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CODIFYING COMMON LAW: THE SELF-
CRITICAL ANALYSIS PRIVILEGE AND THE
NEW JERSEY PATIENT SAFETY ACT
Adam Blander*INTRODUCTION
In 2004, New Jersey enacted the Patient Safety Act (“the
PSA” or “the Act”),^1 requiring hospitals to engage in the
“comprehensive reporting of adverse patient events, systematic
analysis of their causes, and creation of solutions.”^2 The Act
was grounded in the belief that fostering “a non-punitive culture
that focuses on improving processes rather than assigning
blame”^3 was crucial in promoting disclosure and reporting. As
such, it provided that materials developed from a process of
“self-critical analysis” not be discoverable nor used as evidence
in any subsequent trial or proceeding.^4
- J.D. Candidate and Health Law and Policy Fellow, Brooklyn Law School,
2013; B.A., McGill University, 2009. I thank Professor Frederic Bloom for
his persistent critical feedback; the entire Journal staff for their patience and
dedication; my father Stuart Blander for his helpful notes; and Ross Lewin
and Drew Britcher for providing me with vital primary sources. Special
thanks to my mother, Peri Rosenfeld, for inspiring my curiosity in health
policy.
(^1) See Patient Safety Act, N.J. STAT. ANN. § 26:2H-12.23–25 (West
2007 & Supp. 2012).
(^2) Patient Safety Reporting System, STATE OF N.J. DEP’T OF HEALTH,
http://www.state.nj.us/health/ps/ (last visited Feb. 20, 2013).
(^3) N.J. STAT. ANN. § 26:2H-12.24(e).
(^4) Id. § 26:2H-12.25(g) (rendering self-critical patient safety documents
immune from discovery and not “admissible as evidence or otherwise
disclosed in any civil, criminal or administrative action or proceeding”).^