Jablow v. Wagner – April 2015 (Summary)

STATE PATIENT SAFETY ACT

Jablow v. Wagner, No. A-4202-13T4 (N.J. Super. Ct. App. Div. Apr. 8, 2015)

The Superior Court of New Jersey, Appellate Division, affirmed a lower court’s ruling that an attorney representing a patient should be disqualified, holding that the attorney impermissibly reviewed information that was privileged pursuant to the state Patient Safety Act. A patient had suffered a complication while undergoing surgery at defendant hospital. The hospital performed a root cause analysis in accordance with the state’s Patient Safety Act. Before the patient filed a medical malpractice action, her attorney received an anonymous copy of the root cause analysis report and related documents in the mail.

First, the hospital filed a motion to compel the return of the documents stating that they were privileged pursuant to the Patient Safety Act. Finding no evidence that the person who disclosed the documents was authorized to do so, the district court agreed with the hospital and required that the documents be returned to the hospital.

Next, the hospital filed a motion to disqualify the patient’s attorney on the basis that the attorney had violated the rules of professional conduct by reviewing the privileged documents and that such review would prejudice the hospital. The district court granted the hospital’s motion and disqualified the attorney from representing the patient.

The appellate court affirmed the lower court’s ruling, holding that the attorney violated the rule of professional conduct and that he should be disqualified. The court explained that the circumstances, including that the report was mailed from an anonymous source and had a footer on every page which stated that the report was prepared exclusively in compliance with the Patient Safety Act, should have alerted the attorney that the documents were privileged. The attorney was thus obligated, under the rules of professional conduct, to stop reading the documents and return them to the hospital.