Brugaletta version 2.0: Trella v. Bradish, MD (A-3039-18T3)
On October 8, 2019, the Appellate Division ruled that hospitals in medical malpractice actions can be required to produce a narrative statement identifying where, in the medical records, the facts of an “adverse event” are located even though the records are not lengthy and the facts of the event are evident and not buried in the records (so called Brugaletta Narrative named for the Supreme Court’s decision in Brugaletta v. Garcia, 234 N.J. 225 (2018).
Just last year, the New Jersey Supreme Court, in interpreting the New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, refused to order the release of an investigative report developed during self-critical analysis, even if redacted. See Brugaletta v. Garcia, 234 N.J. 225 (2018). But, the Supreme Court commented that the PSA does not immunize from discovery information otherwise discoverable, such as the facts within the medical record which constitute the “adverse event” reviewed by the Patient Safety Committee. The Supreme Court held that, while plaintiff was not entitled to any part of the PSA-privileged Incident Report, plaintiff was entitled to a narrative summary of the factual information of the adverse event contained within the approximately 4,500 pages of medical records.
In the several months since the Brugaletta decision, these Brugaletta Narratives have become the subject of considerable motion practice as plaintiffs and defendants cannot agree on when plaintiffs are entitled to them – in all cases involving an adverse event occurring at a hospital (as urged by plaintiffs) or only in cases with voluminous records of complex medical cases (defense position).
Recently, the Appellate Division clarified when Brugaletta Narratives identifying the facts of an adverse event in a hospital records will be required. In Trella v. Bradish, MD (A-3039-18T3), the Appellate Division affirmed a Law Division decision ordering the defendant Newton Medical Center to provide plaintiff with a written narrative of any “adverse incident” in the hospital records. Defendant appealed, arguing that the Law Division erred in requiring a narrative because, unlike in Brugaletta, plaintiff’s medical records were neither voluminous nor complex and that the facts describing the adverse event were not discretely buried therein.
The Appellate Division, in a two judge decision, affirmed the Law Division’s order that defendant provide a Brugaletta Narrative, reasoning that nothing precludes the Court from ordering defendant to identify the facts of the adverse event in a hospital record, irrespective of the length or complexity of the medical chart.
Based on the Appellate Division’s decision in Trella, Brugaletta Narratives will be a routine discovery request by plaintiffs in medical malpractice cases, applicable to all cases involving an adverse event occurring in a hospital. Given that the facts of an adverse event are not privileged, and the lack of dissent in Trella, we do not expect the Supreme Court will take up this issue.