TENDERED.) CHIEF JUSTICE RABNER: GOOD MORNING, COUNSEL AND
WELCOME. MR. BRITCHER, PLEASE. E. DREW
BRITCHER: MAY IT PLEASE THE COURT, CHIEF JUSTICE RABNER, ASSOCIATE JUSTICES, LET
ME BEGIN BY ASKING IF I COULD KINDLY RESERVE THREE MINUTES OF MY TIME FOR
REBUTTAL, SHOULD IT BECOME NECESSARY. THE COURT: THAT'S FINE.
E. DREW BRITCHER: JUSTICE ES, NEARLY 30 YEARS AGO, I STOOD
IN THIS POSITION AND ARGUED MY FIRST CASE AND IT WAS THE STAGLY AN KNOW MATTER.
THIS COURT IN ITS DECISION STATED, LET'S TRY AND BAR THE
PARTICULAR WITNESSES I SOUGHT TO BAR IN THAT CASE WOULD BE TO UNDERMINE THE ULTIMATE
OBJECT ZEKT I HAVE OF A TRIAL, THE DETERMINATION OF THE TRUTH.
18 YEARS AGO I HAD THE PRIVILEGE AND HONOR TO WORK WITH SENATOR VITALLY OTHER
MEMBERS OF THE LEGISLATURE AND ALSO THE COMMISSIONER OF HEALTH, VICTIM KIN
LAZY IN ORDER TO PUT TOGETHER THE VERY BILL WE'RE TALKING ABOUT AND TO ULTIMATE
LY GO TO COUNSEL TABLE AN TESTIFY ON THAT BILL AFTER HAVING BEEN CONVINCED THAT
WE HAD DRAWN THE APPROPRIATE BALANCE BETWEEN THE DESIRE TO PROTECT PEOPLE
IN THE PUBLIC IN THE WEAK OF THE CULL LEN KILGS AND AT THE SAME TIME PRESERVE THE
OPPORTUNITY FOR PATIENTS TO KNOW THE FACTS OF THEIR PARTICULAR MATTERS.
MADELINE KEYWORTH IN NOVEMBER OF 2016 SUFFERED TWO FALLS. AFTER THOSE TWO FALLS
AN INVESTIGATION TOOK PLACE. I UNDERTOOK IN THAT MATTER TO TAKE DEPOSITIONS,
ROUTINELY WITNESSES TOLD ME THAT THEY HAD NO REAL RECOLLECTION AND WHEN I WOULD
INQUIRE ABOUT WHETHER THERE WAS SOME STATEMENT THEY HAD GIVEN AT THE TIME
THEY WOULD INDICATE THAT THEY BELIEVE THEY DID AND I WOULD INQUIRE OF COUNSEL KINDLY
TO SHOW THEM WHATEVER STATEMENT THEY GAVE TO REFRESH THEIR RECOLLECTION AND THAT
WAS DENIED BECAUSE THE DOCUMENTS HAD ONLY, ONLY BEEN USED IN THE PROCESS OF THE
PATIENT'S SAFETY ANALYSIS. ONE OF THE THINGS THE PATIENT SAFETY
ACT SAID WAS IT WAS NOT REPLACING ANYTHING THAT ALREADY EXISTED. AT THE TIME
THE PATIENT SAFETY ACT HAD BEEN ADOPTED, CONTINUOUS QUALITY IMPROVEMENT, AS WELL AS
A REQUIREMENT THAT A MEDICAL RECORD FULLY DOCUMENT ANY INCIDENT INVOLVING
A PATIENT WITHIN THEIR RECORD EVER EXISTED. IT WAS NEVER REPLACED.
YET IN THIS INSTANCE, A WITNESS GETS TO SAY I DON'T REMEMBER, AN NO ONE WILL
REFRESH THEIR RECOLLECTION. NOW WE GET TO BENDER.
IN BENDER, I MUST OBVIOUSLY AS THE COURT IS AWARE BE CAREFUL WHAT I SAY AND NOT
SAY BECAUSE WE HAVE A CONFIDENTIAL APRIL PEND ADDITION IN THIS CASE SO I WILL
STILL STICK TO ONLY THINGS THAT ARE OUTSIDE OF THAT. DESIGN
BENDER IN JUNE OF 2019 HAD A PHONE CALL AND IT'S PART OF HER RECORD TO HER DAUGHTER
BEGGING HER TO COME TO HARMONY VILLAGE BECAUSE A FELLOW RESIDENT HAD ATTACKED
HER MENT. THIS TIME AS OPPOSED TO SEEKING DOCUMENTS AFTER
THE DEPOSITIONS I UNDERTOOK TO FILE A MOTION TO SEEK TO HAVE AN IN CAMERA REVIEW
CONDUCTED. I AM GOING TO STOP HERE TO SAY THE FIRST THING I
NEED TO DO IS TALK ABOUT IN THE BACKDROP OF BERG GO LET TA THE APPROPRIATE PROCESS
FOR A COURT TO DETERMINE WHETHER OR NOT THERE IS ANYTHING WE SHOULD RECEIVE.
I SHOULD START BY SAYING THE ROOT CAUSE ANALYSIS THAT IS CONDUCTED
BY A HOSPITAL OR NURSING HOME IN AND OF ITSELF IS NOT SOMETHING THAT WE SHOULD
RECEIVE. THAT WAS WHAT WAS SUPPOSED TO BE PROTECTED UPD THE PATIENT SAFETY
ACT. THE IDEA WAS THAT HEALTHCARE PROVIDERS SHOULD BE ABLE
TO GATHER, DISCUSS AN ERROR AND DETERMINE THE REASON FOR THE FAULT AND SHARE THAT
INFORMATION CENTRALLY SO THAT IT COULD POTENTIALLY BE USED TO GO BACK OUT
TO OTHER INSTITUTIONS AND TO PROTECT THE NEXT SET OF PATIENTS. AT
THE TIME NOTHING WAS INTENDED IN TERMS OF THE FACTS COULD SOMEHOW EXIST ONLY IN
THE PATIENT SAFETY ACT ANALYSIS. IN THE KEYWORTH MATTER, MY
APPLICATION REQUESTED THE COURT TAKE THE MATTERS IN CAMERA, THEY DID AND
THE JUDGE SIZ SEE DETERMINED THAT THE DOCUMENTS WERE NOT PRIVILEGED. AT THAT TIME,
MOTIONS EVEN ZOOED. IN BENDER, I MADE A SIMILAR APPLICATION EARLY ON IN THE
PROCESS BECAUSE I THOUGHT IT NOT SENSIBLE TO TAKE DEPOSITIONS WITHOUT KNOWING WHAT
MIGHT POSSIBLY BE IN THE DOCUMENTS THAT WAS NOT BE REVEALED IN MY CLIENT'S
CHART AND THAT WAS JUDGE WILL SON UNDERTOOK TO REVIEW THE DOCUMENTS IN CAMERA AND
THEN TURNED AROUND AND DETERMINED THAT THEY WERE NOT PRIVILEGED AND SENT THEM
TO MY OFFICE WITH A COVER LETTER COPYING MR. COCCA'S OFFICE SAYING I I HAVE
DETERMINED THEY ARE NOT PRIVILEGED, HERE THEY ARE. FROM A PROCESS
STANDPOINT WHAT I AM HERE TO ARGUE TO THE COURT IS THE COURT NEEDS TO GUIDANCE
TO THE TRIAL COURT THE GOAL OF RUG LET TA. AND THAT GOAL IS
TO SEE TO IT THAT IF THERE ARE FACTS NOT IN THE PATIENT'S CHART OR OTHERWISE AS
IN RUG LET TA BURIED IN THE PATIENT'S CHART THAT THERE IS A MEANS OF SEEING
TO IT THAT THE PLAINTIFF AND THE COUNSEL ARE AWARE OF THE FACTS. AND I REPEAT,
FACTS. IN THAT REGARD, THE BRUGALETTA LET TA EFFORT WOULD HAVE
WORKED IF BOTH JUDGES HAVE SIMPLY DONE WHAT I HAVE DONE IN OTHER MATTERS SINCE
BRUGALETTA LET TA WHICH WAS THE JUDGE TOOK THEM IN CAMERA, DETERMINED THERE WERE
FACTS THAT THEY BELIEVE NEEDED TO BE REVEALED, HIGHLIGHTED THE FACTS IN
THE DOCUMENTS, SENT TO THE COUNSEL AND SAID EITHER SHOW ME WHERE THESE ARE
OTHERWISE AVAILABLE OR PROVIDE A NARRATIVE THAT CONTAINS THESE FACTS THAT WILL BE
PROVIDED TO PLAINTIFF'S COUNSEL AND THEN UPON RECEIVING THAT NARRATIVE AND
DETERMINING, IT WAS, IN FACT APPROPRIATE, SENT THE NARRATIVE ON TO MY OFFICE
AND THE MATTERS THEN WENT FORWARD AND PROCEEDED. HERE, I WOULD CONCEDE
AT THE OUTSET. CERTAINLY, I MUST CONCEDE AT THE OUTSAID THE MECHANISM BY
WHICH JUDGE WILSON SENT THOSE DOCUMENTS TO MY OFFICE WAS NOT WHAT I AM HERE TO
ADVOCATE TO OCCUR. I AM NOT ADVOCATING THAT WE SHOULD JUST
WHOLESALE LOOK AT THE DOCUMENTS AND IF THEY ARE FACTUAL, SEND THEM.
THE MOST EFFICIENT WAY IS TO PROVIDE THE STATEMENT, I THINK THAT WOULD BE THE
APPROPRIATE START CLOP IF CLOP. IF THAT WOULD UNFORTUNATELY
CREATE A SITUATION WHERE WE WOULD OVERLAP OPINION WITH FACT, THAT NEEDS
TO BE CARVED OUT AND THAT BRINGS ME TO WHAT IS THE KEY OF THIS LEGISLATION THAT
WE DISCUSSED IN BOTH C.A. AND IN BRUGALETTA, THAT THIS IS THE ONE AND ONLY
PIECE OF LEGISLATION THAT I'M AWARE OF EVER PASSED BY THE NEW JERSEY LEGISLATURE,
WHERE, WITHIN THE BILL, THERE IS A CASE CITED WITH APPROVAL. MANY
A BILL HAS BEEN PASSED OVER THE YEARS WHERE SOMETHING HAS TAKEN PLACE IN THE COURTS
AN WHERE THE LEGISLATURE HAS CHOSEN TO TRY TO CHANGE THAT AND WHERE THEY
CITED A CASE WITH. HERE THE CHRISTY CASE WAS CITED THE APPROVAL, THE CHRISTY CASE
ESSENTIAL SAID THE ROOT CAUSE ANALYSIS IS PROCEED TEKD, THE FACTS ARE NOT, THE
COURTS SHOULD UNDERTAKE TO DETERMINE AND THAT'S ON THE KEY IN THAT MATTER WHEN
IT WAS ULTIMATELY HEARD BY THE ASSEMBLY HEALTH COMMITTEE, THERE WERE FOUR PEOPLE
WHO WENT TO THAT TEST YA 'ALL TABLE, THE SPONSOR, SENATOR VIT TALLY, THE
COMMISSIONER OF HEALTH, CLIFTON LAS SEE, MYSELF ON BEHALF OF THE NEW JERSEY
ASSOCIATION OF JUSTICE AND BETS SEE RESIGN ON BEHALF OF THE HOSPITAL ASSOCIATION.
MS. RESIGN AND I BOTH TESTIFIED AT THAT TIME THAT THIS WAS
A BILL THAT DESERVED PASSAGE BECAUSE IT WOULD PROTECT FUTURE GENERATIONS OF OUR
PEOPLE AND HAD BY VIRTUE OF THAT TRAUN THE APPROPRIATE BALANCE. IN
FACT, IT WAS SHE, MS. RESIGN, R Y A N, WHO TESTIFIED, THERE HAS BEEN A KEY AMENDMENT
SINCE THIS CAME OVER FROM THE SENATE AND THAT IS THE CHRISTY CASE BECAUSE
WHAT IT DOES IS PRESERVE THE ROOT CAUSE ANALYSIS PRIVILEGE AND THAT IS IMPORTANT
TO THE PROVIDER COMMITTEE. SHE WAS RIGHT. IT WAS ALSO IMPORTANT TO THE PATIENT
AN CONSUMER COMMUNITY. THAT IS THE BALANCE THAT THIS COURT, I THINK
NOW LOOKING AT THESE TWO CASES NEEDS TO TRY AND NOT ONLY DETERMINE THE
BALANCE, BUT PROVIDE THE TRIAL COURT WITH THE NECESSARY GUIDANCE OF HOW TO HANDLE
THIS AS WE GO FORWARD. I CAN ACTUALLY SAY THAT AT THIS MOMENT
I HAVE A DESIRE FOR MY QUESTIONS BECAUSE THIS IS THE MOST SILENT YOU HAVE
BEEN IN MY NOW 30 YEARS OF COMING HERE. THE COURT: COULD YOU PLEASE
ADDRESS THE PARTICULAR LANGUAGE OF THE STATUTE, 12-25 G WHICH USES THE PHRASE
ANY DOCUMENTS, MATERIALS OR INFORMATION, DOT, DOT, DOT SHALL NOT BE DISCOVERED.
E. DREW BRITCHER: CORRECT. IT INDICATES THAT
THEY SHALL NOT BE DISCOVERABLE OR USED IN LITIGATION AND IT WAS LARGELY DRAFTED
AT THE TIME IN ORDER TO PROTECT THE INDIVIDUALS WHO MIGHT MAKE AN ANONYMOUS REPORT
OF A NEAR MISS OUT OF A CONCERN FOR POTENTIAL ACTIONS COMBENS AGAINST THEM AS
WELL AS IT BEING THAT THE DOCUMENTS SHOULD NOT THEMSELVES SOMETHING THAT
BECOME MY LITIGATION'S ROAD MAK. I DO NOT NEED THE ROAD MAP, BUT I NEED THE FACTS.
THERE ARE FACTS THAT EXIST IN THESE TWO MATTERS, ONE OF WHICH
I DON'T KNOW THE NATURE OF FULLY OTHER THAN I KNOW I HAVE GOT WITNESSES WHO SAY
THEY HAVE NO MEMORY, BUT THEY CLEARLY GAVE STATEMENTS AN IN THE OTHER I
PROBABLY SHOULDN'T KNOW THINGS I KNOW BUT ARE FACTS THAT ARE CLEARLY NOT IN MY
CLIENT'S MEDICAL RECORD. CLEARLY NOT IN MY CLIENT'S MEDICAL RECORD.
WHILE THAT PROVISION INDICATES THE DOCUMENTS THEMSELVES, THE MATERIALS THEMSELVES
AND THAT'S WHY I FOCUSED BEFORE THAT I DON'T NEED THE STATEMENT NECESSARILY
TO ME, BUT IF THERE ARE FACTS IN THAT STATEMENT THAT AREN'T IN MY CLIENT'S MEDICAL
RECORD, THAT ARE IMPORTANT, MY CLIENT SHOULD ALWAYS HAVE A RIGHT TO THE
FACTS. JUSTICE WAINER APTER: THERE ARE WITNESS STATEMENTS
MADE NOT PURSUANT ONLY TO THE PSA BUT ALSO TO MANY FEDERAL REQUIREMENTS AND OTHER
STATE REQUIREMENTS, ETC., YOU ARE STILL SAYING YOU DON'T GET THOSE WITNESS
STATEMENTS AT ALL? E. DREW BRITCHER: THE PROBLEM THAT HAS
OCCURRED IS THAT OVER TIME I HAVE COME TO SEE THAT ALL THOSE OTHER AVENUES HAVE
ALL BEEN COMBINED INTO WHAT THEY DO IN THE PATIENT'S SAFETY. SO,
IN OTHER WORDS, AND I HAVE TO GO BACK THIS WAY, IF WE GO BACK TO AM GRAD, WE HAVE
A SEVEN-DAY HEARING. MR. LEWIN AND I PARTICIPATED IN IT IN ORDER TO DEVELOP
THE RECORD. IN THAT PARTICULAR MATTER TER JUDGE REDDEN HEARD FROM US AN WE BROUGHT
WITNESSES FROM VALLEY HOSPITAL AN WHAT WE LEARNED WAS THEY WERE ESSENTIALLY NO
LONGER CARRYING OUT CONTINUOUS QUALITY IMPROVEMENT MEETINGS. THEY WERE
NOT LONGER CARRYING OUT SEPARATE MATTERS. INCIDENT REPORTS WERE NO LONGER BEING
DONE AN PUT IN PATIENT'S CHARTS. THEY WERE ONLY BEING TON AS PART OF THE
PATIENT SAFETY. SO WHAT WAS HAPPENING AND HAS BEEN HAPPENING IS
THAT ESSENTIALLY IT'S KIND OF ALONG THE LINES OF AN SDEPT CURSE, NOBODY TALKS AND
EVERYBODY GOES IN THE ROOM AND THEN THEY TALK ABOUT IT ONLY IN THE ROOM TO SEE
TO IT THAT THE INFORMATION MIGHT OTHERWISE HAVE MADE IT TO THE CHART NEVER
MAKES IT TO THE CHART. JUSTICE PATTERSON: ISN'T THE OPPOSITE IN
YOUR CASE IN THAT THERE MAY BE COMPLIANCE WITH SOME OF THE FEDERAL REQUIREMENTS,
BUT IT DOES NOT COMPLY WITH THE PARTICULAR MATTERS IN PSA. E. DREW
BRITCHER: THERE IS NO DOUBT IN THIS CASE BECAUSE YOU HAVE AN ASSISTED LIVING FACILITY,
IN SOME WAYS WITH NURSING HOMES AN THEY OPERATE WITH CERTAIN FEDERAL
REGULATIONS THAT ARE NOT THE SAME IN HOSPITALS AND I WOULD TAKE ONE MOMENT, YOUR
HONOR, JUST TO SAY THIS BILL IS CLEARLY WHEN IT WAS BEING NEGOTIATED THOUGHT
OF AS A HOSPITAL BILL, ALTHOUGH IT CLEARLY DOES APPLY TO THESE OTHERS SO I WOULD
SAY IN THESE OTHER INSTANCES, ONE WOULD ARGUE IF THOSE WERE DONE PURELY IN
SEPARATE INSTANCES, IN OTHER WORDS, DO WE HAVE PART B HERE, PATIENT SAFETY OVER
HERE, AND THE DOCUMENTS WERE CREATED IN THIS INSTANCE, WITH THE THOUGHT BEING WE
SHOULD GET THEM AND OVER HERE WE DON'T GET THEM, OKAY. THAT'S
NOT WHAT HAPPENS. WE DO THEM ALL AS ONE. JUSTICE WAINER APTER:
DOESN'T THAT VIOLATE THE DOH REGULATION THAT SAYS THE PATIENT OR RESIDENT
SAFETY SUBCOMMITTEE SHALL NOT CONSTITUTE A SUBCOMMITTEE OF ANY COMMITTEE WITHIN
A HEALTHCARE SYSTEM OR OTHER SYSTEM WHICH SEEMS TO BE SAYING THE PSA COMMITTEE
HAS TO BE TOTALLY SEPARATE AN APART FROM ANY OTHER COMMIT, EE YOU CAN'T
CALL THEM YOUR COFFEE COMMITTEE AND YOUR CAULK COMMITTEE AN ANY COMMITTEE YOU MIGHT
HAVE. E. DREW BRITCHER: IT DOES VIOLATE IT BUT I DON'T SEE
THE COMPLIANCE OCCURRING. SINCE THE COURT NEEDS TO ADDRESS THIS HERE
ON THE BROAD SPECTRUM, ON THE HOSPITAL LEVEL, WE MUCH MORE OFTEN DO SEE
A SEPARATION BETWEEN THE PATIENT SAFETY COMMITTEE AND OTHER COMMITTEES.
JUSTICE PATTERSON: I WAS GOING TO ASK YOU ABOUT THAT BECAUSE AS YOU KNOW
I WROTE C.A. AND I HAVE NOT HAD ANOTHER C E R T THAT I CAN RECALL BUBBLING UP IN
THE HOSPITAL WORLD. MAYBE I MISSED IT IT, BUT I CERTAINLY CAN'T RECALL
ONE. IN GENERAL, DO YOU SEE COMPLIANCE IN THE HOSPITAL SETTING
WITH THE REQUIREMENT TO HAVE ALL OF THE BELLS AND WILL SELLS FOR LACK OF A BETTER
TERM OF THE PSA IN THAT SETTING. WHIS SELLS. E. DREW BRITCHER:
I DO SEE DISTINCT PSA COMMITTEES, I DON'T NECESSARILY SEE COMPLIANCE WITH THE
SEPARATION. BY THAT I MEAN, FOR EXAMPLE, I ROUTINELY GET FROM HOSPITAL COUNSEL
THE REFUSAL TO PROVIDE AN INCIDENT REPORT, TAKING THE POSITION THE ONLY INCIDENT
REPORT THAT EX ISS IS THE ONE THAT WAS DONE AS PART OF THE PATIENT SAFETY
COMMITTEE'S WORK AND THAT NO OTHER STINT REPORT EXISTSES, NO OTHER STATEMENT EXISTS
SO THERE IS NOTHING SEPARATE FOR THEM POTENTIALLY TO PRODUCE.
JUSTICE PATTERSON: IS IT YOUR POSITION THAT THE TWO COMMITTEES HAVE TO BE
DISTINCT ENTITIES EVEN IF THE SAME PEOPLE ARE INVOLVED IN BOTH CASES?
E. DREW BRITCHER: I WOULD START BY SAYING THERE ARE PROVISIONS IN THE PATIENT
SAFETY REGULATIONS THAT SET FORTH WHO WOULD BE ON THE COMMITTEE AND YOU
WOULD NOT NATURALLY HAVE THE SAME PEOPLE ON BOTH. THERE WOULD BE SOME OVERLAP.
JUSTICE PATTERSON: YOU'RE NOT SUGGESTING THERE HAS TO BE
A COMPLETE LACK OF IDENTITY OF THE PEOPLE INVOLVED IN BOTH PROCESSES.
E. DREW BRITCHER: I AM NOT. AGAIN IT REALLY COMES DOWN TO THE FACT VER E SUS
ANALYSIS ASPECT. JUSTICE PATTERSON: LET'S STAY FOR THE MOMENT.
E. DREW BRITCHER: SURE. JUSTICE PATTERSON:
WITH THE ISSUE OF PROCESS BECAUSE I THINK TO THE EXTENT THAT THIS COURT CAN
PROVIDE SOME GUIDANCE ON THAT, IT'S HELPFUL. IS IT YOUR CONTENTION
THAT, AGAIN, LET'S FOCUS ON HOSPITALS FOR A MOMENT AND THEN MOVE TO THIS SETTING
HERE, IS IT YOUR CONTENTION HERE THAT IN THE HOSPITAL SETTING THERE NEED TO BE
PARALLEL PROCESSES THAT SEPARATELY COMPLY WITH THE COFFEE REQUIREMENTS AND THE
PSA. E. DREW BRITCHER: QUALIFY FEE REQUIREMENTS OR IN THIS
INSTANCE THERE ARE REGULAR RERMENTS THAT HAVE NEVER BEEN TAKEN OFF OUR BOOKS FOR
CONTINUOUS QUALITY IMPROVEMENT COMMITTEES. FOR EXAMPLE, WE HAVE UTILIZATION
REVIEW WHICH I GENERALLY DO SEE STILL GETS DONE BUT IT HAS GOT SO LITTLE INFORMATION
IN IT THAT IT DOESN'T NECESSARILY PROVIDE SOME OF THE DATA WE'RE TALKING
ABOUT. JUSTICE PATTERSON: THAT'S AN ESTATE REGULATION.
E. DREW BRITCHER: STATE REGULATION. JUSTICE PATTERSON: THAT
REMAINS IN EFFECT EVEN THOUGH THE PSA HAS CHANGED HOW THIS WAS ALL DONE.
E. DREW BRITCHER: WHEN THE PSA WAS ADOPTED, NONE OF THE PRIOR REGULATIONS
WERE NEVER KNOCKED OUT. THEY WERE NEVER REVOKED, ETC. THE PSA CAME IN. T IT
WAS SUPPOSED TO BE A SUPPLEMENT BECAUSE THE IDEA WAS, AND I HAVE TO PUT
THIS IN THE CONTEXT OF THE CULL LEN KILGS. THE WHOLE IDEA WAS HERE IS THIS NURSE
WHO HAS BEEN PASSED FROM HOSPITAL TO HOSPITAL AND THEY HAVE THESE
MYSTERIOUS DEATHS OCCURRING AND PEOPLE HAVE THEIR SUSPICIONS, BUT NOBODY SPOKE UP
AN AS A RESULT MOOR PEOPLE DIED AND WE DON'T EVER WANT TO SEE THAT HAPPEN
AGAIN SO THEREFORE WE WANT TO PROVIDE A BASIS UPON WHICH PEOPLE CAN REPORT THESE
THINGS. JUSTICE PATTERSON: I AM JUST TRYING TO UNDERSTAND
THE TECHNICALITIES OF IT. I AM TRYING TO GET A PICTURE OF THE WHOLE STATUTORY
AND REGULATORY FRAMEWORK HERE. THERE IS THE PSA. THERE ARE
THE REGULARS THAT WERE NOT IN EFFECT AT THE TIME OF THE C.A. INCIDENT WHICH
LATER BECAME EFFECTIVE WHICH WERE DISCUSSED THIS C.A., YOU'RE SAYING THERE ARE
ESSENTIALLY SOME OLD REGULATIONS STILL IN NEW JERSEY THAT ALSO NEED TO BE
COMPLIED WITH? E. DREW BRITCHER: YES. FOR EXAMPLE -- GIVE
ME ONE SECOND. I WILL GIVE YOU ONE OF THEM. LET'S SEE, 262 H 12.5
IN THE DEFINITIONS OF THE PATIENT SAFETY, THERE ARE COMPONENTS THAT REFLECT UPON
THAT ASPECT ABOUT THE NONREPLACEMENT OF THE COMMITTEES AND THEN OF THE OLDER IT IS
N J A C, 8:43 G-15.2, WHICH HAS TO DO WITH HOSPITAL MEDICAL RECORDS.
JUSTICE WAINER APTER: ARE YOU REFERRING TO 26:2 H 12.5 B WHERE IT SAYS THE PROVISIONS
OF THIS SECTION SHALL NOT BE CONSTRUED TO ELIMINATE A HOSPITAL'S, TO HAVE
A CONTINUOUS QUALITY IMPROVEMENT PROGRAM. E. DREW BRITCHER:
I AM. I AM REFERRING TO THAT PART AND THEN I AM REFERRING TO THE PART THAT
N.J.A.C. 843 G 15.2 SUBSECTION E SAYS THE FOLLOWING. ANY ADVERSE
EVENT, INCLUDING PATIENT INJURIES SHALL BE DOCUMENTED IN THE PATIENT'S MEDICAL
RECORD; THAT'S THE PART THAT WE OFTEN DON'T SEE. THERE WAS -- IF YOU WERE
TO LOOK IN THE BENDER MATTER AT WHAT THE MEDICAL RECORD SHOWS, NOTHING HAPPENED
TO DESIGN BENDER DINE BENDER. JUSTICE PATTERSON: LET'S START
WITH THE OVERALL PIKT. THEN YOU HAVE THE FEDERAL REGULATIONS WHICH APPLY
TO HOSPITALS WHICH ARE FEDERAL STATUTES AN REGULATIONS, QUALIFY FEE AND YOU NEED
A DIFFERENT, A DIFFERENT COMMITTEE FOR THAT. IS THAT THE ENTIRE
REGULATORY PIKT TO HOSPITALS IN THE PIKT IN THIS REGARD WITH REGARD TO HOSPITAL
ISSUES. E. DREW BRITCHER: WE STILL HAVE A REGULATION THAT
REQUIRES THEM TO DO CONTINUOUS QUALITY IMPROVEMENT INDEPENDENTLY OF THE PSA WHICH
THAT WOULD BE THE ONE THAT I KIND OF WOULD SUGGEST THAT IN THE HEARING,
IN PREPARATION FOR C.A. THAT THERE WAS A CONCESSION THAT THEY WERE NO LONGER REALLY
DOING THE TWO SEPARATE COMPONENTS. JUSTICE WAINER APTER:
BUT THAT WOULD VIOLATE THE STAT ACTUALITY WHERE IT SPECIFICALLY SAYS THE
PROVISIONS OF THIS SUBSECTION SHALL NOT BE CONSTRUED TO ELIMINATE OR LESSEN A
HOSPITAL'S REGULATION TO HAVE A CONTINUOUS QUALITY IMPROVEMENT PROGRAM.
E. DREW BRITCHER: AGREED, AND YET I HAVE REQUESTED IN VARIOUS CASES DOCUMENTS
IN THAT REGARD AND ALL I GET IS THERE IS NOTHING THERE BECAUSE EVERYTHING WAS
DONE UNDER THE PSA. JUSTICE WAINER APTER: THERE IS AN INCENTIVE
FOR A HOSPITAL OR ANY HEALTHCARE ENTITY TO SAY EVERYTHING IS DONE UNDER
THE PSA BECAUSE THE PSA IS THE ONLY ONE THAT HAS THIS ABSOLUTE PRIVILEGE, RIGHT.
E. DREW BRITCHER: YES. JUSTICE WAINER APTER:
AND THE PSA ITSELF SAYS AND YOU STILL HAVE ALL THESE OTHER OBLIGATIONS THAT STILL
HAVE NOTHING TO DO WITH THE PSA. E. DREW BRITCHER: YES.
JUSTICE WAINER APTER: SO EVEN IF THERE WOULD BE AN INCENTIVE FOR A HEALTHCARE
TO FACILITY TO SAY EVERYTHING IS DONE THROUGH THE PSA, SO IT CAN GET THE
PRIVILEGE, THE PSA ITSELF IS TRYING TO COUNTERACT THAT SAYING NO, NO, NOT EVERYTHING
IS DONE WITH THE PSA YOU HAVE LOTS OF OTHER LEGAL OBLIGATIONS STILL IN THIS
STATUTE AN YOU STILL MUST MEET THEM. E. DREW BRITCHER: YES AND THAT
MIRRORS THE TESTIMONY THAT COMMISSIONER LAS SEE GAVE NOT THE FINAL HEARING
HERE BUT IN THE OTHER HEARINGS WHERE HE SAID YOU'LL STILL HAVE EVERYTHING THAT
ALREADY EXISTED. THIS IS A NEW AND ADDED OBLIGATIONS TO THE HOSPITALS AND THE
NURSING HOMES THAT WOULD MAKE IT SAFER. JUSTICE MICHAEL NORIEGA:
JUST TO FOLLOW UP ON THAT, IS IT YOUR EXPERIENCE THAT THERE IS A LACK OF
COMPLIANCE GENERALLY WITH ALL OF THOSE COMPONENTS. E. DREW BRITCHER:
YES, I GENERALLY FIND THAT THEY SAY THERE IS A PATIENT SAFETY COMMITTEE AND
PARNT SAFETY INVESTIGATION AND THAT THAT'S IT. JUSTICE MICHAEL NORIEGA:
IS THE OUTLINE YOU GAVE US IS THE PROCESS YOU WOULD LIKE THE COURT TO ENDEAVOR
TO CREATE MEANT TO WORK WITHIN THIS UNIVERSE OF CONSISTENT NONCOMPLIANCE?
E. DREW BRITCHER: I WOULD SAY IT'S WORKING WITHIN IT AN AT THE SAME TIME
KIND OF CORRECTING IT A LITTLE BIT. JUSTICE MICHAEL NORIEGA:
AND THAT'S MY FINAL POINT. IT'S A LITTLE BIT. IT DOESN'T GET ALL THE WAY
THERE BECAUSE IT'S NOT ASKING FOR STRICT INTERPRETATION OF THE STATUTE.
E. DREW BRITCHER: I WOULD SAY TO YOU THE MOST IMPORTANT XHOENT HERE IS WHAT
I INDICATED ABOUT FACTUAL IDENTIFICATION. IN BRUGALETTA WHEN
THIS COURT LOOKED A LETTER THAT AFTER C.A., YOU KNOW, YOU HAD A PARTICULAR
REFERENCE AN A CHART THAT THE TRIAL JUDGE THOUGHT IT WAS IMPORTANT THAT IT BE BROUGHT
TO THE ATTENTION OF PLAINTIFF'S COUNSEL AND WAS BURIED IN 4500 PAEJS OF
RECORDS. I THINK THE ERROR THAT I COMPLAIN OF IN THE APPELLATE
DIVISION HERE IS THE APPELLATE DIVISION AS OPPOSED TO CRAFTING SOME DIFFERENT RESOLUTION
THAN JUDGE SUS SEE OR JUDGE WILL SON HAD COME UP WITH INSTEAD TURNED AROUND
AND FOCUSED ON THE REFERENCE TO THE 4500 PAGES OF MEDICAL RECORD AND SAID THAT'S
WHEN WE WOULD CRAFT SOMETHING AN YOU DON'T HAVE 4500 PAGES OF MEDICAL RECORD
THEREFORE THERE IS NOTHING FOR US TO DO HERE EXCEPT SAY THE DOCUMENT IS PRIVILEGED....
JUSTICE PATTERSON: BRUGALETTA MADE THE POINT THAT THERE
ARE SOME MEDICAL RECORDS THAT THERE ARE SO VAST AND THERE MAY EVEN BE HANDWRITING,
THAT IT MAY BE VERY DIFFICULT TO FIND IT. I DON'T THINK SEE
I DON'T SEE THAT BEING AN ISSUE IN THIS CASE AND THERE ARE A LOT OF ISSUES YOU
RAISED. YOU HAVE A SMALL VOLUME. E. DREW BRITCHER: THE
VOLUME OF RECORDS IS NOT AN ISSUE IN THIS CASE YOUR HONOR. JUSTICE
PATTERSON: YOU'RE NOT CONTENDING THAT THERE HAS TO BE A NARRATIVE IN EVERY CASE.
E. DREW BRITCHER: NO, I AM SUGGESTING WHEN YOU HAVE A SITUATION
WHERE THE FACTS THAT ARE IN THE ANALYSIS OR IN THE STATEMENTS GIVEN AFTERWARDS
ARE NOT ADEQUATELY IDENTIFIED IN THE PATIENT'S RECORD, THAT'S WHERE WE NEED
TO DRAW THE BALANCE SO, YOU KNOW, IN AN INSTANCE WHERE THERE IS AN INJURY THAT
A PATIENT HAS SUSTAINED AND THAT PATIENT REPORTS THAT INJURY AND YOU HAVE
A RECORD THAT SAYS I ENTERED THE PATIENT'S ROOM, A FELLOW PATIENT WAS SITTING AT THE
END OF THE BED QUIETLY AN THE PATIENT WAS ON THE FLOOR AND IN REALITY SOMETHING
ELSE MAY HAVE OCCURRED. WE NEED TO KNOW THE FACTS OF WHAT
ARE THERE AND NOT HAVE SOMETHING THAT DEPRIVES US OF THOSE FACTS.
JUSTICE WAINER APTER: IT SEEMS LIKE YOU'RE CONCEDING THAT YOU'RE NOT ENTITLED
TO WITNESS STATEMENTS MADE DIRECTLY AFTER THE INCIDENT. SO,
LET'S SAY AFTER THE INCIDENT, I'M GOING TO GIVE A TOTAL HYPOTHETICAL THAT HAS NOTHING
TO DO WITH ONE PATIENT OR ANOTHER, BUT THERE IS AN ACCIDENT AN THEN FOUR
NURSES GIVE A STATEMENT AS TO WHAT THEY SAW, WHO SAID WHAT, WHO SAID WHEN.
THOSE COULD NOT POSSIBLY BE GIVEN ONLY PURSUANT TO THE PSA BECAUSE THERE ARE
MANY OTHER REQUIREMENTS IN NURSING HOMES WHERE PEOPLE HAVE TO GIVE STATEMENTS.
SO I'M NOT SURE WHY YOU'RE CONCEDING THAT YOU'RE NOT ENTITLED TO THE STATEMENTS.
E. DREW BRITCHER: I AM NOT CONCEDING THAT I'M NOT ENTITLED
TO THE STATEMENTS IN THE SENSE THAT I AM SAYING WHATEVER FACT IS IN THAT STATEMENT,
IF IT'S NOT SOMEWHERE ELSE, WE ARE ENTITLED TO IT, SO IT IS THE
MECHANISM. WHETHER I GET THE STATEMENT OR I GET THE FACTS THAT ARE
IN THE STATEMENT, TO US, IS NOT WHAT MAKES THE DIFFERENCE. WHAT MAKES THE DIFFERENCE
IS THAT WE GET THE FACTS. SO, IN YOUR INSTANCE WHERE THERE IS
A STATEMENT GIVEN BY ALL THESE DIFFERENT INDIVIDUALS, YOU KNOW, LET'S JUST
TAKE FOR EXAMPLE, LET'S ASSUME YOU HAVE AN INCIDENT, ONE PERSON MAKES AN ENTRY
INTO THE PERSON'S CHART AN ONE PERSON ONLY. THREE OTHER PEOPLE ARE
WITNESSES. THREE OTHER PEOPLE GIVE STATEMENTS. THREE OTHER PEOPLE ARE KNOWN.
THREE OTHER PEOPLE ARE NOT IDENTIFIED IN MY CLIENT'S CHART, THREE OTHER PEOPLE
ARE NOT IDENTIFIED IN ANSWERS TO INTERROGATORIES. THREE OTHER PEOPLE
ARE NOT IDENTIFIED IN ANY OTHER WAY BECAUSE THE OTHER SIDE SAYS WE DID THAT PURSUANT
TO PATIENT SAFETY, IT'S COMPLETELY PRID, YOU DON'T GET TO KNOW IT. THAT'S
WHAT I AM TRYING TO STOP IN THIS PAIR OF CASES AND COME UP WITH THE BALANCE.
JUSTICE WAINER APTER: DON'T YOU WANT TO STOP IT BY GETTING THE STATEMENT
OF THOSE THREE OTHER PEOPLE? E. DREW BRITCHER: SO, IF THOSE
THREE OTHER INDIVIDUALS WERE IDENTIFIED AND I TOOK THOSE THREE OTHER
INDIVIDUAL'S DEPOSITIONS AND THOSE THREE INDIVIDUALS -- JUSTICE
WAINER APTER: LET'S SAY THEY'RE NOT IDENTIFIED AND YOU GO TO COURT AND YOU SAY
THE DEFENDANT IS HIDING A LOT OF RECORDS BY SAYING THAT THEY'RE ONLY CREATED
PURSUANT TO THE PSA BUT THAT'S NOT POSSIBLE BECAUSE HERE IS ALL THESE OTHER REGSZ
THAT REQUIRE THEM TO BE CREATED SO I WANT TO SEE ANY WITNESS STATEMENTS THAT
WERE CREATED IMMEDIATELY AFTER THE EVENT. E. DREW BRITCHER: AND I
COME BACK TO, IF THAT'S THE MOST APPROPRIATE MANNER FOR IT TO BE
ACCOMPLISHED, OPPORTUNITY OVER THE STATEMENTS AN THAT WOULD BE THE BEST THING FOR
THE COURT TO DO. THE COURT: TAKE YOUR EXAMPLE YOURSELF THE ONE
YOU GAVE WHERE THERE ARE THREE OTHER STATEMENTS AN NONE OF THEM HAVE BEEN DISCLOSED.
WHY ARE YOU ASKING FOR THOSE STATEMENTS? E. DREW
BRITCHER: AGAIN, I MAY HAVE MADE IT SOUND TOO MUCH LIKE I AM NOT LOOKING FOR THE
STATEMENT. I AM TRYING TO FIND THE BALANCE. THE COURT:
IN YOUR EXAMPLE, WHAT IS THE APPROPRIATE BALANCE. E. DREW
BRITCHER: THAT I AM EITHER GIVEN THE STATEMENT OR IN THE ALTERNATIVE, I AM GIVEN
A NARRATIVE OF ALL FACTS CONTAINED IN THOSE STATEMENTS WITH THE IDENTITY
OF THOSE INDIVIDUALS SO I CAN PROPERLY KNOW WHAT THEY SAID AT THE TIME AND WHAT
THEY SAW AT THE TIME AN TAKE THEIR DEPOSITIONS ACCORDINGLY AND IN AN
INSTANCE WHERE I TAKE A DEPOSITION OF SOMEBODY AND THEY SAY TO ME, I DON'T REMEMBER.
IT'S BEEN THREE YEARS, FOUR YEARS, WHATEVER. IF THERE IS A
STATEMENT THEY GAVE THAT DAY, THERE IS ABSOLUTELY NO REASON WHY THEY SHOULDN'T
BE ABLE TO SEE THAT STATEMENT AND REFRESH THEIR OWN RECOLLECTION OF WHAT
THEY SAID BECAUSE, AGAIN, THIS IS A SEARCH FOR THE TRUTH. JUSTICE
PATTERSON: SO WHAT DOES THE NURSING HOME ASPECT OF IT, WHICH TAKES IT AWAY FROM
TWO PREVIOUS CASES, OR AT LEAST DIFFERENTIATES THE TWO DIFFERENT CASES
ADD TO A NURSING HOME, ASSISTED LIVING. E. DREW BRITCHER: THE ONLY
REAL REASON WHY THERE IS ANY DIFFERENCE AT ALL IS BECAUSE GENERALLY SPEAKING
A LOT OF THE REGULATIONS WE TALK ABOUT THAT EXIST FOR THE QUALITY IMPROVEMENT FOR
HOSPITALS WERE NOT THE SAME FOR NURSING HOMES AN AS A RESULT THERE HAS BEEN A
DEGREE TO WHICH WHEN WE TALK ABOUT THE ALTERNATIVE SOURCES THE ALTERNATIVE
SOURCES DON'T NECESSARILY EXIST TO THE DEGREE THEY WOULD IN A HOSPITAL SETTING.
HOWEVER, NONETHELESS THERE IS A SEPARATE REGULATORY REQUIREMENT
THAT SAYS THAT THEY HAVE TO CONDUCT INVESTIGATIONS AND MUST DO SO OUTSIDE AND
BEYOND PATIENT SAFETY AS WELL, FAISH FAISH MR. BRITCHER. E. DREW
BRITCHER: YES. JUSTICE FASCIALE: IN YOUR HYPOTHETICAL YOU
SAID YOU EITHER GET THE STATEMENT OR NARRATIVE. E. DREW BRITCHER:
YES. JUSTICE FASCIALE: WHO WOULD PROVIDE THE NARRATIVE.
E. DREW BRITCHER: THE WAY THIS HAS BEEN DONE IN CASES WHERE
IT IS CONDUCTED BY A TRIAL COURT, THE COURT TOOK THE DOCUMENTS IN CAMERA, LOOKED
AT THEM, IDENTIFIED FACTS THIS THEY THOUGHT WERE IMPORTANT AND AS I
UNDERSTAND IT BECAUSE I OBVIOUSLY DIDN'T SEE THIS PART OF IT, HIGHLIGHTED THE FACTS
THAT THEY BELIEVED NEEDED TO BE REVEALED TO US AN SENT IT TO COUNSEL AND
ESSENTIALLY SAID EITHER IDENTIFY FOR ME WHERE THIS EXISTS SOMEWHERE ELSE FOR THE
PLAINTIFF TO HAVE OR PREPARE A NARRATIVE SETTING FORTH THESE FACTS AS PART OF
THAT NARRATIVE, SEND IT BACK TO THE COURT AND IF I FIND IT MEETS WHAT I BELIEVE
IS NECESSARY, I WILL THEN PROVIDE IT TO COUNSEL. JUSTICE
PATTERSON: DOES THAT LOOK A LOT LIKE AN ANSWER TO INTERROGATORY IN TERMS OF ITS
FORMAT. E. DREW BRITCHER: YES, IT DOES. JUSTICE
PATTERSON: I SUSPECTED IT WOULD. THE COURT: I MAY HAVE MISUNDERSTOOD
YOUR OPENING STATEMENT, THE PROCESS YOU DESCRIBE MAKES IMMINENTLY GOOD SENSE.
IF YOU HAVE A DOCUMENT THAT HAS FACTS AND MAY HAVE A SENTENCE OR TWO EMBEDDED IN
IT, FOCUS ON ANALYSIS, YOU'RE ONLY ENTITLED TO THE FACTS THEN OR SOME
VERSION OF THAT STATEMENT WHETHER IT'S A NARRATIVE OR OTHERWISE, THAT DOES NOT GIVE
YOU THE ANALYSIS. E. DREW BRITCHER: I DO NOT GET THE
ANALYSIS. THE COURT: I AM STILL STRUGGLING WITH YOUR EXAMPLE
WHERE YOU DESCRIBED TO US YOU HAVE ONE FACTUAL STATEMENT, PURE FACTUAL STATEMENT
AN THERE ARE THREE OTHER ENTIRELY FACTUAL STATEMENTS. WHY DOES
THAT HAVE TO GO THROUGH THE MORE COUPLE BERSOME PROPER CUMBERSOME PROCESS OF HAVING
A JUDGE REVIEW IT IF ALL WE'RE TALKING ABOUT FACTS AN ANALYSIS. AND YOU
DON'T HAVE THEM, WHY SHOULDN'T THE STATEMENT ITSELF BE DISCLOSED. YOUR AFRS SIS
MAY SAY THIS IS A TERRIBLE FRAMEWORK THAT YOU'RE PROPOSING BUT WE ARE TRYING
TO I UNDERSTAND YOUR FRAMEWORK. E. DREW BRITCHER: MY FRAMEWORK
IS TRYING TO BE TRUE TO THE NEGOTIATION OF THE BILL OF MAINTAINING A BALANCE
AND THE IDEA OF WHAT I'M SAYING TO THE COURT IS I AM PERFECTLY RESPECTFUL OF THE
FACT THAT THEY ARE CREATING THINGS THAT THEY MAY NEVER HAVE CREATED BEFORE THE
PSA EXISTED. IN THAT PROCESS, TO THE EXTENT THEY ARE SAYING, FOR EXAMPLE, THIS
OUTCOME OCCURRED BECAUSE SURGEON A DIDN'T HAVE ENOUGH EXPERIENCE IN DOING THE
SURGERY; THAT'S AN ANALYSIS, IT'S NOT A FACT. I CAN CERTAINLY
FIND OUT WHAT THE EXPERIENCE OF THAT DOCTOR WAS WITHOUT THEM HAVING TO TELL ME
THAT THAT WAS THE REASON THEY THINK THE OUTCOME OCCURRED. THAT ANALYSIS
WE DON'T HAVE A RIGHT TO. NOW, GIVE ME THE STATEMENT, DR. SMITH
PERFORMED THE SURGERY AND I HAVE GOT A HOSPITAL CHART THAT SAYS DR. JONES PERFORMED
THE SURGERY. THEY HAVE TO TELL ME THAT. THEY HAVE TO TELL ME WHO DID IT. IF
THAT IS EASIEST DONE BY A STATEMENT THAT HAS NO ANALYSIS IN IT, JUST A
STATEMENT, I SAW X, I HEARD Y, THAT STATEMENT, AS FAR AS I'M CONCERNED CAN
CERTAINLY BE PRODUCED FOR US AS THE EASIEST WAY TO NOT BURDEN IN CAMERA REVIEWS
ON THE TRIAL COURT MORE THAN NECESSARY. JUSTICE PIERRE-LOUIS: IT
SOUNDS LIKE YOU BEGAN YOUR ARGUMENT TRYING TO FIND A COMPROMISE BECAUSE THE
DEFENDANTS ARE STATING THAT THESE STATEMENTS WERE CREATED AND EXIST, ONLY EXIST
BECAUSE OF THE PATIENT SAFETY ACT AND THEREFORE BECAUSE THEY HAVE LABELED IT AS
SUCH, YOU ARE MAKING THE ARGUMENT THAT WELL, IN HAD ORDER TO GET THAT, WE
HAVE TO GO THROUGH THIS PROCESS AS OPPOSED TO SAVING -- MAKING THE STRONGER ARGUMENT
THAT THESE WITNESS STATEMENTS HAVE NO ANALYSIS, HAVE NO DELIBERATION, HAVE
NO DETERMINATIONS OF ANYTHING AN WE SHOULD FET THEM BECAUSE THEY ARE JUST 1 HUNDRED
PERCENT FACTS. E. DREW BRITCHER: YOU ARE CORRECT AND I I
HAVE TO SAY IT IS IN PART BECAUSE I AM BEING RESPECTFUL OF THE VERY FIRST
QUESTION THAT JUSTICE RABNER ASKED ME HE POINTED ME DIRECTLY TO THE PART OF THE
LEGISLATION THAT TALKS ABOUT HOW THE DOCUMENTS AN MATERIALS THAT ARE SENT
TO THE DEPARTMENT OF HEALTH ARE NOT DISCOVERABLE AND NOT CAME OF BEING USED IN
AND OF THEMSELVES. IT DOESN'T MEAN THEIR CONTENTS DON'T REFLECT SOMETHING THAT
HAS TO BE REVEALED. THE SUBSTANCE OF IT IS WHAT WE SHOULD BE GETTING.
JUSTICE PIERRE-LOUIS: NOTWITHSTANDING THE PROCESS OF WHAT
OCCURRED WITH THOSE STATEMENTS. E. DREW BRITCHER: I WILL JUMP IN
AND SAY IF THE STATEMENT SAYS ABSOLUTELY NOTHING, EXCEPT I SAW THIS, I HEARD
THIS, THERE IS NO ANALYSIS OR ANYTHING OF THAT NATURE, THEN I DON'T THINK THERE
SHOULD BE A PROBLEM WITH THE COURT SUPPLYING US THAT STATEMENT. T.
PERHAPS THEY SHOULD BE TAKING IT OFF THE PIECE OF PAPER THAT SAYS, YOU KNOW,
DEPARTMENT OF HEALTH FORM, WHATEVER IT MIGHT BE, BUT I'M TRYING TO BE
RESPECTFUL OF THAT BALANCE BECAUSE THAT WAS WHAT WAS NEGOTIATED.
JUSTICE PATTERSON: BUT IN GENERAL IF THERE IS COMPLIANCE, AS I UNDERSTAND YOUR
ARGUMENT IN THIS CASE, THERE WAS AN INSUFFICIENCY OF TECH NATURAL KAL
COMPLIANCE WITH THE PSA AND PERHAPS SUCCESSIVE FOCUS ON THE FEDERAL REGULATIONS
IN THIS SETTING AN RESPECTIVELY A NURSZING HOME AND AN ASSISTED LIVING FACILITY.
E. DREW BRITCHER: THAT WAS A PART OF THE ARGUMENT. I THINK
THE BIG ARGUMENT HERE IS ONE NEED ONLY LOOK AT MY CLEENT'S MEDICAL RECORD AND THE
PAUCITY OF INFORMATION ABOUT WHAT TOOK PLACE VERSUS THE STATEMENTS THAT
WERE GIVEN AND THE FACTS THAT WERE KNOWN AT THE TIME THAT WERE NEVER PROVIDED TO
MY CLIENT. THE COURT: SO LET'S GO BACK TO THE WORDS OF THE
STATUTE AND I APPRECIATE YOUR PRIOR ANSWER. YOU'RE NOT ASKING FOR THE STATEMENT
BECAUSE YOU DON'T WANT TO ASK FOR A DOCUMENT THAT WAS DEVELOPED AS PART OF THE
PSA PROCESS, BUT G ALSO SAYS YOU'RE NOT ENTITLED TO QUOTE, UNQUOTE,
INFORMATION. NARRATIVE INFORMATION. AND WHY DON'T YOU ADDRESS THAT BECAUSE I IMAGINE
YOUR FRIENDS ACROSS THE AISLE WILL. E. DREW BRITCHER: YES, SIR.
I BELIEVE WHEN THEY ARE TALKING ABOUT THE INFORMATION, THEY'RE
TALKING ABOUT THE ROOT CAUSE ANALYSIS. THEY ARE NOT TALKING ABOUT INDIVIDUAL FACTS
OF A PERSON BECAUSE THE FACTS THEMSELVES HAVE ALWAYS BEEN THE PROVINCE OF THE
PATIENT. JUSTICE WAINER APTER: IS THERE ANYPLACE IN THE
STATUTE THAT IT SAYS THE WORDS ROOT CAUSE ANALYSIS OR FACT. E. DREW
BRITCHER: NO, IT DOES NOT USE THE PHRASE FACT, I CAN TELL YOU THAT. IT USES THE
REFERENCE TO THERE BEING AN ANALYSIS. I DON'T THINK THEY USE IN THE STATUTE
THE ACTUAL, YOU KNOW, PHRASE R C.A., BUT WE USE R C.A. GENERALLY TO DESCRIBE IT.
JUSTICE PATTERSON: THEN THE ROOT CAUSE ANALYSIS, AS I UNDERSTAND
IT IS THE DOCUMENT OR ANALYSIS THAT BASICALLY SAYS HOW -- HERE IS WHAT HAPPENED
AND HOW DID THIS OCCUR AND HOW CAN WE IMPROVE. E. DREW
BRITCHER: SO THAT IT DOESN'T HAPPEN AGAIN. JUSTICE PATTERSON:
HOW DO WE DO IT SO IT DOESN'T HAPPEN AGAIN. E. DREW BRITCHER:
IF I CAN I THINK THERE ARE THINGS THE COMMISSIONER REVIEWS. THE COMMISSIONER
WOULD SAY IN THE COURSE OF THIS NOW WHAT WE NEED TO DO IS NOT FIND OUT WHEN
MR. JONS SON TAKES MR. JOE HAN SON'S MEDICATION AN DIES, BUT WHEN THE MEDICATION
ENDS UP ON THE SAME TRAY WE SHOULDN'T PUT TWO SUCH INDIVIDUALS IN THE SAME
HOSPITAL ROOM. THERE WAS A PROBLEM WITH A PARTICULAR CHEMOTHERAPY
AGENT THAT WAS TO BE ADMINISTERED IN ONE MANNER AN NOT THE OTHER AND THERE WAS
A PROBLEM WITH A LACK OF LABELING AT THE TIME THAT NEEDED TO BE CURED AND THEY
LEARNED IT AFTER MULTIPLE INDIVIDUALS SUFFERED THE CONSEQUENCE OF HAVING IT
ADMINISTERED THE WRONG WAY. JUSTICE PATTERSON: THESE ARE EXAMPLES
OF WHAT WOULD NOT BE PRODUCED. E. DREW BRITCHER: THESE ARE
EXAMPLES OF WHY WE NEED THIS AND WHY THE ANALYSIS NEEDS TO BE PROTECTED BECAUSE
YOU DON'T WANT TO TURN AROUND AND PUT THE HOSPITAL IN A POSITION OF BEING ANYTHING
OTHER THAN CANDID ABOUT WHAT WENT WRONG. JUSTICE PATTERSON:
BUT THE FACT THAT JONS SON AND JOE HANS SON HAD THEIR MEDICINE MIXED UP IS
PRODUCED IN SOME FORM. AND AFTER BRUGALETTA, THERE IS ANOTHER OPTION AVAILABLE.
E. DREW BRITCHER: BRUGALETTA BASICALLY GIVES THE IN
CAMERA OPTION TO THE COURT. JUSTICE PATTERSON: AN ALSO ALSO THE
NARRATIVE. E. DREW BRITCHER: IN CAMERA AND FOLLOWED BY
NARRATIVE. JUSTICE PATTERSON: IN CAMERA AND NARRATIVE.
IN GENERAL, THERE IS A CASE YOU'RE LITIGATING HERE, BUT IN GENERAL IS THAT
PROCESS FUNCTIONING? IN CAMERA AND WHEN NEEDED A NARRATIVE.
E. DREW BRITCHER: I HAVE SEEN BOTH. AN WHEN I SAY I'VE
SEEN BOTH I MEAN IN THE SENSE THAT I CLEARLY JUST DESCRIBED BEFORE TO JUSTICE FASH
IN A RGS BEING JUSTICE FASCIALE WHERE IT WAS DONE IN WHAT I COULD SEE AS
CLOSE TO PERFECT WHERE IT COULD BE DONE AND I HAVE SEEN INSTANCES WHERE -- EXCUSE
ME FOR SAYING THIS, I HAVE SEEN TRIAL JUDGES WHO IN MY OPINION KIND OF THREW
THEIR HANDS UP IN THE AIR BECAUSE IT WAS KIND OF TOO COMPLEK INDICATED FOR THEM
TO DEAL WITH RATHER THAN TURN AROUND AND GOING THROUGH ALL THOSE VARIOUS STEPS.
IS IT PERFECT? NO. IT IS WHY I THINK THE GUIDANCE
IS NEEDED FROM THIS COURT FOR THE APPROPRIATE WAY TO DO IT.
JUSTICE PATTERSON: SO YOU'RE ASKING FOR GUIDANCE ON WHAT THE COMMITTEE SETTING
IS, THE ORGANIZATIONAL SETTING, WHAT HAS TO BE DONE UNDER THESE VARIOUS
STATUTES, I GUESS? E. DREW BRITCHER: I WOULD SAY TO YOU THAT
I'M, I'M GOING TO SUGGEST THAT A REINFORCEMENT BY THIS COURT THAT ALL OF THOSE THINGS
HAVE TO HAPPEN INSTEAD OF JUST THE PATIENT BE SAFETY COMMITTEE IS VALUABLE, BUT
I THINK THAT REASONABLY SPEAKING, WE WILL FIND THAT THERE IS STILL GOING
TO BE FACTUAL PIECES OF INFORMATION THAT NEED TO BE PROVIDED THAT AN IN CAMERA
REVIEW OF THE PSA -- JUSTICE PATTERSON: I WASN'T FINISHED.
I WAS GOING TO SAY IN CAMERA AND ALSO THE NARRATIVE UNDER BRUGALETTA.
E. DREW BRITCHER: AS NEEDED. THE COURT: MR.
BRITCHER WE ONLY HAVE 12 LAWYERS LINED UP FOR THIS CASE AS WELL AS THE NEXT ONE
IS THERE ANYTHING YOU WILL NEED TO SAY IN REBUTTAL. E. DREW
BRITCHER: NO. THE COURT: I ENCOURAGE ALL PARTIES TO ADOPT TO
THE EXTENT THEY CAN AN AMICI SHOULD PLAN ON NO MORE THAN TEN MINUTES, WE USUALLY
ARE MORE GENEROUS THAN THAT. MR. LAURI.
JONATHAN F. LAURI: MAY IT PLEASE THE COURT, IN BOTH THE CASES BEFORE THE COURT,
THE DEFENDANTS DID NOT FOLLOW THE SPECIFIC PROCEDURES SET FORTH IN THE PATIENT T
SAFETY ACT AND THE REGULATIONS. THE PATIENT SAFETY ACT WAS USED TO
FUNNEL DISCOVERABLE OTHER NONCONFIDENTIAL PROCESSES THAT OCCUR IN HEALTHCARE
FACILITIES. THE NURSING HOME SETTING IS UNIQUE FROM OTHER TYPES
OF HEALTHCARE FACILITIES. THERE IS EXTENSIVE FEDERAL LAW THAT CONTROLS THE
OPERATIONS OF NURSING HOMES. IT IS IMPORTANT TO REMEMBER THAT
NURSING HOMES VOLUNTARILY AGREE TO BE BOUND BY THESE FEDERAL LAWS IN
EXCHANGE FOR MEDICARE AN MEDICAID MONEY. THIS IS NOT A SITUATION WHERE
THERE IS ANY SURPRISE ABOUT WHAT THEY NEED TO ACCOMPLISH IN ORDER TO COMPLY
WITH THE FEDERAL RULES. THERE IS NO EXPECTATION OR INDICATION THAT THE DOCUMENTS
OR INFORMATION MANDATED TO BE INCLUDED IN THE NEGLECT INVESTIGATION ARE GOING TO
BE CONFIDENTIAL. IN FACT, THE FEDERAL RULES RECALL A FACILITY
DEVELOP POLICIES ON HOW THEY WILL CONDUCT THESE NEGLECT INVESTIGATIONS.
THE TWO MAJOR CONSIDERATIONS THAT APPLY IN A NURSING HOME SETTING
ARE THE MANDATORY, NONE CONFIDENTIAL INVESTIGATION AN REPORTING REQUIREMENTS FOR
ALL POTENTIAL INCIDENCES OF NEGLECT, ABUSE, MISTREATMENT, MISAPPROPRIATION
OF PROPERTY AN INJURIES OF UNKNOWN SOURCES. JUSTICE
PATTERSON: CAN YOU GIVE US THE CITATION FOR THAT. JONATHAN F.
LAURI: 42 C.F.R. 483.1, 2 AND THEN THERE ARE SUBSECTIONS, AND THE MANDATORY
REQUIREMENT TO HAVE A QUALITY ASSURANCE IMPROVEMENT PROGRAM.
THESE ARE TWO SEPARATE REQUIREMENTS. JUSTICE PATTERSON: COULD YOU
GIVE US THE YOOIT TO THAT. JONATHAN F. LAURI: 42 C.F.R.
IN THE PRESENCE THAT WILL PROMPT A MAPD INVESTIGATION IN
REPORTING COULD INCLUDE UNEXPLAINED BRUISING, AN UNWITNESSED FALL, PRESSURE
WOUNDS OR RESIDENT ON RESIDENT INJURIES OR. THE DEPARTMENT
OF HEALTH HAS RECOGNIZED THAT NURSING HOMES ARE BOUND TO FOLLOW THESE RULES. THEY
ARE ALSO BOUND TO RECOGNIZE THAT STATE LAW CANNOT. THE PATIENT
SAFETY ACT CONFIDENTIALITY PROVISION CANNOT BE IMPOSED ON THESE STANDARDS.
IMPOSE MENTD THE DEPARTMENT OF HEALTH REQUIRES FACILITIES ONLY TO COMPLOI
WITH THE FEDERAL INVESTIGATIVE AND REPORTING REQUIREMENTS.
THERE IS NO PATIENT -- JUSTICE PATTERSON: I AM GOING TO PAUSE YOU
RIGHT THERE, YOU SAID THE DEPARTMENT OF HEALTH DID WHAT?
JONATHAN F. LAURI: THEY TO NOT REQUIRE THEM TO REPORT TO THE DEPARTMENT OF HEALTH
UNDER THE PATIENT SAFETY ACT OR TO CONDUCT SERIOUS PREVENTABLE ADVERSE EVENT
ROOT CAUSE ANALYSIS. JUSTICE PATTERSON: WHICH IS ALL REQUIRED
UNDER THE PSA. JUSTICE WAINER APTER: YOU'RE SAYING THE PSA DOES
NOT APPLY TO THE NURSING HOME. JONATHAN F. LAURI: THEY, IF THEY
COMPLY WITH FEDERAL LAW THEY'RE CLIENT WAIFRN WAYNE WHERE DO WE FIND THAT.
JONATHAN F. LAURI: IN THE REGULATIONS, DO YOU WANT TO CITE.
JUSTICE WAINER APTER: YOU CAN GET IT TO US LATER.
THERE IS A REGULATION THAT SAYS YOU DON'T HAVE TO COMPLY WITH THE PSA AT ALL
BECAUSE THERE ARE FELL RAL REGULATIONS THAT REQUIRE I TO COMPLY WITH OTHER
THINGS AND WE BELIEVE EVERYTHING YOU'RE DOING TO COMPLY WITH THE FEDERAL REGULATIONS
IS SUFFICIENT. JONATHAN F. LAURI: YES, UN EACH ONE FOR REPORTING
AN THEN UNDERSTAND CONDUCTING FOR ROOT CAUSE FOR A SERIOUS EVENT, AND THEN THEY WILL
HAVE AN SECTION THAT SAYS EXCEPT FOR MEDICARE OR MEDICAID NURSING HOMES.
JUSTICE WAINER APTER: THAT WAS WHAT BOTH OF THESE HOMES WERE.
A. ONE WAS MEDICARE THE OTHER WAS ASSISTED. THE ANALYSIS IS DIFFERENT, NURSING
HOMES DO HAVE A MUCH HIGHER LEVEL OF FEDERAL MANDATES THAT THEY CAN COMPLY
WITH. IT'S JUST THE LIFG FACILITIES ARE MORE OF A CREATURE OF NEW JERSEY STATE
REGULATION, MORE LIKE THE HOSPITALS. JUSTICE WAINER APTER:
SO THE ASSISTED LIVING FACILITIES DO HAVE TO COMPLY WITH 'THE PSA BUT THE
NURSING HOMES DO NOT. JONATHAN F. LAURI: EVERYBODY HAS TO COMPLY
WITH THE PATIENT SAFETY ACT, ANY TYPE OF HEALTHCARE FACILITY. THERE ARE
EXCEPTIONS FOR NURSING HOME FACILITIES TO DO CERTAIN ACTS UNDER THE PATIENT SAFETY
ACT, BUT THEY STILL HAVE TO HAVE A PATIENT SAFETY PLAN, THEY HAVE TO HAVE
A PATIENT SAFETY COMMITTEE. THEY ALL OTHERWISE HAVE TO COMPLY WITH THE PATIENT
SAFETY ACT BECAUSE THE DEPARTMENT OF HEALTH SAID AND IT'S IN THEIR RULE
MAKING, THEY BASICALLY SAID WE'RE NOT GOING TO REQUIRE THE NURSING HOMES TO DO
ANOTHER SERIOUS PREVENTABLE ADVERSE EVENT ANALYSIS BECAUSE THEY ARE ALREADY
DOING IT FOR THE FEDERAL REGULATIONS AND THEY SAY IT'S NOT GOING TO PRODUCE ANY
BETTER CARE TO PROVIDE THEM CONFIDENTIALITY FOR DOING THE SAME EXACT
ANALYSIS. AND THEN THEY SAID WELL THE ONLY OTHER OPTION WOULD BE
TO CREATE A DUPLICATE PROCEDURE. AND, AGAIN, THAT REALLY DOESN'T MAKE
ANY SENSE BECAUSE NOW YOU WOULD HAVE THE SAME DOCUMENT THAT IS PRIVILEGED
IN ONE SENSE AN NOT PRIVILEGED UNDER -- JUSTICE PATTERSON: BUT WHETHER OR
NOT IT MAKES SENSE WHERE DO WE GO TO FIND OUT TASH DASH BECAUSE TELL ME IF
I'M WRONG, ONE OF THE ALLEGATIONS IN THIS CASE WAS THAT THE NURSING HOME AND THE
ASSISTED LIVING WERE COMPLYING WITH THE FEDERAL PROCESS, TO USE A GENERAL
TERM. JONATHAN F. LAURI: RIGHT. JUSTICE
PATTERSON: BUT NOT WITH THE PSA PROCESS. JONATHAN F. LAURI:
CORRECT. JUSTICE PATTERSON: I THINK WHAT YOU'RE SAYING IS
THAT MAY BE IN PART TO A DIRECTIVE FROM THE DEPARTMENT OF HEALTH.
JONATHAN F. LAURI: NO. SO THERE'S -- THEY ARE ONLY COMPLYING WITH THE QUALITY
ASSURANCE PERFORMANCE IMPROVEMENT WHICH IS A FEDERAL REQUIREMENT WHICH WAS
THE .75 THAT I MENTIONED BEFORE. JUSTICE WAINER APTER: BACK TO 139
5 I C. JONATHAN F. LAURI: YES, THAT WOULD BE A STATUTE, THE
OTHER ONE I CITED TO WAS THE REGULATION. JUSTICE PATTERSON: DO YOU
SEE WHAT I'M SAYING? LET ME ASK A VERY GENERAL QUESTION.
WHERE DO WE GO TO FIND OUT WHETHER ANY OR SOME OR NONE OF THE
ALLEGATIONS IN THIS CASE ARE CORRECT THAT THERE WAS A DEFICIENT PROCESS BECAUSE
IT WAS RELIANT ONLY ON THE -- COMPLIANT ONLY WITH THE FEDERAL REGULATIONS
IN THE STATUTE? DO YOU SEE WHAT I AM SAYING.
JONATHAN F. LAURI: THE CERTIFICATIONS OF THE CARE ONE EMPLOYEES SAY THEY ARE ONLY
COMPLYING. THEY SAY THEY HAVE THE QUALITY ASSURANCE PERFORMANCE IMPROVEMENT.
THEY SAY TASH DASH. JUSTICE PATTERSON: I GET THAT'S WHAT HAS BEEN
SAID BUT MAYBE ON REBUTTAL MR. BRITCHER CAN HELP US WITH THIS IS THAT THAT IS PART
OF THE CAUSE OF ACTION HERE. I THINK WHAT YOU'RE SAYING IS
THERE IS SOMETHING IN THAT THE DOH HAS ISSUED THAT DIRECTS THEM TO MAYBE
DO SOME PSA ACTIVITIES, BUT NOT ALL. JONATHAN F. LAURI: IT JUST
DEEMS THEM COMPLIANT. IT DOESN'T SAY YOU CAN DO IT OR IT DOESN'T SAY YOU
CAN'T DO IT. IT SAYS IF YOU DO THE FEDERAL WE'RE GOING TO DEEM YOU COMPLIANT WITH
THIS SPECIFIC SECTION, THIS SPECIFIC PROCEDURAL REQUIREMENT BECAUSE THIS
WHOLE ANALYSIS STARTS WITH THE PROCEDURE, RIGHT? WE NEED TO SAY
WERE YOU PROCEDURALLY COMPLIANT BEFORE WE THEN EVEN ADDRESS WHETHER YOU GET
PATIENT SAFETY PRIVILEGE OR EVEN ADDRESS ISSUES LIKE BRUGALETTA.
IN THIS CASE, THERE WAS NO -- IT'S OUR POSITION THERE WAS NO PATIENT SAFETY
COMPLIANCE. IT DOESN'T EVEN REACH THAT NEXT LEVEL ANALYSIS. THE ONLY
ANALYSIS WOULD BE UNDER THE FEDERAL REQUIREMENTS. JUSTICE PATTERSON:
SO YOU'RE SAYING THAT THEY MAY BE IN COMPLIANCE WITH THE DEPARTMENT OF
HEALTH'S -- TELL ME IF THIS IS RIGHT, WITH THE DEPARTMENT OF HEALTH'S DIRECT I HAVE
THAT THEY NEED ONLY COMPLY WITH THE FEDERAL STATUTES AN REGULATIONS IN SOME
SPECIFIC ACTIVITIES IN ORDER TO BE COMPLIANT FROM A REGULATORY POINT OF VIEW, IS
IT YOUR ARGUMENT THAT BECAUSE THEY CHOOSE TO ONLY COMPLY WITH THE FEDERAL
REGULATIONS IN ACCORDANCE WITH THAT DIRECTIVE THAT THEY DON'T GET THE PSA PROTECTION
FOR THE DOCUMENTS. JONATHAN F. LAURI: UM. JUSTICE
PATTERSON: IS THAT THE ARGUMENT. JONATHAN F. LAURI: THEY DON'T
GET THE PSA PROTECTIONS FOR THE DOCUMENTS BECAUSE THESE ARE MANDATORY DOCUMENTS
REQUIRED AND IT WAS NEVER MEANT TO IMPOSE ON THAT. JUSTICE
PATTERSON: IS THE ANSWER YES TO MY GENERAL QUESTION OF WHAT THE ALLEGATION IS HERE.
JONATHAN F. LAURI: THE PROBLEM WITH THE QUESTION IS IT
CREATES A VERY BROAD BRUSH. I WANT TO BE CLEAR THE COMPLIANCE ASPECT ONLY APPLIES
TO TWO PROVISIONS IN REPORTING AND CONDUCTING THE SERIOUS YOUS ADVERSE
EVENT ANALYSIS. IT DOESN'T MEAN THEY CAN'T DO THAT. THEY
ACTUALLY HAVE TO HAVE A PATIENT SAFETY COMMITTEE AN THEN DO ANOTHER ANALYSIS, MAYBE
A HIGHER LEVEL ANALYSIS THAN WHAT IS REQUIRED ON THE FEDERAL, THEY WOULDN'T TO
LOOK AT THE ACTUAL SYSTEMS, THEY CAN DO THAT AND GET THE PRIVILEGE AN
CONFIDENTIALITY ASSOCIATED WITH THAT. THEY DON'T GET TO JUST ATTACH THE PATIENT
SAFETY PRIVILEGE TO THESE MANDATORY FEDERAL REQUIREMENTS AND MANDATES.
JUSTICE WAINER APTER: ISN'T IT ALSO TRUE THAT THEY DON'T GET TO ATTACH
THE PRIVILEGE TO A DOCUMENT THAT IS CREATED BOTH TO SATISFY THE PSA AN TO
SATISFY A FEDERAL REGULATION. JONATHAN F. LAURI: THE REGULATIONS
HAVE AN EXCLUSIVITY REQUIREMENT SO THAT WAS CLEARLY VIOLATED IN THIS CASE
AS WELL AN THE DEPARTMENT OF HEALTH -- JUSTICE WAINER APTER: THE
REGULATIONS WHEN THEY ARE TALKING ABOUT DOCUMENTS, MATERIALS, INFORMATION,
AND THEN THEY DO SAY R C.A.S AN MINUTES OF MEELTINGS BUT IT SAYS DEVELOPED BY A
HEALTHCARE FACILITY EXCLUSIVELY DIRG THE PROCESS OF SELF CARE ANALYSIS SO IF
YOU GET A WITNESS STATEMENT AND IT GOES BOTH TO THE PSA COMMITTEE AN ONE OF THESE
FEDERAL COMMITTEE CREATED BY THE F N H R A OR THE 482 C.F.R. 483.12, THEN THAT
WITNESS STATEMENT STILL IS NOT PRIVILEGED OR CONFIDENTIAL UNDER THE PSA
BECAUSE IT WAS NOT DEVELOPED EXCLUSIVELY DURING THE PROCESS OF SELF-CRITICAL
ANALYSIS, IT WAS ALSO DEVELOPED TO BE SENT TO THE KWAUK OR THE QUACK FEE.
JUSTICE PATTERSON: MAYBE THAT IS POORLY NAMED? JUSTICE
WAINER APTER: IS THAT YOUR ARGUMENT? IT DOESN'T HAVE TO BE
THEY ARE ONLILY COMPLYING WITH THE FEDERAL REGULATIONS AN NOT THE PSA, JUST
THAT THE PSA SAYS IF YOU'RE DOING THIS FOR MULTIPLE REASONS IT IS NOT PRIVILEGED.
IT IS ONLY PRIVILEGED IF YOU ARE DOING IT EXCLUSIVELY OF THE MRO ES OF
SELF-CRITICAL ANALYSIS OF THE PSA. JONATHAN F. LAURI: RIGHT SO ANYTHING
THAT GETS SENT TO THE PSA LIKE A PSA COMMITTEE ACTUALLY WOULDN'T EVEN
REALLY BE, WOULDN'T BE PRIVILEGED ANYWAY BECAUSE IT'S NOT DEVELOPED EXCLUSIVELY
BY THAT. THESE WITNESS STATEMENTS, IT'S VERY COMMON IN NURSING HOMES THAT
ALL FALLS ARE GOING TO GET -- DASH YOU'RE GOING TO GET AN INCIDENT REPORT, ALL
OF THE PEOPLE THAT SAW THE FALL OR DIDN'T SEE THE FALL, WHEN WAS THE LAST TIME
THEY SAW THE PATIENT. THERE IS A BUILT OF ANALYSIS THAT GOES. IT IS A
ROUTINE DOCUMENT. THIS IS NOT BEING OFFERED AS A SELF-CRITICAL ANALYSIS. SO I
THINK WHAT I ARGUED IN THE THIRD PART OF MY BRIEFING IS IT'S TIME PLACE
AN MANNER. WE HAVE TO BE VERY SUSHG COUPLE RESPECT ON WHEN DID THE SELF-CRITICAL
ANALYSIS START, WHEN DID THIS ROOT CAUSE ANALYSIS START. THE
PATIENT SAFETY COMMITTEE HAS TO BE NOTIFIED OF THIS AND THEN SAY OKAY, THERE IS
AN EVENT THAT IS WORTH INVESTIGATING AND WORTH OUR TIME AN THEN WE'RE GOING
TO NOW DO OUR INVESTIGATION. ANYTHING AFTER THAT DECISION IS FACTUAL
MATERIAL THAT COULD BE INCLUDED IN THE CONFIDENTIALITY, BUT ANYTHING BEFORE
THAT THAT GETS SENT TO THEM, THEY HAVE TO BE NOTIFIED OF IT IS NOT GOING TO BE
PRIVILEGED. JUSTICE PATTERSON: WHAT IF THERE IS A POLICY
IN A FACILITY THAT SAYS ANY TIME X TYPES OF EVENTS HAPPEN, THIS IS GOING TO BE
INVESTIGATED BY THE PSA COMMITTEE AN HERE IS WHAT YOU NEXT DO? IN.
IS THERE SOMETHING IN THE PATIENT SAFETY ACT THAT SAYS YOU HAVE TO HAVE THE FWRUP
CONVENE AND SAY OH, SOMETHING HAPPENED, WE NEED TO GO FROM THERE OR CAN THERE
BE AND PERHAPS THIS MAY BE JUST BETTER BER FOR HEALTHCARE A STANDING POLICY THAT
CERTAIN TYPES OF EVENTS GO THROUGH WHATEVER THE FEDERAL REQUIREMENTS MAY
BE, THEY WILL ALSO FWOE THROUGH A PSA PROCESS AND HERE IS HOW THAT'S GOING TO WORK.
JONATHAN F. LAURI: RIGHT, ASSUMING THAT THAT SITUATION DOESN'T
VIOLATE THE OBLIGATION TO THESE OTHER ANALYSIS CEASE THAT IS REQUIRED, THE PATIENT
SAFETY STATUTE DOESN'T DEFINE WHAT A PATIENT SAFETY XHILT EE IS SUPPOSED
TO DO IT. IT LEAVES IT TO THE REGULATIONS. THE REGULATIONS SAY THE PATIENT
SAFETY COMMITTEE IS SUPPOSED TO DO THE ROOT CAUSE ANALYSIS AN SUPPOSED TO
DO THAT AND THAT'S WERE I MENTION THE AD HOC MEMBERS. THESE NURSES THAT DID THIS
ANALYSIS WEREN'T ON THE PATIENT SAFETY COMMITTEE. IT ONLY ALLOWED ADDING AN
AD HOC MEMBER AFTER AN ADVERSE EVENT CURSE. JUSTICE PATTERSON: I
AM NOT ADDRESSING WHAT HAPPENED HERE. I AM TRYING TO UNDERSTAND THE SCOPE OF
WHAT YOU'RE SAYING. ARE YOU SAYING THAT IN ORDER TO TRIGGER
THE PSA BECAUSE I FRANKLY DON'T SEE THIS IN THE REGULATIONS, WHICH ARE NOW
OBVIOUSLY IN EFFECT, WHICH THEY WERE NOT IN C.A., A REQUIREMENT THAT NOTHING --
THE PSA PROCESS ONLY BEGINS WITH A MEETING OF THE PSA COMMITTEE SAYING UH-HUH,
WE HAVE THIS ISSUE LET'S TAKE IT FROM HERE AND YOU CAN BE HAVE -- CAN YOU HAVE
A HOSPITAL POLICY THAT SAYS IF THE FOLLOWING TYPES OF EVENTS OCCURS, IT'S GOING
TO BE A PSA PROCESS AN HERE IS WHAT IS GOING TO HAPPEN.
JONATHAN F. LAURI: I THINK YOU WOULD HAVE A HOSPITAL POLICY THAT NOTIFIES THE COMMITTEE
OF THE EVENT AN THEN THEY HAVE TO MAKE THAT DECISION. IT IS -- YOU HAVE
TO READ THE LANGUAGE VERY CLOSELY, BUT IT DOES REFER TO WHO GETS TO DO THE ANALYSIS
AN THEN WHEN THE ANALYSIS SHOULD BE CONDUCTED AFTER A CERTAIN EVENT
OCCURRING. THE COURT: ANY OTHER POIPTS YOU WOULD LIKE TO MAKE?
JONATHAN F. LAURI: JUST ONE FINAL POINT, YOUR HONOR, WHICH IS,
CLOP UP TOP UH-HUH IS A H A. JONATHAN F. LAURI: I THINK BY THE OPINION
OF THE APPELLATE DIVISION, IF IT'S UPHELD, ONE OF THE ISSUES IS THAT NOW
A NURSING HOME WITH ONLY A QUALITY INSURANCE PERFORMANCE IMPROVEMENT COMMITTEE
OR PLAN WILL BE ABLE TO COMPLAIN THAT THESE MANDATORY USE ABUSE AN NEGLECT
ARE NOW PATIENT SAFETY PRIVILEGE, THESE INVESTIGATIONS OR OTHER SOURCES OUTSIDE
OF THE PATIENT SAFETY APRIL TO PROVIDE INFORMATION ABOUT EVENTS THAT OCCUR
IN THE FACILITY AN WE RESPECTFULLY REQUEST THAT THE DECISION BE CORRECTED.
THANK YOU. CHIEF JUSTICE RABNER: THANK YOU, MR. COCCA. THANK
YOU VERY; MAY IT PLEASE THE COURT, I THINK WE ARE HERE AGAIN ARGUING FOR FACTS. I THINK
THAT THE CASE LAW IS VERY CLEAR, JUSTICE PATTERSON IN C A, JUS NIS LA VEK YA IN
BRUGALETTA, CLEARLY RULED THAT FACTS CANNOT BE SEPARATED FROM THE ANALYSIS. WHEN WE AND
GAUGE ON THE ROAD OF HE HAVE, IT'S BEEN CALLED A ROOT CAUSE ANALYSIS BUT IT CAN MEERL
BE AN INVEST GAVE PROCESS, WHEN WE GO DOWN THE ROAD OF THE INVESTIGATIVE PROCESS, FACTS
ARE AN INTEG DPRUL PART OF THAT PROCESS AND IT'S BEEN LEGION WITH THIS COURT, THE LAW
OF THE LAND AS INTERPRETED BY THE LAW OF NEW JERSEY AS INTERPRETING THE PATIENT SAFETY
ACT THAT AS CHIEF JUSTICE RABNER INDICATED, CHEFL.I'LL USE A SHORTCUT, 12.25, F AND G,
PEEKS TO ANY DOCUMENTS, MATERIALS OR INFORMATION RECEIVED BY THE DEPARTMENT SHALL NOT
BE STOUBT DISCOVERY OR ADD MISS AL IN ANY CIVIL, CRIMINAL OR ADD STRAFZ PROCEEDING.
I THINK IT'S QUITE CLEAR DESPITE THE SOFTENING OF THE TONE HERE TODAY, I THINK
IT'S QUITE CLEAR THAT PLAINTIFF'S COUNSEL AND NOT JUST IN THIS CASE BUT IN MANY CASES
THAT I'M SEEING, AND I'LL ADDRESS THAT BECAUSE I KNOW THE COURT HAS ADDRESSED OUR HOSPITALS
COMPLYING UNDER, ASSISTED LIVING FACILITIES COMPLYING, THERE'S A MOVEMENT A FOOT TO GET
FACT, THERE'S MOVEMENT AFOOT TO CHEB AWAY AT THE ABSOLUTE PRIVILEGE. AND THIS STATUTE
AND THE TESTIMONY VEN I APPRECIATE MR. BRITCHER'S INVOLVEMENT BUT THE TESTIMONY FROM THE
LEGISLATIVE BODY IS PART OF THE RECORD. AND WE READ THAT RECORD AND WE CAN SEE THAT RORND
WE CAN SEE THAT THE RECORD APPLIES TO AND I HAVE THE CITATION FOR IT, TO ALL HEALTHCARE
FACILITIES. CERTAINLY THERE WAS A FOCUS T ON HOSPITALS, BUT THE AND TENT OF THE
LEGISLATION WAS TO APPLY TO ALL HEALTHCARE ARE FACILITIES. AND THAT'S PART OF
JUSTICE PATTERSON: IF FOUR NURSES HAD WITNESSED A FALL OR WITNESSED THE AFTERMATH OF A
FALL, CAN YOU KEEP THE NAMES OF THREE OF THEM OUT UNDER THE PSA. ANTHONY COCCA:
IFFED ASK, NO, I DON'T THINK SO. RAGE RAGE I THOUGHT THAT WAS WITH THE INTERROGATORY
SAID IN THIS CASE, LIKE WE WANT THE NAMES OF EVERYONE THAT PRO VOIDED A STATEMENT. I
THOUGHT THAT'S WHAT IT WAS OBJECTED TO. OKAY OKAY I THINK THAT IT DEPENDS ON THE SCOPE
OF THE QUESTION AND THE BREADTH OF THE QUESTION, IN OTHER WORDS IF THE QUESTION IS TELL
ME WHAT HAPPENED IN THE CONTEXT. PSA, THEN 80S' PROTECT, BUT IF IT'S TELL ME WHAT HAPPENED,
ETS A A SUBTLETY. JUSTICE WAINER APTER: REQUESTED NAME AN ANDED A DRESS OF
ANY PERSON M MADE A TIEMENT. ANTHONY COCCA: YES, I SHOULD BE PRO TEKTD,
IF THE QUESTION INSTEAD IS PLEASE GIVE ME THE NAME OF ANYONE WHO WITNESSED THE EVENT OR
HAS INFORMATION ABOUT THE EVENT, THEN I THINK THAT'S A DIFFERENT ANALYSIS. BUT THE
INTRUSION ON THE PSA IS WHAT THAT INTERROGATORY SPEAKS TO AND WHAT THAT INTERROGATORY
ADDRESSES. THAT'S THE ISSUE. JUSTICE NORIEGA: THE BEGINNING OF THE PSA
PROCESS AS AMICUS HELPED US WITH BEFORE IN TERMS OF WHEN DO WE START ANALYZING THAT POINT?
COKE COCK IT CAN BE AS IN BRUGALETTA, JUSTICE LA VEK YA INL CATERED INCIDENT REPORTS ARE
PROTECT THE, SO IT CAN BE AS SIMPLE AS SOMEBODY FILES AN INCIDENT REPORT OR INCIDENT REPORTS
A GUN THAT, INCIDENT REPORT SHOULD BE PROTECTED BECAUSE IT'S THE START, INITIATION OF THE
PATIENT SAFE STIE PROCESS. JUSTICE NORIEGA: EVEN BEFORE THE PATIENT SAF
ETY COMMITTEE HAS BEEN ESTABLISHED AND DESIGNATED AND EVEN CONVENED TO REVIEW A MATTER,
EVERYTHING LED UP TO IT IS GOING TO BE INCLUDED? ANTHONY COCCA: WELL, THAT
GETS INTO A NUANCED AREA AND THAT IF THERE ARE FACTS OTHERWISE DISCOVERABLE, THEN IT'S
NOT NECESSARILY PRO TEKTD. AND WHAT I MEAN BY FACTS OTHERWISE DISCOVER A THE WHO, WHAT,
WHERE, WHY, WHEN AND WATCH, JOULT SIDE THE PSA PROCESS, THE PAT PROCESS GIVENS WHEN IT
BEGINS AND THAT MIGHT BE WITH AN INCIDENT REPORT, IT MIGHT BE SITTING DOWN WITH A TORE
MULL ROUND TABLE MEETING. CHIEF JUSTICE RABNER: WHAT DO YOU MEAN THE FACTS
DISCOVER AB. WHAT DO YOU MEAN WHEN YOU SAY, WHO, WHAT, WHEN AND WHERE, HOW ARE THEY
DISCOVERABLE? ANTHONY COCCA: SURE, WHAT HAPPENS OUTSIDE THE PSA PROCESS,
FOR EXAMPLE, ARE CERTAINLY FACTS THAT ARE DISCOVERABLE. JUSTICE
PIERRE-LOUIS: WE'RE TRYING TO UNDERSTAND AT WOULD POINT DOES THE PSA PROCESS BEGIN, IF
SOMETHING OCCURS IN A FACILITY, IT SEEMS TO BE THE CASE THAT THE PEOPLE IN CHARGE THE
FACILITY WOULD BEGIN THE PRO SEFS TRYING TO FIGURE OUT WHAT HAPPENED PRIOR T A COMMITTEE
BEING CONVENED OR A FORMAL INCIDENT REPORT BEING FILE. SO THEY'RE I'M SURE THERE ARE
CONVERSATIONS OR DISCUSSIONS WITH THE INDIVIDUALS THAT HAVE INFORMATION ON WHAT HAPPENED,
WHAT DID YOU SEE, WHAT OCCURRED, JUST LIKE YOU SAID, THE WHO WHAT, WHERE AND WHY.
ANTHONY COCCA: P YEAH. JUSTICE PIERRE-LOUIS: ALL OF THAT IS DISCOVERABLE
FWHUT WHAT FORM, IF YOU ARE STATING THAT IF THOSE STATEMENTS LATER BECOME PART OF THE
PSA PROCESS, YOU CAN'T EVEN PROVIDE THE NAMES OF THE INDIVIDUALS WHO GAVE THE STAMENTS.
ANTHONY COCCA: IT DEPENDS ON AGAIN IT THE CONTEXT. IF THE STATEMENTS THAT
ARE AT ISSUE IN THIS CASE ARE ARE WITNESS STATEMENTS. THEY'RE WITNESS STATEMENTS THAT
ARE MADE WITHIN THE CONTEXT OF SOME SORT OF ANALYSIS OR SOME SORT OF INVESTIGATIVE
PROCESS. AND THAT'S THE VERY CHILLING EFFECT AND PROBLEM THAT -- JUSTICE WAINER
APTER: IF THERE WAS NO PSA AND SOMEONE FELL OR WAS ATTACKED OR WAS INJURED, THERE WOULD BE
NO ONE WHO WOULD EVER BE ASKED WHAT HAPPENED, WITNESS STATEMENTS ARE ONLY FOR THE PURPOSE
OF THE PSA? ANTHONY COCCA: NO, I'M SAYING WHEN WITNESS STATEMENTS OCCUR
WITHIN THE CONTEXT OF THE PSA, THEN THEY'RE PROTECTED. JUSTICE WAINER
APTER: WITHIN THE CONTEXT OF THE PSA, I THINK THAT'S WHAT WE'RE ALL TRYING TO GET OUT.
SO SOMEONE IS INJURED AND THEN SOMEONE ELSE SAYS WHAT HAPPENED, HOW IS THAT ONLY WITHIN
THE CONTEXT OF THE PSA? BECAUSE THE PSA REQUIRES IT BE EXCLUSIVELY WITHIN THE CONTEXT
OF THE PSA, HOW IS TRYING TO FIGURE OUT WHAT HAPPENED ONLY WITHIN THE EXCLUSIVE CONTEXT
OF THE PSA? ANTHONY COCCA: TRYING TO FIGURE OUT WHAT HAPPENED CAN BE WITHIN
EXCLUSIVE CONTEXT OF THE PSA AND IT CANNOT BE, IN OTHER WORDS I'LL GIVE YOU AN EXAMPLE,
LET'S SAY SAY, FOR EXAMPLE, IN THE C A CASE, IN THE C A CASE WITH DR. BENT AND IT WAS
A HORRIBLE OUTCOME AND TERRIBLE THING, MAYBE EVEN A CRIME, DR. BENT DESTROYED THOSE DOCUMENTS.
THAT'S NOT SOMETHING THAT CAN BE HIDDEN FROM ANYONE. IT'S SOMETHING THAT CERTAINLY WAS
DISCUSSED, IT CERTAINLY IS SOMETHING THAT WAS PART OF THE D B 2, THAT ROUND TABLE MEMO,
THE DOUCHLT AS I READ THE FACTS OF THAT CASE. AND THERE WERE DISCUSSIONS ABOUT THE FACTS,
WITNESS STATEMENTS AND EVERYTHING LIKE THAT. THOSE WITNESS STATEMENTS THAT ARE IN D B
2 CAN BE DISCLOSED, BUT WITNESSES BE ASKED. CHIEF JUSTICE RABNER: I'M SORRY,
FINISH. ANTHONY COCCA: AT A DEPOSITION, NOT ABOUT WHAT THEY IS HE AT THE
ROOT CAUSE ANALYSIS MEETING BUT WHAT DR. BENT DID OUTSIDE THAT MEETING. CHIEF
JUSTICE RABNER: IF ET WITNESS SAID I DON'T RECALL WHAT I SAID MONTHS AGO OR PERHAPS A
YEAR AGO, THEY STILL DON'T GET THE STATEMENT AS FAR AS YOU'RE CONCERNED, AS YOU UNDER
THE ACT? ANTHONY COCCA: AS FAR AS NOT, AS FAR AS I'M CONCERNED BUT SOFRS
THE BREADTH OF THE ASHTHS THE ABSOLUTE PRIVILEGE, THE INTENTS THE LEGISLATURE, THAT POWER
OF THAT FACT, THE CHILLING EFFECT THAT COMMISSIONER LACEY TALKED ABOUT, SENATOR VI
TAL. RAB RB I THINK THAT'S A NO, THEY DON GETS IT. LET ME PT ASK YOU TO TELL ME IF YOU
THINK THIS A PROTOCOL THAT A HOSPITAL COULD DEVELOP, YOU HAVE AN INCIDENT THAT TAKES
PLACE WITHIN HOURS, THERE'S A VERY BARE BONES MIM LIST REPORT THAT'S PREPARED, AN INTERVIEW
PERHAPS OF ONE WITNESS OR MULT A WITNESS THAT JUST GETS THE SEFRMENTS FACT, THE DATE,
THE TIERJS A SENTENCE OR 2 ABOUT WHAT OCCURRED AND THEN LATER THAT DAY OR THE NEXT DAY,
ANOTHER GUYS OF THE PSA, MORE WITNESS ARE INTERVIEW RS MORE FACTS AND ONLY FACTS ARE
INCLUDED IN A FOLLOW-UP REPORT. DISCOVERABLE, THE FOLLOW-UP REPORT. ANTHONY COCCA:
NO, AND THAT'S EXACTLY WHAT HAPPENED -- WELL -- CHIEF JUSTICE RABNER: HOW
DOES THAT SERVE THE PURPOSE OF THE FACT? WE'RE NOT TALK ABOUT ANALYSIS, WE'RE TALKING
ABOUT PURE AND SIMPLE FACTS. ANTHONY COCCA: SURE, THEN IT GOES BACK TO
THE VERY FOUNDATIONS AND UNDERPINNINGS OF THE PSA. AND THERE WAS DISCUSSION IN THAT HEARING
AND I REMEMBER THEIR REFERENCE A STAR LEDGER ARTICLE FROM 2003 OR 2004 WITH MEDICAL
ERRORS, THEY REFERENCED THE CHILLING EFFECT THAT PEOPLE WERE RELUCTANT TO TALK ABOUT THESE
INCIDENTS. IT REFERENCES NEW JERSEY BEING ONE OF 21 STATES THAT DIDN'T HAVE A PATIENT
SAFETY ACT AND NOW WITH THE PASS SECHT ACT NEW JERSEY HAS ONE OF THE MOST ROBUST AND COM
PREHENSIVE PATIENT SAFETY ACTS. JUSTICE PATTERSON: WAS IT A LEGISLATURE
INTEPGS THAT IN ORDER TO AVOID A CHILLING EFFECT GIVE THE CAN YOU TELL LEN HISTORY AND
PERHAPS ON THE SMIVENTS AS WELL, THE FACT THAT CERTAIN WILT NECESSARY CAME FORWARD AND
PROVIDED INFORMATION ITSELF SHOULD BE KEPT FROM DISCOVERY? ANTHONY COCCA:
I THINK THAT THE, PART OF THE PURPOSE OF THE ACT WAS TO ENCOURAGE CANDID AND PEOPLE BEING
FORTHRIGHT AND NOT HAVING TO HAVE THEIR, NOT HAVING TO HAVE THE FEAR THAT IF THEY DO COME
TO A MEETING AND TALK ABOUT THINGS THAT THAT MIGHT LATER BE USED GEPS THEM IN A PUNITIVE
WAY AND TO NOT FOSTER THAT PUNITIVE, ENVIRONMENT. JUSTICE PATTERSON: I REMEMBER
THAT FROM THE LEGISLATIVE HISTORY. BUT TO WHAT EXTENT AND DID THE LEGISLATURE AND TELL
ME IF I'M WRONG ABOUT THIS, DID THE LEGISLATURE EVER SAY THE FACT THAT A PARTICULAR NURSE
SAW A PARTICULAR THING AND THAT NURSE'S DEPARTMENT AT THE IS JUST OFT TABLE FOR
DISCOVERY? I DIDN'T THINK THAT WAS. ANTHONY COCCA: I DON'T BELIEVE THEY
DID. JUSTICE PATTERSON: THEY DIDN'T. ANTHONY COCCA: I DON'T
BELIEVE THEY DID. MAT PAT SO THE NURSE PROVIDES FACTS, HYPE THET CLEESHGS AS TO WHOA SEEN
AND SO FORTH, AND THOSE FACTS ARE DISCOVERABLE, ARE THEY NOT? ANTHONY COCCA:
THOSE FACTS ARE DISCOVERABLE INDEPENDENT AND OUTSIDE THE P SMENT A PROCESS, SO BACK TO
JUSTICE WAINER APTER'S COMMENT THAT INTERROGATORY QUESTION ASKS FOR AN INVASION OF THE
PSA. JUSTICE PATTERSON: I THINK THIS IS A FORM OF INTERROGATORY, IS IT NOT?
THE STATEMENT? ANTHONY COCCA: I BELIEVE IT MAY HAVE BEEN. WHAT NUMBER?
JUSTICE PATTERSON: HERE IS MY QUESTION. JUSTICE WAINER APTER:
C 5. JUSTICE PATTERSON: IT'S A IF, THAT SAME INFORMATION WAS SOUGHT WITH
AN INTERROGATORY THAT SAYS, WHICH SLS A STAND DASHED INTERROGATORY THAT SAYS WHO HAS
RELEVANT INFORMATION, DESCRIBE WHAT THE REL VEPT INFORMATION WAS, WITHOUT REFERENCE TO
STATEMENTS WHICH I SEE IS THE BASIS FOR THE OBJECTION HERE, THAT'S A FACT THAT NURSE X
TOLD AN INVESTIGATOR A PARTICULAR FACT OR HAS SAW A PARTICULAR EVENT IS DISCOVERABLE,
IS IT NOT? ANTHONY COCCA: IT CERTAINLY IS NUT IT'S NOT DISCOVERABLE WITHIN
THE CONTEXT OF THE PSA, THAT'S NUANCE AND THLTHS WHAT SEEMS TO THE BEST LOST ON LITIGATORS.
JUSTICE PATTERSON: WHAT I'M SUGGESTING TO YOU, WHAT STRUCK ME IN READING
THE RECORD IS THE FIGHT IS OVER AN INTERROGATORY THAT ASKED FOR STATEMENTS, WHO GAVE
STATEMENTS, BUT IF THIS WERE THE SAME INFORMATION WAS SOUGHT WITH STANDARD REL VEN, WHO
HAS RELEVANT INFORMATION AND PROVIDE A SUM ROW THAT RELEVANT INFORMATION, YOU WOULD NOT
HAVE A PSA OBJECTION, WOULD YOU? ANTHONY COCCA: MAYBE NOT BUT THAT DOESN'T,
GOING BACK TO THE, TO THIS APPEAL, THIS APPEAL DIDN'T INVOLVE THE PROCESS. THIS APPEAL
DIDN'T INVOLVE THAT PARTICULAR ISSUE. THIS APPEAL INVOLVED I NEED FACTS, I DON'T KNOW
WHAT HAPPENED TO MRS. KEYWORTH, I DON'T KNOW WHAT HAPPENED TO MRS. BENDER. I NEED THOSE
FACTS FROM THE PSA. THAT'S THE SCOPE OF THIS APPEAL. IT MAY HAVE CHAFRMGED A I WILL
BIT. JUSTICE WAINER APTER: NOT FROM PATIENT SAFETY VR PSA THOUGH, I THOUGHT
KOUP SILL WAS SAYING, IT SEEMS LUKE YOU'RE PUTTING, FIRST IT SEEMED LIKE YOU SAID FACTS
ARE DISCOVERABLE IF THEY'RE OUTSIDE THE PSA BUT THEY'RE NOT DISCOVER RABL IF YOUR IN INSIDE
THE PASS BUT THEN THE SEED LIKE A FACT EVERY FACT IS ALWAYS IN THE PSA. BECAUSE HERE
WHEN COUNSEL ON THE OTHER SIDE SAYS I WANT TO KNOW WHAT HAPPENED TO THEETS TWO CLIENTS,
THAT'S NOT WITHIN THE SCOPE OF THE PSA, THEY WEREN'T HARMED BY THE PSA COMMITTEE. THEY
SUFFERED AN INCIDENT AND THE FACTS HAVE NOTHING TO DO WITH THE PSA. THAT'S WHY IT'S
JUST NOT CLEAR, WHEN IS A FACT TO YOU OUTSIDE THE PSA? THESE WEREN'T. ANTHONY
COCCA: WELL, THAT'S AN INTERESTING QUESTION, BUT OF COURSE NECESSARILY BEGS THE QUESTION,
WHEN THE PSA PROCESS STARTS AND WHEN YOU ASK A QUESTION LIKE GIVE ME THE STATEMENTS THAT
WERE CALLED OR DEVELOPED WITHIN THE PSA PROCESS. JUSTICE WAINER APTER:
THE INTERROGATORY DID NOT SAY THE WORD PSA ANYWHERE. ANTHONY COCCA:
RIGHT. JUSTICE PATTERSON: YOU'RE SAYING THE ONLY STATEMENTS WERE MADE UPD
THE PSA PROCESS. ANTHONY COCCA: MADE BIN THE PSA PROCESS, THAT'S PROBLEM.
JUSTICE WAINER APTER: YOU'RE SAYING THAT ALL FACTS WERE ALWAYS MADE WITHIN
THE CONTEXT OF THE PSA PROCESS. ANTHONY COCCA: WHAT I'M SAYING
FOUNDATIONALLY IT BEGS THE QUESTION WHEN WERE THOSE STATEMENTS MADE AND IN WHAT CONTEXT
WERE THEY NAD IN RNGS IF YOU START TO DIG NO THE PSA PROCESS MEANING, IF YOU GET THOSE
STATEMENTS AND THOSE STATEMENTS ARE ONLY MADE IN THE CONTEXT OF THE PSA --
JUSTICE SOLOMON: WHO DECIDES IF THEY'RE MADE IN THE CONTEXT OF THE PSA? ANTHONY
COCCA: I THINK WHEN THAT MEETING STARTS. JUSTICE SOLOMON: WHO DECIDES THAT,
WHAT MEETING START. ANTHONY COCCA: THE FACILITY, THE. JUSTICE
SOLOMON: THE FACILITY SAYS. JUSTICE SOLOMON: FACILITY SAYS I ASK YOU A
QUESTION ABOUT ALL THE RECORDS SAY IS MS. SO-AND-SO WAS IN ROOM 102. SO-AND-SO WAS
FOUND ON THE FLOOR AND SO-AND-SO WAS TAKEN TO THE HOSPITAL WITH FRACTURES AND INJURIES.
IT SAYS NOTHING ELSE. APPARENTLY BUT THERE WERE WITNESSES, NOTHING ELSE IS SAID. EVERYTHING
THAT IS SAID IS, ACCORDING TO THE EN INSTITUTION, SAID IN CONNECTION WITH THE PSA PROCESS,
NOT IN THE MEDICAL RECORDS, NOT IN THE REPORTS, NOWHERE TO BE DISCLOSED, BUT THE INSTITUTION
SAYS NONE, AS SOON AS WE FINE THE PATIENT ON THE FLOOR, IT'S PART OF THE PSA PROCESS,
VEN YOU'RE SAYING THAT'S RIGHT, THAT'S PROTECT, THAT'S NOT DISCOVERABLE, THAT'S PRIVILEGED,
DOEK THAT'S NOT NECESSARILY WHAT SIEM SAY, I'M NOT SAYING WHEN YOU FIND SOMEBODY ON THE
FLOOR THAT'S WHEN THE PSA PROCESS STASHTHS I'M SAYING, IT STARTS WITH THE GENERATION OF
A, ETS CAN BE WITH A GENERATION. JUSTICE SOLOMON: LITS SEN TO MY FACTS.
COKE KK I'M SORRY. JUSTICE SOLOMON: LISTEN TO MY FACTS.
ANTHONY COCCA: YES, SIR. JUSTICE SOLOMON: THE MALE RECORDS SHOW THE PATIENT
IN 102 WAS SEEN, LET ME MAKE IT MORE SPECIFIC, IN BED AT TEP CAN CLOCK P.M. WHEN WE DID
THE CHECK. AT TEP:15 SHE'S FOUPDZ ON THE FLOOR, SHE'S TAKEN TO HOSPITAL WITH ABC INJURIES,
SAYS NOTHING ELSE. DOESN'T SAY IF HER ROM MATE SAW IT, DOESN'T SAY IF THE DOCTOR SAW
IT, DOESN'T ANY IF ANYBODY THREW HER OUT OF BHED. IT SAYS NOTHING. THEY SIMPLY WANT
TO KNOW WHO SAW IT, THE AND INSTITUTION CAN SAY NO, NO, THE DISCOVERY OF HOOF WITNESSED
IT WAS DURING THE PSA PROCESS AND IT IS NOW PRIVILEGED, EVEN THOUGH THAT INFORMATION IS
NOWHERE IN THE MEDICAL RECORDS, ANYWHERE ELSE, AND THEY CAN'T GET IT FROM ANYBODY. YOU'RE
SAYING, NO, THEY CAN'T, BECAUSE WE SAID IT'S PART OF THE PSA PROCESS. WHO SAW IT, WERE
GUARD RALES UP, NOT UP, WHO SAW WHAT. COKE COCK I THINK THE ANSWER TO THAT QUESTION IT
WOULD BE PRIVILEGED. JUSTICE SOLOMON: THAT'S ALL I'M ASKING.
ANTHONY COCCA: IF YOU GIVE ACE MEANING 0 I 0 DOCUMENT, TOERLS OR INFORMATION RECEIVED,
NOT RECEIVED BY THE DEPARTMENT, BUT THAT'S IN THE CASE OF A REPORTING, BUT ANY INFORMATION
DEVELOPED -- JUSTICE SOLOMON: YOU'RE SAYING IT'S PRIVILEGED 1 THE
INCONSTITUTION SAYS, SAYS IT WAS PART OF THE PSA PROCESS? ANTHONY COCCA:
KRET. IF THAT NURSE, I'M SORRY, I MISSED WHAT YOU SAID. JUSTICE WAINER APTER:
THEY DON'T HAVE TO SFA SATS A PART OF THE MASS COULDN'T VEENG PSA XHLT TEE WHERE THEY
THANK ANY STATEMENT, THEY CAN STEAK THE STATEMENT AND ANY BY THE WAY THAT THOSE STATEMENTS
ARE PART OF THE PSA PROCESS, CORRECT. ANTHONY COCCA: NO, THE #35S PROCESS
HAS TO BE CONVENED AND THAT'S THE INITIATION, THAT'S WHAT I STARTED TO SAY EARLIER, I'M
BY AN INCIDENT REPORT OR BY A FORMAL LIKE ROUN TABLE SIT DOWN. JUSTICE SOLOMON:
LET'S SPLIT THAT HAIR THEN. SHE FALLS OUT OF BED, AELLY BECAUSE HE WAS IN BED AT 10 CAN
CLOCK, IS ON THE FLOOR AT 10:30 RGS TEP:15, SHE FALLS OUT OF BED, THERE'S AN INCIDENT
REPORT PREPARED THAT INDICATES HO SAW WHAT RPGS WHO DID WHAT. OF IF THE EXISTENCE, THE
COMMITTEE HASN'T HAD TIME TO MEET, JUST HAPPENED AT 3:00 IN THE MORP, NOBODY HAS BEEN
CALLED, NOBODY CONVENED, NOTHING, THIS REPORT EXISTS, IS THAT REPORT THE BEGINNING OF THE
PSA PROCESS AND THEREFORE PRIVILEGED? ANTHONY COCCA: YES THAT, REPORT IS.
IT WOULD ALSO BE CHARTED, HOWEVER. JUSTICE SOLOMON: LET'S SAY IT'S NOT.
JUSTICE WAINER APTER: NNL CASE, FOR EXAMPLE, THERE WAS A QUESTION WERE THERE
BED RAILS, SOMEONE ASKED WERE THERE BED RAILS AND IT WASN'T IN THE CHART IF THERE WERE
OR WERE NOT BED RAILS, BUT YOU'RE SAYING WHETHER OR NOT THERE ARE BED RAILS WERE PRO TEKTD
UNDER THE PSA? ANTHONY COCCA: WHETHER OR NOT THERE WERE BED RAILS, IF IT
WAS DEVELOP THE EXCLUSIVELY WITHIN THE PSA AND IT'S INFORMATION OR DOCUMENT OR INFORMATION
THAT'S CONSIDERED ISN'T THE PROCESS OF THAT ANALYSIS RGS THEN IT WOULD BE PROTECTED,
CERTAINLY THE NURSE CAN BE ASKED, HAPPEN AP THE NURSE HEY NOT REMEMBER AND THEY CAN'T BE
SHOWN THEIR STATEMENT WHERE THEY SAID THERE WERE BED RAILS, IF THEY SAID NO, THERE WERE
NO BED RAILS, CORRECT? ANTHONY COCCA: CORRECT, P THAT'S WHEN WE GE BAB,
THAT'S WHAT THE THE LEGISLATURE SAID, THAT'S WHAT THE SLOICH INEPDZ T, I DON'T THINK THERE
COULD BE AN SAUF 10 FLG SOFTENING OF THAT. JUSTICE NORIEGA: ANY TIME THE
PSA PROCESS IS CONVENED AND EVERYTHING THAT WAS DONE LEADING UP TO THAT WILL BE INCLUDED
AND PRIVILEGED? ANTHONY COCCA: NO, I'M NOT SAYING YOU CAN BOOTSTRAP ANYTHING
INTO THE PSA PROCESS, THAT'S COMPLETELY TOO BROAD. NO. JUSTICE NORIEGA:
THAT'S EXACTLY WHAT YOU'RE SAYING WAUNS THE PSA PROCESS ONCE STARTS THE EVEN EVEN THE
STATEMENT AT THE BEGIN THAT DIDN'T INITIATE THE PAGS IS PRIVILEGED. COCK KOK.
(WHEREUPON, AN OFF-THE-RECORD DISCUSSION TOOK PLACE.) (WHEREUPON, AN
OFF-THE-RECORD DISCUSSION TOOK PLACE.) IT JUST SEEMS HIGHLY UNLOOKLY THAT 0 A RES DEPARTMENT
IN ONE OF THESE FACILITIES GETS JUSHGSD A VERY BAD INJURY AND THERE'S KNOWS DISCUSSION,
NIERS CONVERSATION, THERE'S NOT IP TESTIFY VIEWING OF THE PEOPLE IN THE FACILITY TO
DETERMINE WHAT HAPPENED UNLESS THE PSA PROCESS HAS STARTED, IT SEEMS LIKE YOUR ARGUMENT
IS, IT SEEMS LIKE YOU'RE SAYING NOT, YOUR SAYING THAT YOU'RE NOT, YOU CAN'T BOOTSTRAP
EVERYTHING INTO THE PSA TRO SAYS BUT THE EVERYTHING WE'RE TALKING BOUG EVERYTHING
LEADING UP TO THE MOMENT WHEN THE COMMITTEES CONVENED AND PROSHLY AN OFFICIAL INCIDENT
REPORT IS GENERATED. PRIOR TO THAT, THERE ARE DISCUSSIONS, THERE HAS TO BE DISCUSSIONS,
THERE HAS TO BE INTERVIEWS WITH EMPLOYEES TO DETERMINE WHAT HAPPENED BECAUSE SOMEONE WAS
HURT. DOWN? ANTHONY COCCA: WELL, THERE MAY NOT BE, BUT AGAIN.
JUSTICE PIERRE-LOUIS: HOW ARE THEY PART THE PSA PROCESS. HOW DO THEY BECOME PART OF THE
PSA PROCESS, IS IT ONLY IF IT'S TRANSCRIBED IN AN INCIDENT REPORT? ANTHONY COCCA:
IF IT'S PART OF THE, IF IT'S THE HEAD OF THE PROCESS, LET'S SAY RISK MANAGER, LET'S SAY
IT'S THE HEAD OF THE QAPI P COMMITTEE FAS CLOCH THE ONLY BS THE SUPERVISOR THERE, A MANAGE
E THAT ASKED QUESTIONS OF THE, A NURSE, OF THE SOMEBODY ELSE THAT WAS NEARBY, OF OTHER
RESIDENTS, WHAT HAPPENED, IS THAT PART OF THE PSA PROCESS. COOK. ANTHONY COCCA:
PROBABLY NOT, PROBABLY NOT. CHIEF JUSTICE RABNER: LET'S STEP BACK FOR A
SEJD, STATUTE HAS AN IMPORTANT PURPOSE TO FOSTER CANDID, PROBING, THOUGHTFUL ANALYSIS
OF WHAT HAPPENED, WHAT WENT WRONG SLOW WE CAN MAKE SURE THAT STEPS ARE PUT IF PLACE TO
PREVENT THAT FROM TAKING PLACE IN THE FUTURE. I WANT YOU TO ADDRESS HOW
WE GAR AGAINST AN BUS. IN THIS NOT A 93 FAR YUS ABUSE, YOU CAN HAVE GENERAL COUNSEL IF
I UNDERSTAND YOUR ARGUMENT, PUT ALL THE STAFF AND DOCTORS TOGETHER IN A ROOM AND SAY LISTEN,
THIS IS WHAT WE'RE GOING TO DO GOING FOR FOR THESE KIND OF INCIDENTS, WORRY GOING TO HAVE
A BARE BONES QUICK INCIDENT REPORT THAT'S BREE PAIRED AND EVERYBODY GETS TO SEE THAT SUBJECT
TO DISCOVER LEE, BUT THEP WE'RE HE GOING TO HAVE A MUCH MORE THOROUGH OF COMPREHENSIVE
PSA INVESTIGATION THAT'S CONDUCTED, AND THAT WILL NOT GET DISCOVERED. HOW
DO WE GUARD AGAINST ABUSE OF WITHHOLDING FACTS NOT THE ANALYSIS THAT THE PSA IS DESIGNED
TO FOSTER? ANTHONY COCCA: WELL, I THINK THAT THE, WE HAVE TO IN PART TAKE
IT ON THE GOOD EN TENT OF THE HEALTHCARE PROVIDERS WHO ARE TRYING TO PROVIDE GOOD
CARE, IF I UNDERSTAND YOUR QUESTION, AND I DON'T SEE FRANKLY THIS, AGAIN NEFARIOUS INTENT
ASIDE, DWRO SEE AS WAS STATED AS EXPERIENCE THAT HOSPITALS ARE NOT COMPLYING, THEY DON'T
HAVE SEPARATE COMMITTEES, THAT'S NOT MY EXPERIENCE AT ALL. IN FACT MY EXPERIENCE --
CHIEF JUSTICE RABNER: JUST THE BASIC SITUATION THAT YOU HAVE SIMPLE FACTUAL
STATEMENTS THAT ARE SHORTENED TO THE POINT THAT ARE NOT GETTING TO THE OTHER SIDE. THAT'S
THE CONCERN. ANTHONY COCCA: RIGHT. SO I THINK THE CONCERN AS THE CURRENT
PSA IS STRUCTURED THAT, CONCERN IS ADDRESSED BY THE PSA IF IT'S INFORMATION THAT'S DEVELOPED
IN THE CONTEXT OF THE PSA. I MEAN I UNDERSTAND THE PROBLEM RS AND I UNDERSTAND THE STRUGGLE
BUT I ALSO UNDERSTAND THE STRENGTH OF THE PSA PROCESS AND THE PSA STATUTE. AND I THINK
THAT -- JUSTICE WAINER APTER: OOJ YOU WERE ANSWERING THE QUESTION OF UPG
IT'S WITHIN THE PSA BECAUSE THE QAPI, ASSESSMENT AND INASSURE, THE QUALITY ASSURANCE AND
PERFORMANCE IMPROVEMENT PLAN SAID THAT IT WAS. YOU SPECIFICALLY MENTIONED THE QUALITY
ASSESSMENT PT AND ASSURANCE COMMITTEE AND THE KWARD QAPI. BUT BOTH OF THOSE ARE FEDERAL
REQUIREMENTS THAT HAVE NOTHING TO DO WITH THE PSA. SO HOW CAN WE KNOW --
THE DO YOU AGREE THAT THE PSA PROCESS IS SEPARATE FROM QAPI AND KWOK. ANTHONY
COCCA: FOOR HOSPITAL IT SHOULD BE, FOR ALONG TERM CARE FACILITY IN THE DOCUMENTS AND HERE
TODAY CALLED A NURSING HOME, IT'S LIKE THE DEEM MER STATUTE, LET'S SEE, 12, NOT 12, BUT
THE OF 843 E 10.2 THROUGH A-3 -- JUSTICE WAINER APTER: CAN YOU SAY IT AGAIN.
ANTHONY COCCA: IN J A YES 8:43E-10.2 TITLED SCOPE, A-3 INDICATES FOR
LONG-TERM CARE FACILITY, VEN THAT'S MRS. KEYWORTH'S FACILITY, MRS. KEY WORNL'S
FACILITY THERE WAS AN ISSUE MADE WITH THE FACT THAT THEY WERE REQUIRED TO REPORT AND COMPLY
WITH THE FEDERAL STATUTES AND THAT IS, THAT VOI LATES THE EXCLUSIVITY TEST OF THE PSA
AND THAT WAS DISCUSSED IN C A BY JUSTICE PATTERSON. BUT TO ADDRESS THAT,
THE REGULATION THGS WERE IMPARTED OR PASSED AFTER, NOT AFTER C A BUT AFRT EVENTS IN Y
A AND THETS TEVEN.2 A-3 TALK ABOUT FOR LONG-TERM CARE FACILITIES, WITH RESPECT TO MANDATORY
REPORTING REQUIREMENTS, PROVIDED THOSE LONG-TERM CARE FACILITIES REPLY OR REPORTED COMPLIANCE
WITH THAT HAD APPLICABLE FEDERAL AND STATUTE STATUTES, THEY'RE DEEMED IN COMPLIANCE WITH
84310.6 WHICH IS THE REGULAR REG. JUSTICE WAINER APTER: THAT SEEMS TO BE
WHY, BUT THAT ACTUALLY I THINK IS WHAT HURTS YOU, NOT WHAT HELPS YOU. BECAUSE THAT IS
SAYING THAT YOU ARE COMPLYING WITH THE FEDERAL REGULATION RS NOT THE PSA, THE DOH HAS
SAID YOU ACTUALLY DON'T HAVE TO SEPARATELY COMPLIESHGS EACH THOUGH COMPLIANCE WITH THE
PSA GENERALLY MUST BE SEPARATE, AND THARTS HAD A PART OF THE REG WHERE IT IS IN J AC 8:43E
-10.4, THE PATIENT OR RESIDENCY COMMITLY SHALL NOT COULDN'T STUT A SUBCOMMITTEE HE HAVE
T ANY OTHER COMMIT TI WITHIN A FACILITY HOR HEALTHCARE SYSTEM AND THE PRIVILEGE REGS
OWN THE IF IT'S DEVELOPED WITH A HEALTHCARE COMMITTEE EXCLUSIVELY DURING THE PERIOD OF
SELF-CRITICAL A MAL IS, THE DOH IS HE HE HAD THE PSA CAN NOBT THE SAY THAT AS THESE ON THE
COMMITTEES AND ONLY MG THAT IS EXCLUSIVELY PRO VOID WITHIN THE PSA PROCESS AND NOT THESE
ON THE PROCESS SEES IS PRIVILEGE THE, BUT UFT JUST ADMITTED THAT THAT FOR THE NURSING
HOMES OR PT I THINK LONG-TERM CARE FACILITIES, WHICHEVER WE WERE USING, THEY'RE ACTUALLY
ABIDING BY THE FEDERAL REGULATIONS AND THEY'RE NOT SEPARATELY ABIDING BY THE PSA BECAUSE
THE DOH HAS SAID THAT THAT'S FINE. UCHT THE FEDERAL REGULATIONS, NONE OF
THIS IS PRIVILEGED. THERE'S A CASE FROM THE 3RD CIRCUIT YOU? WISH HOME OF EASTERN
PENNSYLVANIA VERSUS CENTERS FOR MEDICARE AND R MEDICAID SERVICE, 3RD CIRCUIT SAID NIP OF
THIS IS PRIVILEGE THE, THE COMMITTEE'S RECORDS, THEY'RE INTERNAL, WOK PAPERS, THEIR
STATEMENTS OF COULDN'T CLOUGSS ARE PRIFRED, BUT NOT MATERIAL SUBMITTED TO THE COMMITTEE,
INCLUDING A EVENT REPORT FORPS, WITS IN ENTER VIEW STATEMENT, ET SECHLT SO IF ALL OF THIS
IS CREATED FOR PURPOSES OF THE KWOK AND IS NOT PRIVILEGED, HOW CAN YOU SAY NO THIS WAS
NOT CREATED FOR PURPOSES OF THE KWOK, THIS WAS ACTUALLY ONLY CREATED FOR PURPOSES EX
CLUE CIVIL OF THE PSA AND THEREFORE IT IS PRIVILEGED BECAUSE THE PSA HAS A PRIVILEGE
EVEN THOUGH THE KWOK DOESN'T? ANTHONY COCCA: SO I THINK AS A STARTING
POISON, I THINK DEEMING THE LONG-TERM CARE NURSING HOME FACILITIES IN COMPLIANCE WITH THE
PSA, IF THEY COMPLY WITH THE FEDERAL ACT MEANS JUST THAT RGS AND THAT IS ALL THEY HAVE TO
DO IS COMPLY WITH THE FEDERAL TACHTS, WE'RE NOT HE GOG TO MAKE THAT CREATE ANOTHER PARALLEL
SET OF REQUIREMENTS AND DO ANOTHER SEPARATE PSA. JUSTICE PATTERSON: DOES
THAT MEAN THAT YOU ARE, IF YOU COMPLY WITH THE FEDERAL STATUTES AND REGULATION, YOU HAVE
SATISFIED YOUR REGULATORY BURDEN, OR DOES THAT MEAN IF YOU COMPLY WITH THE FEDERAL STACHS
AND REGULATIONS, YOU GET ALL THE PROTECTIONS THAT YOU WOULD GET BY COMPLYING WITH THE
PSA? BECAUSE THOSE ARE TWO VERY DIFFERENT THING, ARE HE THEY NOT. ANTHONY COCCA:
IT'S THE LATTER, IF YOU COMPLY, YOU RAP AP MANY ONLY FOR PUPS OF THE PSA AND NOT FOR ANY
OTHER PURPOSE TO GET THIS PSA PURCHASE IT EVEN SAYS THAT IN THE STATUTE THERE'S LOTS OF
ON THE REQUIREMENTS ON YOU, AND YOU STILL HAVE TO FULFILL ALL THOSE REQUIREMENTS, AND
THE PSA IS OPENLY MAKING PRIVILEGE SOMETHING THAT YOU ONLY DO FOR PURPOSES OF THE PSA
AND NOT EVER FOR PUFRPS ANYTHING ELSE. ANTHONY COCCA: THAT'S THE ONLY THING
I CAN SEE AND I WOULD URGE THE COURT TO INTERPRET ET THAT'S THE ONLY THING THAT DEEMED
IN COMPLIANCE WITH THE PSA COULD POSSIBLY MEAN, AND WITH REFERENCE TO JEWISH HOME, THE
ISSUE IN THAT CASE DIDN'T EVEN INVOLVE, IF I'M NOT MISTAKEN, THE ISSUE IN THAT CASE WAS
A PRETTY, WAS SLIGHTLY DIFFERENT. IN OTHER WORDS, WHAT THE THE J M E P OR THE JEWISH
HOME DID IN THAT CASE WAS THE TRIED TO PREVENT THE PENNSYLVANIA DEPARTMENT OF HEALTH FRPT
USING THE INTERNAL INVESTIGATIVE DOCUMENTS BECAUSE THEY SAID THAT THEY WERE PART OF A
QUALITY ASH SHURPS COMMITTEE. BUT IN THAT 666 NE F 3, S 3RD 362, THE DORT
GOES ON TO SAY THAT THE DOCTOR'S AFFIDAVIT UPON WHICH THE JEWISH HOME EMPHASIZES DOES
NOT EACH STATE THAT THE EVENT REPORTS IN THAT CASE AND THE EVENTS WERE CREATED AT THE
DIRECTION OF THE QUALITY ASH SHURN XHT TEE, THAT'S NUMBER 1, AT THE TIME OF THE ACCIDENT
A STARTING POISON IT DOES THAT EVEN. CHIEF JUSTICE RABNER: WE'RE YELLON
THE TIECHL HAD YOU FOR AND WE NODE THO WRAB WRAP YOU THE ARGUMENT IS THERE ANYTHING YOU
WOULD LOIK TO ADD IN CLOSING? ANTHONY COCCA: THE OHM OTHER THING I WOULD
LOIK TO ADD IN WITH RESPECT TO THE CLOEVENG WITH RESPECT TO THE FEDERAL REQUIREMENTS AND
WHAT I JUST INDICATED, AS I PT WAS STARTING TO SAY, THE JEWISH HOME CASE INVOLVES AN A
NALYSIS OF QUALITY ASSURANCE DOCUMENTS THAT WERE CLAMENTD TO BE QUALITY ASSURANCE DOCUMENTS
BUT THAT QUALITY ASSURANCE PROCESS WASN'T EVEN TRIG DPERD BECAUSE THE PROCESS UNDERTAKEN
IN THAT CASE WASN'T ADMITTEDLY BY THE DEFENSE IN THE CASE WAS NOT STARTED OR INITIATED
BY THE QUALITY ASSURANCE PROCESS. AND SEKDZLY, THAT WAS A STATE ACTION SO
IT'S COMPLETELY DIFFERENT THAN I THINK A PRIVATE ACTION. IN OTHER WORDS THE JEWISH HOME
WAS TRYING TO FIGHT A FINE WERE THEY GOT FINED BASED ON THEIR REVIEW. CHIEF
JUSTICE RABNER: THANK YOU, COUNSEL. THANK YOU AND I THANK YOU THE COURT FOR YOUR TIME.
CHIEF JUSTICE RABNER: NR LIEU WITHIN. CAN YOU HELP US OUT HERE. LEWIN.
ROSS A. LEWIN: THERE'S A LOT TO COVER, MR. CHIEF JUSTICE AND I'LL TRY TO BE
FOCUSED. BUT I THINK WE HAVE TO REMEMBER THAT THE PATIENT SAFETY ACT IS NOW 20 YEARS
OLD, IT'S BECOME AN ESSENTIAL PART OF THE SAFETY CULTURE OF HEALTH KARN INSTITUTIONS AND
IT'S WORKED INCREDIBLY WELL. IF IT APT BROKE, YOU DON'T FIX IT. IT IS
DIFFERENT THAN A LOT OF THE OTHER QUALITY PROGRAMS THAT HAVE BEEN DISCUSSED DAN I'LL GET
INTO THAT IN A MIVENT, BUT IT'S EVENT DRIVEN. THERE'S AN ADVERSE EVENT AND THERE'S A
DEEP ANALYSIS OF THE EVENT TO TRY AND DEFINE WHAT IMPROVEMENTS MIGHT BE DEVELOPED. THAT WAS
UNIQUE. CHIEF JUSTICE RABNER: IF THE ACT IS USED IN A WAY THAT PREEPTS
BASIC FACTS FROM BEING DISCLOSED, DOES THAT SUGGEST THERE MIGHT BE A BIT OF BREAKAGE THAT
NEEDS TO BE ADDRESSED? ROSS A. LEWIN: THE TACT WAS IF YOU WERELY MANY
DEVELOPED TO SAFEGUARD, IN THE PATIENT SAFETY ACT PROCESS AND TO THE EXTENT AND TO A CHIEF
A PURPOSE THAT YOU ALLUDED TO MOMENT AGO WHICH WAS TO ENSURE PEOPLE THAT MIGHT OTHERWISE
BE SUBJECT TO DISCIPLINE ARE BE WORRIED ABOUT MALPRACTICE LIABILITY WOULD BE FORTHRIGHT
AS TO WHAT HAPPENED. CHIGS IN OTHER WORDS LACEY PLAYED THAT LUTLY CLEAR AND YOU WARNED
AND IT'S IN THE C A DECISION QUOTED THAT IF THE FACT THE GET OUT AND THE TRUST IS BROKEN,
THE PROCESS WON'T WORK. AND SO THE, A LOT OF THE ISSUES THE COURT IS DISCUSSING TODAY
ARE WHETHER THERE'S FACTS OUTSIDE THE PSA PROCESS OR WITHIN SOME OTHER REGULATORY PROCESS
THE, BUT TO THE EXTENT THAT THEY ARE FACTS THAT ARE DEVELOPED IN THE CONTEXT OF A THE
ROOT CAUSE ANALYSIS AND THE PSA PROCESS, THE STATUTE SAYS THEY'RE PRIVILEGED, THE FACTS
ARE NOT PRIVILEGED, THE FACTS ARE NEVER PRIVILEGED. THE CONVERSATIONS, THE
COMMUNICATIONS ARE PRIVILEGED, AND YOU HAVE TO DPET THE FACTS THROUGH SOME OTHER MEANS.
THAT'S THE POT LINE. JUSTICE PATTERSON: THE FACT THAT THE INDIVIDUAL HAS
MADE THE STATEMENT IS LTS PRIVILEGED, AM I CORRECT ABOUT THAT, THE FACT THAT THE
INDIVIDUAL HAS COME FORWARD AND SAID THIS IS WHAT I SAW? PT. ROSS A. LEWIN:
YES AND I THINK THAT'S ALSO REFLECTED IN THE CONDEMN REPORTING COMPONENT WHICH WE HAVEN'T
DISCUSSED TODAY. JUSTICE PATTERSON: ARE PEOPLE WHO ARE, WHO DISCLOSE INFORMATION
PURSUANT TO THE PSA ASSURED OF CONFIDENTIALITY? ROSS A. LEWIN: I CAN'T
SPEAK AT EVERY EN INSTITUTION BUT THEY SHOULD BE, AND IF THAT'S THE WHOLE POINT.
JUSTICE PATTERSON: THAT WAS WHY ENVISION THE BY THE LEGISLATURE. ROSS RAS AND THAT WAS
EX SPREF IN THE C A CASE RS VEN THE MEETING IN THAT CASE STARTED WITH THE HEAD OF PATIENT
SAFETY SAYING, WHATEVER YOU SAY HERE STAYING WITHIN THESE WALLS. JUSTICE
WAINER APTER: I UNDERSTAND THAT WITHIN A CONTEXT OF A PSA MEETING WHERE POEBL ARE CALLED
TO TESTIFY BEFORE A COMMITTEE AND THEY'RE AP HOOERN POERN HAS TO BE CONFIDENTIAL BUT WORRY
TALK BOUK SOMETHING SO MUCH MORE BASIC, SOMEONE CALLS, 4 POEBL WITNESS IT. EACH OF THOSE
4 PEOPLE ASKED WHAT DID YOU SEE, HOW COULD THAT POSSIBLY BE CONFIDENTIAL. ROSS
A. LEWIN: IT DEPENDS, THE FACTS ARE NEVER CONFIDENTIAL OF THE THE QUESTION OF WHETHER
OR NOT THOSE FACTS ARE IN A CONFIDENTIAL COMMUNICATION AND SO IF IT'S PART OF THE PSA,
IF IT'S GENERATED AS PART OF THE PSA PROCESS, IT'S PRIVILEGED. JUSTICE WAINER
APTER: AS JUSTICE SOL MONS ASKED, WHO GETS TO SDIETD? ROSS A. LEWIN: WELL,
IT'S ULTIMATELY, OBVIOUSLY FIRST THE THE HOSPITAL OR HAELT MANY CARE FACILITY MAKES A
CLAIM. IF IT'S CHALLENGED WHICH IT WASN'T IN THIS CASE, THEY DIDN'T CHALLENGE THE
PROCEDURE, TO MY KNOWLEDGE, IT WOULD GO TO THE TRIAL JUDGE WHO WOULD, FIRST OF ALL, LOOK
TLT DOCUMENTS, THE DOCUMENT -- JUSTICE WAINER APTER: THAT'S BEFORE THE THE
ANYONE HS ANY FACTS, THE HOSPITAL CAN SAY THIS PART OF THE PSA PO SAYS, THE.
ROSS A. LEWIN: JUST LIKE AN ATTORNEY CLIENTS PRO SESHGS. JUSTICE WAINER APTER:
THIS IS NOT, THE QUESTION WAS NOT, I'M SORRY, IF THE PLAINTIFF IS LOOKING FOR THE FACTS
OF WHAT HAPPENED, YOU SAID THEY STILL, THE HOSPITAL CAN STILL SAY THAT THAT IS PRIVILEGE
THE WITHIN THE PSA PAW THEY CAN SAY IT HAPPENED WITH THAT THE CONTEXT OF THE PSA PROCESS
AND THEY DPET TO DECIDE WHEN THAT STARTS P STOPS? ROSS A. LEWIN: NO, I DIDN'T
SAY THAT, THE FACTS ARE NEVER PRIVILEGED, THE COMMUNICATIONS ARE PRIVILEGED, AND IF THE
FACTS ARE COULD HAVE BEEN TAEND IN A CONDEMN COMMUNICATION, A PRIVILEGED CHOUN OCCASION,
YOU DON'T GET THEM WHETHER IT'S AN ATTORNEY/CLIENT ONE, WHETHER IT'S A STATEMENT
MADE TO A PRIEST. CHIEF JUSTICE RABNER: THERE'S A DIFFERENCE THERE BECAUSE
YOU COULDN'T DEPOSE SOMEONE ABOUT THOSE STATEMENTS ANY MORE THAN YOU CAN GET A
WRITTEN SUMMARY OF THOSE STATEMENTS. HERE YOU CAN GO TO A DEPOSITION AND FOR PRACTICAL
PURPOSES, THE FACTS WILL NOT COME TO LOIT BECAUSE THE PERSON CAN TESTIFY THEY DON'T RECALL
ANYMORE. SO THEY ROMAINE COULDN'T DEVENL BY VIRTUE OF THE FACT THAT THE COMMUNICATION,
AS YOU DESCRIBE IT, WILL NOT BE TURNED OVER, NO? ROSS A. LEWIN: THAT IS
TRUF ANY PRIVILEGE, IT DOESN'T EVEN NEED TO BE A HOSPITAL CONTEXT, HAELT NL CARE CONTEXT.
CHIEF JUSTICE RABNER: IT'S NOT TRUE EVERY PRIVILEGE, IT CANNOT, IF I MAY,
YOU CANNOT SAY TO SOMEONE WHAT DID YOU TELL YOUR LAWYER DURING A DEPOSITION. RAUGS ROSS
YOU CAN'T SAY THAT, BUT BY THE TIME OF THE DEPOSITION YOU MIGHT NOT REMEMBER SMOFT FACTS
YOU SHARED WITH THE LAWYER EVEN IF THEY'RE IN THE LAWYER'S NOTES. IF THAT'S THE CASE,
THAT'S THE NATURE OF A PRIVILEGE. OOP AP JUST TO MAKE IT MORE CONCRETE, KEYWORTH POSITED
THAT THE RECORDS THAT THEY HAD BEEN PROVIDED DIDN'T IDENTIFY WHETHER THERE WAS SIDE RAILS,
WHETHER THE ROOMMATE SAW THE FALL OR MADE ANY STATEMENT ABOUT IT, WET THE NURSES' STATION
WAS STAFFED AT THE TIME AND WHETHER THE WHEELCHAIR HAD AN ALARM T HOW ARE THOSE FOUR
THINGS PT PRIVILEGED BY THE PSA? FROM WHETHER HE THERE WERE PEDESTRIAN RAILS, WHETHER
THE ROOM P HAD MATE SAW THE FALL, WIT THE NURSES' STATION WAS STAFFED AND WHETHER OR NOT
THE WHEELCHAIR HAD AN ALARM. ROSS A. LEWIN: THOSE FAK THE ARE NEVER PRIVILEGE,
THE QUESTION IS WHETHER OR NOT THE DOCUMENTS CONTAINING THE FACTS ARE DUFRD BY THE PART
OF THE ROOT CAUSE ANALYSIS OR PART OF THE PATIENT SAFETY ACT COMPLIANCE. JUSTICE
WAINER APTER: HERE PLAINTIFF NEVER GOT THOSE FACTS, SOMEONE MUST HAVE BEEN AL LECHG THEY
WERE PRIVILEGED. ROSS A. LEWIN: THAT'S ALWAYS POSSIBLE WHEN THE PRIVILEGE
IS ASSERT, THERE MAY BE NAKTS IN A PRIVILEGED COMMUNICATION THAT ARE NOT, THAT A PLAINTIFF
CANNOT SOMEHOW GET AHOLD OF THROUGH THE TRADITIONAL DISCOVERY PROCESSES. AND THAT'S
REFLECTS A LEGISLATIVE JUDGMENT THAT THE IMPORTANT OF THAT COMMUNICATION REMAINING CONFIDENTIAL
IS GREATER THAN THE NEED FOR DISCLOSURE OF THOSE COMMUNICATIONS. CHIEF JUSTICE
RABNER: MR. LEWIN, DO YOU SEE AT POTENTIAL FOR ABUSE AND I DON'T MEAN IT IN A NEFARIOUS
WAY AND IF SO, HOW CAN THAT BE ADDRESSED. ROSS A. LEWIN: I THINK THE QUESTION
THAT NEEDS TO BE ADD DREFRD BY TRIAL COURTS IS WHETHER THE DOCUMENTS THAT ARE BEING
PRESENTED FOR IN CAMERA REVIEW ARE -- JUSTICE PATTERSON: COPE YOUR VOICE
UP. ROSS A. LEWIN: THE DO YOU WANTS PRODUCED AS PART OF THE IN CAP RA
REVIEWED ARE PSA DOCUMENTS, IF THEY ARE, THEY'RE CONFIDENTIAL AND THAT MAY BE EVIDENT
FROM THE DOCUMENT ITSELF ONE WAY OR THE OTHER, IT MAY BE EVIDENT BY K LOOK AT THE PATIENT
SAFETY PLAN OF THE EN INSTITUTION TO SO IF IT'S PART OF THE COMPLIANCE PROGRAM. IT MAY
REQUIRE ADDITIONAL INFORMATION, AS IN PRIVILEGE, ATTORNEY CLIENTS PRIVILEGE SOMETIMES,
THE TRIAL COURTS ASK FOR CERTIFICATIONS TO GIVE A FULLER UNDERSTANDING OF HOW THE DOCUMENT
WAS DEVELOPED AND WHERE IT WAS DEVELOPED. BUT REMEMBER, THE REPORTING OBLIGATION
TO THE DEPARTMENT OF HEALTH IS WITHIN 5 DAYS OF AN INCIDENT. YOU CAN'T SIT AROUND AND
WAIT TO GET THIS COMMITTEE TO GO DO THINGS. THERE HAS TO BE WHAT JUSTICE PATTERSON
REFERRED TO AS STANDING PROTOCOLS. YOU CAN'T COMPLY WITH THE ACTS TIME LINE FRAME IF YOU
DON'T GET START THE ROIT AWAY. JUSTICE PATTERSON: WHEN WE'RE TALKING ABOUT
CONVENING THE STA COMMITTEE, THE COMMITTEE IS A STANDING XHET TEE THAT EX SCISSORS AR, YOU
TONE HAVE A SNIRNTHS A FALL, FRN SAY HAD WOULD BE THE RIGHT PERSON TR THOSE COMMITTEE,
FOR PRACTICAL, THERE'S AN ONGOING COMMITTEE WITH SPECIAL COMMITTAL TEE. ROSS A.
LEWIN: ONE OF THE COMMITTEES RESPONSIBILITY IS TO PULL TOGETHER TEAMS OF RELEVANT PROF
NULTS AND P OTHER STAFF TO THEN DOTS ANALYSIS. SOCIETY ANALYSIS IS NOT NECESSARILY DONE
BY THE COMMITTEE. THAT'S IN THE REGULAR LASHGS IT'S IN THE STATUTE. BUT THERE IS A STANDING
COMMITTEE, IT HAS TO BY REGULATION I THINK AT LEAST MEET QUARTERLY. IT'S NOT LOIK THAT
COMMITTEE IS ABLE TO SPOVEND ON 24 HOURS NOTICE, CONVENE ITSELF EVERY TO MY THERE'S A
FALL IN AN AND INSTITUTION. CHIEF JUSTICE RABNER: COULD THERE BE A PROTOCOL
THAT SAYS INTERVIEW THE MINIMAL LIST AMOUNT OF WIFT NECESSARY PT BEFORE, IN THE HOURS
AFTERWARD AND SAVE THE REFRT FOR THE PSA INVESTIGATION? ROSS A. LEWIN:
THERE COULD BE THAT, BUT THERE IS NOT. AND THERE IS NO REQUIREMENT IN ANY OTHER STATUTE
I'M AWARE OF, STATE STATUTE, STATE REGULATION, TO DO THE WITNESS STATEMENTS THAT WERE
BEING DISCUSSED EARLIER. AM AP THEY ARE IN FEDERAL REGULATIONS. ROSS A.
LEWIN: I WANT TO TALK TO YOU ABOUT THAT BECAUSE I DON'T THINK THE DISCUSSION OF THE FEDERAL
REGULATIONS HAVE BEEN COMPLETE OR ACCURATE. THEY'RE NURSING HOME REGULATIONS, THEY HAVE
NO APPLICABILITY TO HOCHTS AND THEY HAVE NO MRIKS KABLT TO ASSISTED LIVING RES DEPSES,
THEY DON'T, I THINK IT'S THE BENDER OCCASION HAVE ANY RELEVANCE TO THAT. SLEKDLY,
THE CONFIDENTIALITY PROVISIONS ARE NOT, ARE A LITTLE BIT DIFFERENT THAN WHAT YOU DESCRIBED
IN DISCUSSING THE JEWISH HOME CASE AND I WOULD RECOMMEND TO THE COURT AND THARTS A CASE
CITED IN DEFENDANT'S RESPONSE TO THE N J A Y AMICI BRIEF, HENDERSON VERSUS WILSON, A PREEM
COURT OF KENTUCKY DECISION, 612 SOUNL WEST 3RD 811 THROUGH 2020. IT'S THE MOST
COMPREHENSIVE ANALYSIS OF THE PRIVILEGES UNDER THE FEDERAL LAW AND IT'S PAFKLY, IT CONCLUDES
THAT IT'S NOT JUST REPORT TO THE COMMITTEE BUT IT'S DOCUMENTS CREATED AT THE BEHEST OF THE
COMMITTEE. AND THAT IS THAT IN FACT WHAT THE JEWISH HOME CASE ACTUALLY SAYS. THE JEWISH
HOME CASE SAYS, USED THE WORD WHETHER IT WAS GENERATED BY THE COMMITTEE, AND THEN ON THE
DOCUMENT THERE IS WERE NOT PROTECTED, I HAVE THE LANGUAGE HERE, WERE NOT PRODUCED BY OR
AT THE BEE THEFT OF THE ECONOMIST TEE. SO THE PROTECTS UNDER THE FEDERAL LAW ARE PARALLEL
TO THOSE UNDER THE STATE LAW. AND. JUSTICE WAINER APTER: SO YOU'RE SAYING
WUFRN MORE TIME, YOU'RE SAYING ANYTHING THE COMMITTEE, AS LONG AS THE COMMITTEE SAYS Z
YOU VAULS TO INVESTIGATE AN INCIDENT, THEN ANY INVESTIGATION OF AN SNENT IS ALWAYS CONDEMN
UMENTD FEDERAL OR STATE LAW? ROSS A. LEWIN: THAT'S BASICALLY CORRECT.
JUSTICE PATTERSON: MR. LEWIN, IS IT FAIR TO SAY THAT THE LEGISLATIVE HISTORY
OF THE PSA INDICATES THAT IT WASN'T ONLY THE EVALUATION PROCESS THAT WAS BEING, THAT WAS
BEING AN AEFR CONCERN, IN OTHER WORDS, THE SITTING IN A ROOM AND TALKING ABOUT HOW WE
CAN IMPROVE, BUT THAT WAS ANOTHER ASPECT TO THIS AND THAT DID HAVE AN OR RIIN IN THE CAN YOU
TELL LYNN CASE, PEOPLE IN THE HOSPITALS ARE AFRAID TO GET INVOLVED. AND THEY ARE AFRAID
TO GET INVOLVED BECAUSE THEY ARE AFRAID TO BE NAMED IN A LAWSUIT AND THEY'RE AFRAID TO BE
POTENTIALLY WITNESSES IN A LAWSUIT AND THEREFORE THERE HAS TO BE SOME PROTECTION FOR THEM.
NOW RNS THAT'S OBVIOUSLY AN AREA VERY DIFFICULT AREA AS IT COMPANY LIEDZ WITH DISCOVERY.
BUT COULD YOU TALK ABOUT THAT AND HOW THE STATUTE RESOLVES THE TEPGSS THERE. AT KRED
DALGS STANDARDS THAT REQUIRES THIS SORT OF A THAL IS AND WE COULDN'T GETS THEM DONE IN
NEW JERSEY BECAUSE THE PEOPLE WOULDN'T TALK. PEOPLE WOULDN'T COME AND BE FORTHRIGHT AND
THERE WAS REFLECTED IN A DISCUSSION BETWEEN ASSEMBLYMAN MUNICIPAL NOSE AND COMMISSIONER
LACEY WHERE THE LACK OF COULDN'T DIDN'T YALT IS A KEY HURDLE TO GET THE SORT OF COOPERATION
YOU NEED TO GET THESE DONE RIGHT. AND THAT'S WHEN COMMISSIONER LAIS IS HE SAID IF YOU
LET THE INFORMATION LEAK OUT FROM THE PRO HE IS AND YOU DON'T ENFORCE THE ABSOLUTE PRIVILEGE
AS IT'S WRITTEN THE TRUST WILL BE LAUVENT YOU WILL GO BACK TO THE PRO EXISTING SITUATION
WRGS PEOPLE DON'T COOPERATE. AND HONESTLY, UP ASKED ABOUT THE PURPOSE, I'VE MEAN THIS
STAFT IS ABOUT SAVING LIVES AND AVOIDING SERIOUS INJURIES. AND IF YOU DON'T GET THAT
LEVEL OF COOPERATION BECAUSE PEOPLE ARE UNWIMG TO COOPERATE FOR THEIR OWN PERSONAL REASONS,
YOU WON'T GET THE SUCCESS. JUSTICE PATTERSON: HOW DOES BRUGALETTA AND
THAT WILL BE MY LAST QUESTION, CHEE, I PROMISE, HOW DOES BRUGALETTA RESOLVE OR DO, ATTEMPT
TO RESOLVE THE TENSION HERE BETWEEN OVRL THE NEED FOR DISCOVERY AND THE PSA'S RIERPTS
ABOUT CONFIDENTIALITY? P. ROSS A. LEWIN: I DON'T THINK BRUGALETTA HELPS
MUCH, TO BE OVEN NEST. I THINK BRUGALETTA MAKES CLEAR THAT THE PRIVILEGE JUSTICE LA VEK
YA WROTE, IT WASN'T SOUP TO NUTS FROM START TO FINISH, THE THE MASS PROCESS IS PROTECTED
AND BRUGALETTA LOOKED TO THE TRADITIONAL DISCOVERY RUNLS P TRIED TO FINE TUNE THEM TO
MAKE SURE INFORMATION IN THE RECORD WASN'T BEING HIDDEN. PARAGRAPH PANG AND I SUSPECT
THAT THERE MIGHT BE, THAT, YOU KNOW, IF PLAINTIFF'S COUNSEL CAN'T THE FINE IT WITHIN
THEMSELVES TO ASK THE RIGHT QUESTIONS IN DISCOVERY, THE COURT COULD CHAFRMG THE
STANDARD INTERROGATORIES THAT ARE USED IN MANY OF THESE CASES TO TRY AND MAKE SURE INFORMATION
IS ELICITED. JUSTICE FASCIALE: HOW WOULD THAT BE DONE. ROSS A.
LEWIN: THE EXAMPLE EARLIER THE CURB REPRESENT INTERROGATORY APPARENTLY REFERS TO
STATEMENTS. I MEAN YOU COULD ASK, THAT MAY NOT BE THE BEST INTERROGATORY. BECAUSE IN THIS
CONTEXT AT LEAST, IT MAY BE BETTER TO ASK WHO WITNESSED THE EVENT. AND WHAT DID THEY
WITNESS. AND YOU WOULD GET THAT SORT OF INFORMATION. CHIEF JUSTICE
RABNER: THERE ARE MANY REAL LIFE SCENARIOS ALONG THE MANY WHERE YOU JUST DESCRIBED A
MOMENT AGO, SOMEONE WOULD BE RET TI SANT TO SPOKE, IF EVEN THAT HE WITNESSED AND HAVE PRE
VICE DID HE TAILS IN THEIR MIND, ON THE OTHER HAND THERE MAY BE WIGSS WHERE YOU HAVE THREE
NURSES ALL OF WHOM ARE PERFECTLY WILLING TO DISCUSS WHAT OCCURRED, AND AFTER THE FIRST
WITNESS IS IVEN TER VOWED, AN ATTORNEY IN GOOD FAITH MAY SAY THAT'S IT, WE'RE NOT, OR
WHOEVER IS CONDUCTING THE INVESTIGATION, WE'RE NOT THANK YOUING TO THE OTHER TWO EEVEN
THOUGH YOU'RE WILLING AND THAT ONLY BECOMES DISCOVERABLE, IT DOESN'T BECOME DISCOVERABLE
IT ROW MAPTS WITHIN THE CONFINES OF THE PSA. IS THERE A WAY TO BALANCE BOTH
CONCERNS UNDER THIS STATUTE? ROSS A. LEWIN: WELL, THE RT, I GOI BACK TO
THE BASICS WHICH IS THAT THE PSA WAS NOT TO AUGMENT THE DISCOVERY TOOLS AVAILABLE TO A
PLAINTIFF. JUSTICE PATTERSON: PLEASE KEEP YOUR VOICE UP.
CHIEF JUSTICE RABNER: NOR WAS THE MEANT TO DI PIN NISH THEM. ROSS A. LEWIN:
THAT'S CORRECT. SO YOU HAVE ALL YOUR DISCOVERY TOOLS AND THE GOAL WAS TO TAKE THE PATIENT
SAFETY ACT PROCESS AND PUT IT UNDER AN UMBRELLA OF CONFIDENTIALITY. AND IF THERE ARE
DOCUMENTS, AND IT'S VERY CLEAR, IF YOU HAVE, THE MEDICAL RECORDS BS THEY'RE NOT CONFIDENTIAL,
EEVEN IF THEY'RE LOOKED AT BY THE PATIENT SAFETY COMMITTEE OR THE TEAM LOOK AT THE PARTICULAR
INCIDENT. SO IF THERE WERE EXTERNAL DOCUMENTS, THOSE WERE ALWAYS AVAILABLE, THEY REMAIN
AVAILABLE VEN THAT'S WHAT PLAINTIFF'S COULDN'T SELL WOULD NEED THO WORK WITH.
JUSTICE WAINER APTER: THERE'S NO MANY REQUIREMENT OF WHAT LEVELLY DOUGH TAIL IS REQUIRED
IN THE MEDICAL RECORDS SO NOW IT SEEMS WHERE AS AT THE TIME OF BRUGALETTA THE, A PROBLEM
MAY HAVE BEEN THE OPPOSITE WHERE THE HEALED RECORDS WERE VOLUMINOUS, NOW THE SEEMS INSTID
THE HOSPITAL IS SAYING ORT LONG-TERM CARE FACILITY, EFG IN THE PSA RECORD, THEY DOPE
ACTUALLY ROLL SAY ANYTHING. ROSS A. LEWIN: I LOCK AT THE MEDICAL RECORD,
HOSPITAL CHARTS ARE MORE EXTENSIVE SHAN THAN WHAT YOU'LL SEE IN A NURING HOME OR ASSISTED
LIVING CENTER BUT THESE DESCRIBE THE EVENTS AND -- JUSTICE WAINER APTER:
THEY LEAVE OUT A LOT OF KEY INFORMATION. ROSS A. LEWIN: YOU SAY LEAVE OUT.
JUSTICE WAINER APTER: THEY DID NOT INCLUDE. ROSS A. LEWIN:
THEY DO NOT HAVE IT, BUT THOSE IN MY EYES, THOSE WERE PRETTY ROBUST RECORDINGS OF WHAT
HAPPENED HERE AND SHIERT DOESN'T REFLECT THE SORT OF WITNESS AND TER HAVE YOU THAT I WOULD
DO IF HIGH A WITNESS IN FRONT OF MY, BUT WHAT ABOUT THIS BS WHAT ABOUT THAT, WHAT ABOUT
THAT. BUT YOU WOULDN'T ORDINARILY SO THAT IN A MEDICAL RECORD. AND YUR NOT REQUIRED
TO, YOU'RE SUPPOSED TO RECORD THAT THERE WAS THE INCIDENT AND WHAT YOU DID ABOUT IT AND
THESE DO THAT QUITE ABLY. JUSTICE WAINER APTER: PRESUMABLY IF SOMEONE
FELL PEOPLE WOULD BE ASKED WHAT HAPPENED, THAT IS NO LONGER HAPPENING BECAUSE LTS HE A
ALL WITHIN THAT PROCESS OF THIS IS CONFIDENTIAL RS YOU CAN'T KNOW WHAT HAPPENED, THE ATE
PSA. ROSS A. LEWIN: YOU'RE REACHING THAT COULD HAVE BEEN CLUPGS BASED ON
MR. BRITCHER'S TAM. JUSTICE WAINER APTER: BASED ON THAT WHAT WAS NOT TUFRNED
OVER. ROSS A. LEWIN: I THINK WHAT YOU HAVE TO DO IS ROW LIE ON PROCESS.
IN SOME CASES THAT WILL DEFINITELY NOT BE THE CASE, PEOPLE WILL, AFTER AN EVENT SAY WHAT
HAPPENED HERE. THAT'S ALL DISCOVER AM ABL, RIGHT, THE. CHIEF JUSTICE RABNER:
WHY. JUSTICE WAINER APTER: HE DIDN'T TURN OVER THAT INFORMATION.
ROSS A. LEWIN: YOU HAVE TO LOCK AT WHETHER THAT INFORMATION, HOW IT WAS GAINED AND
P I DON'T SEE A A RECORD OF, IN THIS CASE THAT DEVELOPS THAT VERY THOROUGHLY BECAUSE IT
WASN'T CHALLENGED. SO WE'RE AT REFK HERE OF THE COURT RETCHING CONCLUSIONS BRACED ON
ARGUMENTS OF COUNSEL WITHOUT A RECORD TO SUPPORT THEM, AND NOT OPENLY DO IT IN THAT THESE
TWO CASE BLUT EXTEND IT TO THE ENTIRE UNIVERSE OF NURSING HOME AND ASSISTED LIVING CASE.
SOL SL I WANT TO COME BACK TO SOMETHING YOU SAID BECAUSE I CAN'T GET MY HEAD AR ROUP HOW
THAT JIBES WITH WERE YOUR, WHAT THE NURSE LONG HOME'S COUNSEL JUST SAID.
JUSTICE SOLOMON: YOU SAID IF THE INTERROGATORIES SIMPLY ASKED, DIDN'T FOR COPIES OF
STATEMENTS, WHATEVER, WHO WITNESSED THE INCIDENT? OKAY. APPROPRIATE? WHAT DID THEY WITNESS,
PROEP, ALSO APPROPRIATE HEENL YOU SAID YES. ROSS A. LEWIN: YES. SOL SL
I THOUGHT. JUSTICE SOLOMON: NO I THOUGHT I HEARD FL COUNSEL, THAT WAS
PRIVILEGED BECAUSE THAT WAS LEARNED DURING AN INVESTIGATION AFTER INCIDENT WHERE THE
WITNESSES GAVE STATEMENTS ABOUT WHAT HAPPENED. AND THEREFORE IT'S PRIVILEGED BECAUSE AETSZ
LIT'S PART OF THE SELF KRELT CAN YOU TELL A NAL SAYS BECAUSE THE INSTITUTION DECIDED THAT
THAT PROCESS GIPS THE MOMENT THE INCIDENT HAPPENS. ROSS A. LEWIN: IN, A
LOT OF SITUATIONS YOU GET AN INTERROGATORY IN LITIGATION AND YOU HAVE PRIVILEGED THAT
IS SPOPTS CIVILIAN AND NONPRIVILEGED. JUSTICE SOLOMON: THAT ISN'T WHAT
I ASKED YOU. YOU SAID THAT, THE QUESTION OF, YOU KNOW, PROVIDE COPIES OF THE STATEMENT,
THE REQUEST FOR PRODUCTION. OBJECTIONABLE, PRIVILEGED, BUT THE QUESTION OF WHO WITNESSED
THE INCIDENT, WHAT DID THEY WITNESS, THAT WOULD BE APPROPRIATE BECAUSE PRESUMABLY THEY'RE
THERE AT THE TIME OF THE INCIDENT. COUNSEL SEEMED TO MAKE THE REPRESENT TAKT ATAGS THZ,
NO, THAT'S PRIVILEGED BECAUSE THAT IS DISCLOSED DURING THE COURSE OF THIS PSA WHEN THE
THEY GO TO REQUEST GAIT HOW THIS ACCIDENT HAPPENED AND THEY ASK PEOPLE IN CONNECTION
WITH THAT INVESTIGATION WHAT HAPPENED. IN OTHER WORDS, WE DON'T HAVE TO TELL YOU WHO,
WE DO DON'T HAVE TO TELL YOU ANYTHING BECAUSE WE SAY AS THE NURSE LONG HOME IT'S PART
OF THE SELF-CRITICAL ANALYSIS. ROSS A. LEWIN: THE XHUN OCCASION THAT WAS
PART OF THE PATIENT SAFE TEEF ACT ANALYSIS IS PRIVILEGED. THAT DOESN'T MEAN THAT YOU
CANNOT GO WHEN YOU GET THE INTERROGATORY, FIEP OUT WHO THE PEOPLE WHO WITNESSED AND SAY
TELL ME ABOUT IT. AND THEN WHEN YOU ANSWER THE INTERROGATORY. JUSTICE WAINER
APTER: THAT WOULD BE FOUR YEARS LATER, THEY DON'T REMEMBER WHAT THEY WIT NETTER AT THAT
POINT AND YOU CAN'T REFRESH THEIR RECOLLECTION WITH A STATEMENT THEY GAVE AT THE TIME.
ROSS A. LEWIN: THAT'S CORRECT AND THAT'S PART OF THE COMPROMISE OF A PRIVILEGE
BECAUSE A T PRIVILEGE BY DEFINITION INCLUDES UPON ABSOLUTELY UNBRIDALED FACT. THE.
JUSTICE WAINER APTER: IT NETS AT FALL AND THIS PERSON WAS WEARING GREEN PANTS AND THERE WAS
NO RAIL ON THEIR BED, HOW IS THAT, HOW IS THAT AT ALL SIMILAR TO AN ATTORNEY/CLIENT HOR
YOU MENTIONED SOMEONE SPEAKING TO A PRIEST, HOW IS THAT SIMILAR? PT. ROSS A.
LEWIN: WELL, IF YOU HAVE AN INCIDENT LIKE THIS AND INSTEAD OF THE INTERVIEWING BEING
DONE BY THE PATIENT SAFE TEEF ACT PERP, WHOEVER IT IS, IT'S DONE BY LITIGATION COUNSEL,
SOON AFTER THE EVENT OF THE WE HAD A FALL AT THE END STOUGS, COME DOWN AND INTER VOW PEEB,
THAT'S GOING TO BE CONFIDENTIAL, CORRECT? JUSTICE PATTERSON: YOUR POSITION
IS THAT THE LEGISLATURE TOOK AN EXTRAORDINARY STEP OF MAKING CERTAIN COMMUNICATIONS
PRIVILEGED IN THE SAME WAY THAT A COMMUNE KAPGS WITH A LAWYER WOULD BE OR PRIEST COMPLOUN
OCCASION WOULD BE, ETCETERA BECAUSE IT NEEDED TO, BECAUSE HEALTHCARE FACILITIES NEITHER
ED TO SAY TO POEBL THIS ROW MAINS IN THIS ROOCHL? ROSS A. LEWIN: THAT'S
ABSOLUTELY CORRECT. JUSTICE NORIEGA: IT'S DIFFERENT WHEN THEY'RE DOING
AN ANALYSIS OF BA WENT WRONG AND POINTING FIPG GERS AND, VERSUS SIM MUCH PROEF VOIDING
FACTS OF THINGS THAT OCCURRED THAT THEY MAY HAVE WIT NETSED AND ISN'T THAT CRITICAL PART
OF THAT, G REQUIRES AS PART OF THE PROCESS OF SELF-CRITICAL ANALYSIS. IF THAT HASN'T
STARTED IS IT THE MOMENT OF INCIDENT AND THE WITNESSES ARE PURELY PRO VOIDING FACTUAL
INFORMATION KERPING THE OCCURRENCES, HOW IS THAT COVERED UNDER G AND WHY CAN'T WE DISTINGUISH
BETWEEN WHEN THE, THIS SELF-CRITICAL ANALYSIS BEGINS AND THEY ASK FOR A WITNESS TO COME
FORWARD, THEY SEND OUT REQUESTS FOR INFORMATION, AND THEY CONDUCT THEIR ANALYSIS, IN ORDER
TO IMPROVE THE SITUATION TO A VOID IT HAPPENING AGAIN. IF WE CAN SORT OF THE PUT THAT
IN ONE THE CATEGORY, CAN'T WE DISTINGUISH THAT FROM THE INFORMATION THAT COMES OUT MIEDLY
AFTER AN INCIDENT WHICH IS JUST THE THFGS THAT'S PROVIDED BY THE WHO, WHAT, WHERE, WHY.
WHY CAN'T WE LOOK AT THAT SEPARATELY? ROSS A. LEWIN: LEGISLATURE HAD THAT
SORT OF INFORMATION IN MIND, NOT JUST THE EE VAL TIFF XOEN NAPT AND THE DIALOGUE OVER
WHAT WEPTD WRONG BECAUSE PEOPLE WEREN'T TALKING ABOUT THE FACTS. JUSTICE WAINER
APTER: A NURSE WOULDN'T SAY IF SOMEONE FELL WHAT THEY SAW. ROSS A. LEWIN:
THEY WOULDN'T SDIS, PEOPLE WERE NOT FORTHRIGHT, YOUR BED RAIL ISSUE, THEY WOULDN'T TALK
ABOUT BED RAILS, TWHOE CLAM UP AND SO WITHOUT THAT FACTUAL FOUNDATION, HOSPITALS WEREN'T
ABLE TO FIGURE THINGS OUT AS TO WHAT MIGHT HAVE GONE WRONG AND IMPROVED IT IN A LOT OF CASES
AND THAT'S WHAT THE LEGISLATURE WAS FOCUSED ON. AND IT'S NOT ALL THAT DIFFERENT, THE
PEOPLE WERE RETICENT NOT JUST TO SAY, OH, HE REEL, THAT SURGEON REALLY DOESN'T KNOW HOW
TO DO THAT INFORMATION. THAT'S EE VAL TIFF COMPONENT UT. BUT THEY WEREN'T TALK ABOUT
THE BASIC OF KAFR, DID YOU DPIF THIS SHOT OR NOT DPIF THIS SHOT AND WHAT DOSAGE AND DID YOU
CHECK THE DOSAGE BEFORE YOU GAVE THE SMOT OR WHATEVER, OIM MAINING IT UP OBVIOUSLY. AND
SO THE GOAL WAS DON'T MAKE IT WORSE, RIGHT? BUT DON'T AUGMENT THE DISCOVERY PROCESS FOR
PROCESS IN THESE CASES. CHIEF JUSTICE RABNER: BEFORE YOU SIT DOWN I'D LIKE
TO YOU ANSWER DIRECTLY THE FRAMEWORK THAT MR. BRITCHER LINED P FOR US AND I THINK WE KNOW
YOUR ANSWER, HIS PROPOSAL WAS THAT A JUDGE COULD IN CAMERA ASK WHERE THAT THIS INFORMATION
AVAILABLE ELT WHERE, CALL FOR NARRATIVE OR A DISCLOSURE BY PARTS REDACTED. RUVEN A SFOUL
OF THE MANY STATUTE, MANY. ROSS A. LEWIN: TLTS WHAT HAPPENED WITH THE PIER
REVIEW THAT HAS BOTH FACTUAL AND EE VALUE TIFF COMPONENT AND YOU REDUCT THE COMPONENTS
AND THEY GET THE FACTS MUCH THIS STATUTE VERY CLEARLY SAID CHRISTY IS THOT GEING TO A
PLAY THO THESE. RAB RAN AND RUNS UP GEPS SECTION G LANG WISH. JONATHAN F. LAURI:
ROSS A. LEWIN: TALKS ABOUT, IT'S CLEARLY WHAT MR. BRITCHER WAVENTS BUT IT'S
NOT KIFRT AP WITH WHAT THE LANDSCAPE CRIMINAL HISTORY WAFRNTS. RAB RASH MR. BRIFRP CHER,
BRIEF REBUTTAL. OF. E. DREW BRITCHER: I'D TART BY SAYING YOU HIT EXACTLY
WHAT SHOULD MAP AND THERE WOULD BE NO REASON FOR CHRISTY TO EVER HAVE BEEN MENGSD IN THIS
LEGISLATION IF IT WAS NOT THE IN10 OF THE LEGISLATURE. I'D ALSO POINT OUT.
JUSTICE PATTERSON: LET ME PAUSE YOU THERE, I THINK MR. LEWIN'S POISON IS THAT'S THE PER
ROW VIEW PROCESS AND CHRIS TOE APPLIES TO PEER REVIEW BUT THE DOESN'T AP EMPLOY TO PSA
PROCESS. E. DREW BRITCHER: CHRIS TOE WAS CITED IN THAT INSTANCE BECAUSE
EVERYBODY WANTED THAT TO REMAIN THE LAW THAT WOULD ACH APPLY, WERT IT WAS IN PSA, JOULT
SIDE PSA OR OTHERWISE, THAT IS WHAT THE HOSPITAL ASSOCIATION AND ASSOCIATION FOR JUSTICE
NEGOTIATED AND WENT TO THE TABLE AND THEN EN DORGSED THIS BILL BECAUSE IT PRESERVED THAT
BALANCE. WHAT WE SEE IN THEETS TWO CASES IS EXACTLY THE TOIP OF PROBLEM
THAT HAS OCCURRED BY THAT WHO R CHOSEN TO TRY TO TAKE IT OUTSIDE THAT BALANCE. THE
LEGISLATURE NEVER INTENDED WHAT I HAVE HEARD ARGD HERE TODAY AND I WOULD SUGGEST THAT THE
LEGISLATURE CERTAINLY NEVER SUGGESTED THAT FACT THE CANNOT BE SEPARATED FROM ANALYSIS,
BECAUSE AGAIN WHY WOULD CHRISTY EVER HAVE BEEN CITED FAVORABLY IN THE LEGISLATION ITSELF.
I DO WANT THO ADDRESS ONE THING WHICH WAS AN TRG TOWER QUESTION MUCH THE
INTERROGATORY THAT JUSTICE WAINER APTER BROUGHT FORTH AND JUSTICE NORIEGA DISCUSSED, DOESN'T
YUS THE WORD STATEMENTS, BUT THERE'S ANOTHER SUGGEST IS THE 1 THAT JUS IS PAT SON YOU WERE
LOOKING FOR. IT ASKS WHO HAS KNOWLEDGE. AND THEY TURN AROUND AND THEY GAFKLY DON'T
DEPARTMENT IF I THE INDIVIDUALS BECAUSE THEY TAKE THE PITHS THAT THAT'S PROTECT PD BY THE
PATIENT SAFETY ACT CHLTH. JUSTICE WAINER APTER: WHICH INTERROGATORY WAS,
CAN YOU READ SPECIFICALLY WHAT IT AP. BRIT BIT I DON'T HAVE IT IN FRF MOW BUT I BELIEVE
IT WAS C 4, KG FR ANY WITNESS THAT HAVE KNOWLEDGE, ETCETERA. I HAVE HAD A MATTER AS
A MATTER OF FACT WHERE I GOT AN ACTUAL ONGDZ, BAUP ANY ASKED FOR THE OBJECTION AND I ASKED
FOR THE IN RAM RA, THE JUDGE WHO HAD THAT PARTICULAR MATTER ORDERED MY ADVERSARY TO
IDENTIFY WHAT THEY SAID WHERE SEVEN DIFFERENT WILSON WHO THEY SAW NAME IN THE PATIENT SAF
ETY PROCESS WHO WERE NOT BEING IDENTIFIED AS INDIVIDUALS WITH NOTCH THAT THE COURTS OF THE
ANTSES TO INTERROGATORIES, THAT'S WHERE THIS PROBLEM OF BEING TAVEN AS A POSITION FROM THE
MOMENT OF THE INCIDENT EFFECTIVELY. JUSTICE PATTERSON: AND YOU TAKE DEPOSITIONS
OF THOSE PEOPLE? E. DREW BRITCHER: YES. MAST PAT AND YOU GET ZAERS RESULTS
FROM THAT PRESUMABLY. SO IS IT, SO IF YOU TAKE THE DEPOSITIONS AND THEY GIVE YOU A VERY
BARE BONES VERSION OR THEY GIVE YOU A SLIGHTLY DIFFERENT VERSION THAN THE ONE YOU THINK
IS OUT THERE, ETCETERA, AND THEN YOU GO AND SAY I WANT TO SO WHAT THEY TOLD THE PATIENT
SAFE TEEF COMMITTEE, HAVE YOU JUST CROSSED THE LINE FROM YOU'RE FREE TRO HAVE DISCOVERY,
YOU KNOW WHO THE PEOPLE ARE, HAVE AT IT, TO I WANT TO SEE THE FULL STORY THAT GAVE THE
PATIENT SAFE TE COMMITTEE BECAUSE THAT'S THE REEL TOWER P THE LEGISLATURE SEEMS TO HAVE
SAID THAT THAT PRIVILEGED. E. DREW BRITCHER: I HAVE THO BALANCE MOI ANSWER
WITH THAT, BS DI DISAGREE THE LAST PART OF YOUR STATEMENT, I T NOT BLEFSH FOR A SECOND
THE LOIP CHER INTEVEND THE ANY FACT TO BE WITHHELD TLOU ANY PROCESS OF THIS.
OPERATE FLIP SIDE, I WOULD ALSO SAY I DON'T NED T SAY THE STACHLT I NEED TO KNOW THE
INFORMATION, SO IF I AT ANY THAT PERP'S DEPOSITION AND THEY PROFESS TO MOW I REMEMBER
NOTHING AND I TURN T MY, WOULD YOU PLEASE SHOW THE STATEMENT THEY GAVE AT THE TIME SO
THEY CAN REFRESH THEIR RECOLLECTION AND HEM REAND THEY REFUSE BECAUSE THIS THE DOUCHLT
THIS PERP KREE WRATED OH PROR VOIDED IS NOW CLOAKED IN THIS PRIVILEGE, NOW WE'RE PRESENT
PRENTH THE FACTS FROM COMING FORWARD. JUSTICE PATTERSON: MS. LIEU WITH THAT
WAS TELLING US THE LEGISLATURE WAUF WORRIED ABOUT THE THREAD OF DISCHOSEN XHOILG PEOPLE
KMING FORWARD ON ACCURATE TULT CARE ISSUES, AND WHAT'S THE, EMPLOYEES OF HOSPITALS AND
FACILITIES TO KNOW IF YOU COME FOR THIS WON'T, NOT BE DISCLIFD. CHIEF JUSTICE
RABNER: FRN PE HEARD ABOUT DR. LACEY'S TESTIMONY ALONG THOSE VERY LINES. E. DREW
BRITCHER: I SAT YOU 32 THE ALL AND DISTINGUISH BETWEEN THE TL THAT HAD TO DO WITH A NEAR
MISS CONCEPT VERSUS THE SEER JUS PRESENTS ABL ADVERSE COULDN'T AT THE PRESENT TIME, THE
MISS KOCH SENT THEY WERE NOT GETTING MEAL WERE WILLING TO COME FORWARD TO COURT THICHGS
LIKE NURSE CAN YOU TELL LEN HAVING THESE SERIES OF P HAD AING P NO UNWERE WAS COMING FOR
TO REPORT IT. THAT'S WHY THEY DROE 88ED THE REPORTING OF NEAR MISS REPORTING.
THEY WERE ALSO CONCERNED AND I WOULD IS A THIS HAS THO DO WITH THE ANALYSIS PART, THEY
WANT THE PEOPLE RS WUVENS THE FABS WERE ALL KNOWN TO BE ABLE TO GET TOGETHER AND KR COMPLOET
CANDOR IN DISCUSSING THE WOI. AND THE WHY IS WHAT, WE DON'T HAVE THE ROIT T RECEIVE.
THE PARAGRAPH PAR THE LAST THING I JUST WANT TO SAY IS MR. LEWIN SAID THAT WE SHOULD HAVE
ATTACKED THE PROCESS. IN TERMS OF THE ABILITY TO MAKE THIS SOMETHING THAT IS WORKABLE,
I JUST WANT TO POINT OUT THAT BEFORE WE CAME LER ON C A, MR. LEWIN AND I PART PAID THE
IN A SEVEN DAY LONG HEARING BEFORE JUDGE RED DEN TO DEVELOP THE RECORD OF WHAT VALLEY
HOSPITAL HAD OR HAD NOT DUP IN THE CONTEXT OF RE-88ING THE PATIENT VAF TOE DOCUMENTS THAT
WERE BEING CONSIDERED IN THE C A CASE. IF WE'RE K LO K AT SMLG THAT ISN'T WORN ANL, THAT
ISN'T WORK AR THAT IN EVERY SIPG GULL CASE WE'RE GOING TO END YOU HAVING THOETS TYPE OF
HEARING. JUSTICE PATTERSON: C A WAS THE FIRST CASE THAT REALLY DEALT WITH
THIS, THE REL ANYTHINGS DIDN'T ACH APPLY, ETCETERA. E. DREW BRITCHER: WE
WERE IN A VERY DIFFERENT CONTEXT AND THAT WAS IN YOUR OPINION IN THAT REGARD THAT TWRAU
A PRE REGULATION CASES ET DEBT. BUT IN ORDER THO ATTACK THE PROCESS RGS WE HAD A 7-DAY
HAEFRING. IF I WERE TO ATTACK THE PROCESS HERE, I'D HAVE TO SEFRMGLY BRNG EVERY SIPG
GULL PERSON WHO IS INVOLVE AT HIS FACILITY AND BREPGING THM FORWARD AND DEPOSE THEM ALL.
DID YOU DO THIS, DID YOU DO THIS, WHAT DID YOU DO. THAT SLT IP TRUGS THAT I THINK SHOULD
NOT BE HAP LONG WHEN THIS IS AN ABILITY TO SAY THIS IS WHAT HAPPENED. DEPARTMENT FOI
IT. JUSTICE SOLOMON: SO IT SOUPDZ LIKE YOUR POSITION IS, WHATEVER THE
INVESTIGATION INTO THE INCIDENT CONTAINS, THAT IS WHO SAID WHAT HAPPENED, WHERE IT HAPPENED,
WHEN IT HAPPENED, IN A STATEMENT, AND THAT IS DISCOVERABLE. E. DREW BRITCHER:
YES. JUSTICE SOLOMON: THE CHLT TEE MEETING, THE DISCUSSION OF WHERE DID
WE MESS UP, WHAT OF THOSE FACTS THIS ACCIDENT, HOW DO TE PREVENT THE IN THE FUF CHEB
THAT, IS NOT DISCOVERABLE. E. DREW BRITCHER: GROW. THE COURT:
THAT'S WHERE. JUSTICE SOLOMON: THAT'S WHERE THE DISPUTE IS. E.
DREW BRITCHER: ONE LAST THING. JUSTICE PATTERSON: KWIEF NOT MEANS WHAT,
KIND OF RNGS KIND OF NOT? E. DREW BRITCHER: I WAS SPOVENING TO JUSTICE
SOL MOP PATIENT SAFETY WAY OF EXPRESSING IT, THE DITS SPUT IS NOT SKRAKTLY ON THAT EXACT
LINE. JUSTICE PATTERSON: WHAT IS THE DISPUTE, BIT BRIT BRETT WE HAVE THE
RIGHT T FACT, THEY HAVE A RIGHT TO PRIEF OF ANALYSIS. JUSTICE PATTERSON:
YOUR POSITION IS IF THE WITNESS SPEAKS TO THE COMMITTEE AND DISCLOSES A FACT, THE SUBSTANCE
OF THE WITNESSES' COMMUNICATION IS PRODUCED? BRIT BEFORE THE THE FACT, PURE FACT. BUT
MY LAST -- JUSTICE PATTERSON: SO WHOOPS TO PROTECT LEGISLATURE WANTING PEOPLE
TO COME FORND GIVE FACTS WHICH THEY WILL IN THE DO ACCORDING TO THE LEGISLATIVE HISTORY
IF THEY ARE SHTHS IF THEY'RE DISCLOSED, BRIT BT POURS OF THE BILL WRERP TAUPGING BO HAD
TO DO WITH THE IN OTHER WORDS MISSES AND THE NEED FOR PEOPLE TO COME FORWARD AND REPORT
NEAR MISSES. SERIOUS PREEPTS ABL AT DER CONTEXT WAS ABOUT THE ANALYSIS AND THAT WAS THE
DWOIDING PART AND THE LAST THING I WATCH TO SAY IS THAT IN THIS CONTEXT I THINK WE HAVE
A WHERE YOU HAVE A REMEDY THAT CAN PRO HAVE I THE FACTS BECAUSE CERTAIN THINGS WERE NOT
YET DONE IN THE CONFINES OF THE CLOSED DOORS. WHAT I DO FEAR IS THAT IN THE COURSE OF THE
HEARINGS THAT WE HAD TO DEVELOP THE RECORD AND C A, WHAT THEY WERE ESSENTIALLY DOING WERE YOU
RPGS S H H DOPE SAY ANYTHING. GET INSIDE THE ROOM, SUT THE DOOR, OKAY, ANYTHING YOU SAY
ERR HERE IS COMPLEEFTLY PRIVILEGED VEN NOW YOU CAN TELL US WHAT IS ACTUAL HAPPENING FSHTHS
WE HAVE TO AI HAD THAT I WOULD SUGGEST OB WOULD BE JUST AS MUCH AN ASH BUS IF 1 HIDES
FACTS IN THE SHOULD WAY AND I THANK YOU. P. CHIEF JUSTICE RABNER: THANK YOU
TO ALL COUNSEL FOR THE HELPFUL ARGUMENTS.