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but, in this author’s opinion, contrary to goals of patient safety.
If patients have a right to know every detail of their treatment,
shouldn’t they also have a right to know what occurred following
their treatment?
Consider the case of Esther and Gedalia Applegrad, who,
aside from their “search for truth” as litigants simply seek
answers as a mother and father as to why their child’s delivery
could have gone so horribly wrong.^247 Did the hospital evaluate
the incident, and if so, how rigorously? Did it determine how
the incident occurred? Was a particular medical staff member to
blame for the incident, and if so, was the person sanctioned?
Was he or she involved in prior adverse incidents? Did the staff
member apologize or concede fault? And most importantly, what
procedures has the facility instituted or considered instituting to
ensure that similar errors do not occur in the future? Clearly,
such evidence should be inadmissible at trial. Still, an injured
patient deserves to have these questions answered—at least as a
way to provide a measure of emotional closure and mental
clarity. Rule 407, which would deem patient safety documents
discoverable, yet inadmissible, seems to strike a fair and
reasonable balance.
To conclude, it is worth returning to one of the Harvard
Note’s final thoughts:
A court applying the privilege of self-critical analysis
should also remember that syllogistic application
embodies the policy choice of the institution that decided
to adopt the privilege. In adopting the privilege, a
determination was made that the public interest weighed
in favor of confidentiality. Whether this decision was
made by a higher court, the same court at an earlier
time, or a legislature, judges should give due weight to(^247) See Mary Pat Gallagher, Patient Safety Act Privilege Held Permeable
in Malpractice Suit, N.J.L.J., Aug. 13, 2012, at 4 (“The Applegrads’
lawyer, Cynthia Walters... says there was almost no contemporaneous
record of what happened during the crucial 20-minute delay in resuscitating
the baby or what happened with the intubation.”).