                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1421-15T3


PATRICIA T. CONN, as Executrix
ad Prosequendum of the Estate
of David W. Conn, deceased, and        APPROVED FOR PUBLICATION
PATRICIA T. CONN, individually
and per quod,                                May 4, 2016

     Plaintiffs-Respondents,             APPELLATE DIVISION


v.

BABYLIN REBUSTILLO, an
individual, RACHAEL LOAHR,
an individual, and NEWTON
MEMORIAL HOSPITAL, a business
entity, a/k/a NEWTON MEDICAL
CENTER,

     Defendants-Appellants.
________________________________________________________________

         Argued April 12, 2016 – Decided May 4, 2016

         Before   Judges   Espinosa,     Rothstadt     and
         Currier.

         On appeal from Superior Court of New Jersey,
         Law Division, Sussex County, Docket No.
         L-452-14.

         Peter   A.  Marra   argued  the   cause  for
         appellants (Schenck, Price, Smith & King,
         LLP, attorneys; Mr. Marra and Sandra Calvert
         Nathans, on the brief).

         Paul R. Garelick argued the cause for
         respondents (Lombardi & Lombardi, P.A.,
         attorneys; Mr. Garelick, on the brief).
    The opinion of the court was delivered by

ESPINOSA, J.A.D.

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

-12.25, establishes an absolute privilege for two categories of

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

applies    to    the    first   category,        which    consists         of   documents

received by the Department of Health (the Department) pursuant

to the mandatory reporting requirement, N.J.S.A. 26:2H-12.25(c)

(subsection (c)) or the voluntary disclosure provision, N.J.S.A.

26:2H-12.25(e)         (subsection       (e)).           N.J.S.A.      26:2H-12.25(g)

provides a similar privilege (subsection (g) privilege) to a

second category of documents, developed as part of a "self-

critical     analysis"      that     might       never     be       provided     to    the

Department.        In    this     interlocutory          appeal,      we    review     the

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

clarify    the     distinction       between       the        thresholds        for    the

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

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

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

fell from his hospital bed, suffered a "severe intracerebral

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


1
   Plaintiff brought this medical malpractice case against NMC,
Babylin Rebustillo, R.N. and Rachel Loahr, a nursing assistant,
                                                    (continued)


                                          2                                      A-1421-15T3
required to prepare a root cause analysis (RCA) of the event and

file   its    report   with    the    Department.      During   the      course   of

discovery in this medical malpractice action, plaintiff filed a

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

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

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

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

defendants' motions for a protective order and reconsideration.

We granted defendants leave to appeal from that order and now

reverse.

                                         I.

       In    support   of     their    motion   for    a    protective       order,

defendants     submitted      a   three-page    certification         from    Diane

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

authorized     to   make    the   certification       on   behalf   of    NMC     and

provided that:

                  6.   In the instant matter, a Root
             Cause   Analysis  Report  relating   to  the
             plaintiff was prepared by a specified group
             of employees of NMC designated as the team
             involved in this event.    The team included
             medical professionals of various disciplines
             with appropriate competencies to conduct the
             root cause analysis for this event.       In
             addition, the team presented the root cause


(continued)
(collectively defendants) individually and as executrix                           and
administrator ad prosequendum of her husband's estate.



                                         3                                 A-1421-15T3
           analysis document          to       NMC's    patient      safety
           committee.

                   . . . .

                8.   As required under the Patient
           Safety   Act   and   its  regulations,   NMC
           submitted the Root Cause Analysis to the New
           Jersey Department of Health and Senior
           Services.

                9.   This document was generated for
           the sole purpose of complying with the
           mandatory reporting requirements of the
           Patient Safety Act.    This document was not
           generated for purposes of utilization review
           assessment or quality assurance assessment.

           [(Emphasis added).]

    The    trial    court     found   the        RCA    was    "generated      for   the

specific   purpose    of     complying"         with    the   mandatory       reporting

requirement and was filed with the Department.                          There is no

evidence in the record that the Department rejected the RCA or

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

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

order    also   compelled      defendants         "to     provide      any    and    all

documents previously withheld on the basis that such documents

were protected as a [RCA]."

    In     their    appeal,     defendants         argue       the    trial     court's

interpretation of the PSA was erroneous.                      They contend the RCA

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

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




                                           4                                   A-1421-15T3
purposes    of    reporting       the     event       to     regulators."          Plaintiff

acknowledges that if the report prepared by NMC qualifies as one

prepared    and       submitted    in     compliance         with    the     PSA   mandatory

reporting       requirement,         it     is       protected       by      the    absolute

privilege.        However,     she      contends        Lawson's      certification           was

inadequate       to    establish        that        defendants      complied       with       PSA

regulations.          Plaintiff asserts that because the RCA and the

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

the trial court correctly applied the common law standard we

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

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

plaintiff argues that the hospital must show it fully complied

with all applicable regulations before the RCA received by the

Department is protected by privilege.

                                            II.

    In reviewing trial court decisions related to matters of

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

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

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

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

matters    unless       the   court       has       abused    its    discretion         or    its

determination is based on a mistaken understanding of applicable

law."      Applegrad, supra, 219 N.J. at 459 (citation omitted).




                                                5                                       A-1421-15T3
When   the     question           presented        is       a    legal    issue,      such      as    the

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

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

       The    trial       court's         statement               of    reasons       reflects        its

reliance      upon      our       decision        in       Christy,2      a    case   in    which       we

considered       whether          a   peer        review         committee       report      prepared

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

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

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

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

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

balancing        test     of      the     competing              interests      at    issue       —   the

"plaintiff's right to discover information concerning his care

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

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

inappropriate        procedures,             if       found,       are    not     used     on    future

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

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

determined that "evaluative and deliberative materials" within

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

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

2
    The court also relied upon our decision in C.A. ex rel.
Applegrad v. Bentolila, 428 N.J. Super. 115 (App. Div. 2012),
which was reversed by the Supreme Court, 219 N.J. 449 (2014).



                                                       6                                        A-1421-15T3
    The     trial   court's    reliance   upon   Christy's   common        law

standard was misplaced.       The discovery issue here is governed by

the provisions of the PSA.        The questions presented concern the

threshold for the application of the absolute privilege granted

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

all of the RCA from disclosure.

    In    interpreting   a     statute,   "our   essential   task     is   to

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

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

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

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

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

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

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

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

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

patients by obtaining and analyzing information that will lead

to the dissemination of effective practices and reduce systems

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


3
   At oral argument, it was undisputed that the RCA was received
by the Department.   NMC also agreed that an absolute privilege
would apply to the document as it was received by the Department
pursuant to subsection (c).
4
     The information so obtained is also used "to exercise
oversight," with "primary emphasis on assuring effective
                                                     (continued)


                                     7                              A-1421-15T3
it was "critical" to encourage disclosure by "creat[ing] a non-

punitive culture that focuses on improving processes rather than

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

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

mandates    the    confidential      disclosure    of   the    most    serious,

preventable adverse events, and also encourages the voluntary,

anonymous and confidential disclosure of less serious adverse

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

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

the   mandatory     disclosures     made     pursuant   to    N.J.S.A.    26:2H-

12.25(c) and the voluntary disclosures that are "encouraged" by

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

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



(continued)
corrective action by the facility or health care professional."
N.J.S.A. 26:2H-12.25(f).     Use of the information for other
purposes is limited by statute. Ibid.
5
    N.J.S.A. 26:2H-12.25(e)(1) provides:

            A health care professional or other employee
            of a health care facility is encouraged to
            make     anonymous     reports     to    the
            department . . .   in  a   form  and  manner
            established by the commissioner, regarding
            near-misses, preventable events, and adverse
            events that are otherwise not subject to
            mandatory reporting pursuant to subsection
            c. of this section.

            [Emphasis added.]



                                         8                               A-1421-15T3
      The   mandatory         reporting   requirement         is     established       in

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

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

established       by    the    commissioner,      every      serious      preventable

adverse event that occurs in that facility."                       The circumstances

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

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

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

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

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

      The absolute privilege afforded to documents submitted to

the     Department       pursuant   to    the        mandatory      requirement        is

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

                 Any            documents,    materials,     or
            information        received by the department . . .
            pursuant to         the provisions of subsection[]
            c. . . . of         this section concerning serious
            preventable         adverse events . . . shall not
            be:

            1. subject to discovery or admissible as
            evidence or otherwise disclosed in any
            civil, criminal, or administrative action or
            proceeding. . . .

            [Emphasis added.]

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

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

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




                                          9                                     A-1421-15T3
(e), receipt of the documents by the Department pursuant to the

two reporting provisions is sufficient to trigger the absolute

privilege as to all documents so received.                            The plain language

of   the   statute         does       not   condition        the    privilege         upon    the

satisfaction         of    any    other       criteria.            Further,      the   statute

provides no rationale or standard for parsing the contents of

the documents, allowing for some portions to be privileged and

others        not     privileged.               This         straightforward,           easily

identifiable          trigger       and     application        of     the      privilege       is

consistent          with    the       legislative       goal        of     protecting         the

confidentiality of disclosures made to the department – whether

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

knowledge may be created to improve the safety of patients.

       When     the       information         sought    to     be     protected        is     not

submitted      to     the     Department,        the        path    to     a    privilege      is

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

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

privilege for internal documents that are the product of an

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

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

467.   Subsection (g) provides in pertinent part:

              Any documents, materials, or information
              developed by a health care facility as part
              of a process of self-critical analysis
              conducted pursuant to subsection b. of this



                                               10                                      A-1421-15T3
            section concerning preventable events, near-
            misses,   and   adverse  events,   including
            serious preventable adverse events, and any
            document or oral statement that constitutes
            the disclosure provided to a patient or the
            patient's family member or guardian pursuant
            to subsection d. of this section, shall not
            be:

                 (1) subject    to discovery or admissible
            as evidence or     otherwise disclosed in any
            civil, criminal,   or administrative action or
            proceeding . . .   .

            [Emphasis added.]

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

"received   by   the   department"    from   discovery,    the   privilege

afforded to internal documents by subsection (g) only attaches

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

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

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

requirements for the patient safety plan include:

                 (1) a patient safety         committee,    as
            prescribed by regulation;

                 (2) a process for teams of facility
            staff,   which   teams   are   comprised   of
            personnel who are representative of the
            facility's various disciplines and have
            appropriate competencies, to conduct ongoing
            analysis and application of evidence-based
            patient safety practices in order to reduce
            the probability of adverse events resulting
            from exposure to the health care system
            across a range of diseases and procedures;

                 (3) a process for teams of facility
            staff,   which teams  are   comprised of



                                     11                           A-1421-15T3
             personnel who are representative of the
             facility's various disciplines and have
             appropriate    competencies,   to conduct
             analyses of near-misses, with particular
             attention to serious preventable adverse
             events and adverse events; and

                  (4) a process for the provision of
             ongoing patient safety training for facility
             personnel.

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

     The     document         at   issue    in   Applegrad      was     a     memorandum

prepared     by   a      hospital    administrator,       before       administrative

regulations regarding the PSA were adopted, entitled "Director

of   Patient      Safety       Post-Incident      Analysis."            The     document

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

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

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

asserted     that       the    document,     along      with    five     others,      was

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

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

as   part    of     a    process     of    self-critical       analysis        conducted

pursuant to subsection b."                Id. at 467 (quoting N.J.S.A. 26:2H-

25(g)(1)).7         In     contrast,       the   only    pre-requisite         for    the


6
   Initially, the hospital sought to have the document reviewed
pursuant to the balancing test set forth in Christy.
7
    Because Applegrad arose after the passage of the PSA but
before implementing regulations were adopted, the Court analyzed
                                                     (continued)


                                            12                                  A-1421-15T3
subsection (f) privilege is that the documents were "received

by" the Department pursuant to either the mandatory reporting

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

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

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

procedure substantially complied with the procedures required by

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

    Our review of the plain language of the statute, which

comports with the legislative goals articulated, leads us to

conclude    the   privilege   established     by   subsection   (f)   is    not

subject to review to determine whether the health care facility

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

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

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

covering all "documents, materials, or information received by

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

attaches to those items upon receipt by the Department.               Because

plaintiff    retains    the    right     to    discover    facts      through

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



(continued)
the discoverability of the document at issue pursuant to the
terms of the PSA itself and did not impose the requirements
included in the regulations. Applegrad, supra, 219 N.J. at 468-
69.




                                    13                                A-1421-15T3
conclusion does not substantially hamper the plaintiff's quest

for pertinent factual information and preserves the environment

established by the Legislature in which mandatory disclosures

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

    Reversed and remanded for further proceedings consistent

with this opinion.   We do not retain jurisdiction.




                                14                     A-1421-15T3
