminal cases against healthcare workers, one of them a nursing home nurse, were built upon information revealed through internal investigations intended to improve care.

At the time, attorney Matt Keris of Marshall Dennehey told McKnight’s such prosecutions could have a chilling effect on nursing: Fewer individuals might report errors or concerns based upon fear of criminal repercussions.

“Such reporting is critical to improving nursing care as it provides an opportunity to correct, conduct and, where warranted, institute a new protocol for staff to follow,” he said at the time. “We learn not only by doing a task correctly but by making mistakes that are correctable. These episodes provide teaching moments. We cannot afford to have healthcare professionals fear transparency. If that occurs, the quality of healthcare will decline.”

In both CareOne cases, plaintiffs attorneys had sought documentation generated by the company’s ongoing program of analysis meant to reduce the probability of adverse events, and to conduct analyses of near-misses and adverse events, particularly Serious Preventable Adverse Events.

The claims involved a fall and an alleged resident-upon-resident attack. An incident report in the first case was not submitted to the Department of Health, while the second was reported to both the Department of Health and the police.

CareOne did not respond to McKnight’s request for comment on the ruling by deadline Wednesday.

Widespread implications

Providers in all states need to ensure that their processes will keep such investigative materials private by adhering closely to any state requirements. 

Documents created outside the self-critical analysis process are still subject to discovery, noted the three-judge panel of the New Jersey court. The opinion issued by Judge Richard Geiger also held that plaintiffs’ still have the right to “discover facts through conventional means of discovery ‘if obtained from any source or context.’ “

“This decision should serve providers and facilities with a reminder that the privilege exists only if they are in statutory compliance,” Cianflone said. “Perhaps a ‘full stop’ is needed to have counsel and risk management teams assess their current processes to ensure complete compliance in the future.”