CODIFYING COMMON LAW 589
similar to the work-product doctrine, which protects certain
materials from discovery absent a showing of “sufficient
need.”^62 Flanagan concedes that protecting medical peer reviews
from malpractice plaintiffs is necessary, recognizing that “a
failure to ensure [their] confidentiality will diminish the[ir]
quality.”^63 Yet he also observes that many states nevertheless
protect these reports in the form of “peer review statutes,”
which, unlike a general self-critical analysis rule, “provide
sufficient exceptions so that no litigant will be seriously
prejudiced because he cannot discover who was present or what
occurred during a relevant review proceeding.”^64 Flanagan thus
concludes that while self-critical analysis may be a worthwhile
public policy, it is undeserving of an unqualified privilege.^65
D. The Current State of Self-Critical AnalysisWhile the self-critical analysis doctrine has likely informed
many medical peer-review statutes,^66 it has certainly not gained
recognition as a general privilege. Instead, the privilege has
been maintained as an equitable tool for trial courts to shield
documents not otherwise protected by the attorney-client
privilege or work-product doctrine.^67 There is little agreement
(^62) Id. at 575.
(^63) Id. at 576.
(^64) Id. at 577. As discussed infra Parts II & III, New Jersey is one of the
few states in which medical peer-review protections are not derived from
statute, but rather from decisional law (the exception being the “utilization
review” privilege, see infra Parts II & III).
(^65) Flanagan, supra note 40, at 582 (“At best there are compelling reasons
for courts to consider requests for discovery of peer reviews, to weigh
alternatives, and to seek the least harmful means of disclosure.”).
(^66) GREENWALD ET AL., supra note 21, § 1:121 (“State law relating to
privileges is often governed by statute, and many states have statutes adopting
forms of a self-evaluative privilege in a very limited context. For example,
most states afford some confidentiality to medical peer reviews of patient
care.”).
(^67) Id. (observing that “in order to provide additional protection [aside
from the attorney-client and work-product protections], some courts have
recognized [the self-critical analysis privilege] to protect institutional self-
analysis from outside discovery”).