CODIFYING COMMON LAW 627
Even in the oft-cited Dowling case, the court recognized that
“the difference between pre-accident safety reviews and post-
accident investigations is an important one.”^243
To be clear, Rule 407 governs questions of admissibility—it
is not a privilege—and therefore evidence of subsequent
remedial measures is still discoverable.^244 Consequently, the
preparer or creator of documents attesting to subsequent
remedies should not have any reasonable expectation that the
documents will remain confidential. Still, allowing for the
discovery, but not the admissibility, of patient safety and peer
review documents is worth consideration, particularly in New
Jersey. First, the state’s Patient Bill of Rights empowers patients
with a “right to know” about the treatment they received.^245 But
on an even more basic level—and as the Christy court put it—
“the search for truth is paramount in the litigation process.”^246 A
patient safety protection structured around Rule 407, rather than
an absolute privilege, could strike the right balance between an
injured patient’s right to information and the hospital’s
confidence that its own safety procedures will not expose them
to liability.
The PSA deviated from this “right to know” principle.
While it mandated facilities to inform patients of any adverse
events, it simultaneously shielded important documents
concerning these events. Proponents would argue that this rule is
vital: in certain circumstances, overall improvements in patient
safety rely upon the knowledge that certain materials will remain
inaccessible to an individual patient. The argument is sensible,
(^243) Dowling v. Am. Haw. Cruises, 971 F.2d 423, 427 (9th Cir. 1992).
(^244) See 23 CHARLES A. WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL
PRACTICE AND PROCEDURE § 5291 (2012) (“Rule 407 is a rule of
admissibility, not a privilege; hence, subsequent remedial measures are
discoverable.”); see also Donald P. Vandegrift, Jr., The Privilege of Self-
Critical Analysis: A Survey of the Law, 60 ALB. L. REV. 171, 189 (“Rule
407 is not a privilege rule.”).
(^245) See N.J. STAT. ANN. § 26:2H-12.8(c) (West 2007). The interplay
between this statute and the PSA, in this author’s opinion, is ripe for
litigation and worth further judicial exploration.
(^246) Christy v. Salem, 841 A.2d 937, 942 (N.J. Super. Ct. App. Div.
2004).