CODIFYING COMMON LAW 579
crystallized, unbending, and absolute privilege, which could
likely produce more consistent, albeit perhaps less equitable,
results in future litigation against hospitals.
Under a PSA regime, trial judges will have less discretion to
shape the course of discovery because the relevant question in
deciding whether to apply a privilege is no longer one which
balances the equities and considers the discoverer’s need for the
information. Instead, courts will resolve distinctly statutory
inquiries: whether a hospital “substantially complied” with the
PSA’s reporting scheme^9 or whether the allegedly privileged
materials were created “exclusively” for the purpose of
complying with the PSA.^10 As a result, there is a danger that the
PSA, while well intentioned, will spawn unintended mischief
during litigation and may undermine the underlying goal of the
Act—to ensure patient safety in New Jersey.
Part I of this Note tracks the development of self-critical
analysis doctrine in the federal courts, emphasizing the seminal
1970 case Bredice v. Doctors Hospital.^11 Part II examines the
history of self-critical analysis in New Jersey and where it stood
on the eve of the PSA’s passage. Part III tells the story of the
PSA—why it was needed, how the Legislature and competing
interest groups united behind the Act, and how the drafters
utilized existing self-critical analysis doctrine in order to further
their goals. Part IV shows, through the recent case of Applegrad
ex rel. C.A. v. Bentolila,^12 how the PSA has unleashed some
unforeseen results, in large part because, like with any
controversial legislation, interested parties are now asserting
novel interpretations of the Act. Part V argues that these
consequences are a result of the PSA’s misguided attempt to
apply its vision of patient safety to the incompatible common
law principles of self-critical analysis. This Note proposes a
more modest self-critical analysis rule, based not on the laws of
privilege but rather on the Subsequent Remedial Measures
(^9) See Applegrad ex rel. C.A. v. Bentolila, 51 A.3d 119, 135 (N.J.
Super. Ct. App. Div. 2012).
(^10) See id. at 139.
(^11) 50 F.R.D. 249.
(^12) 51 A.3d 119.