CODIFYING COMMON LAW 595
enable employers to maintain effective procedures that
encourage reporting and candid statements by all involved.”^98
The court concluded that self-critical analysis was “not
qualitatively different from other confidential information, and
thus [did] not require the protection of a broad privilege.”^99
Payton therefore clarified that self-critical analysis was, at most,
an occasional bulwark against discovery.^100
B. Christy v. SalemOn February 17, 2004, the Appellate Division decided
Christy v. Salem.^101 In Christy, the plaintiff, in his medical
malpractice action, sought the defendant hospital’s peer review
report after learning that an x-ray material to his claims went
missing and following the depositions of several physicians
which “resulted in [alleged] discrepancies... concerning [how]
events unfolded at the hospital.”^102 The court noted that the
“conditional” privilege established in Payton empowered trial
courts to protect confidentiality “short of suppression” through
techniques such as “redaction, issuance of confidentiality or gag
orders, and sealing of portions of the record.”^103 The court
recognized that “here, unlike Payton [which implicated the
‘public interest’ of preventing sexual harassment], we are
required to balance the private interest of a patient against the
public interest of a hospital”^104 and concluded that “plaintiff’s
interest in disclosure does not the have the ‘strong...
reflection of important public policies, to outweigh...
(^98) Id. at 329.
(^99) Id. at 331.
(^100) Id.
(^101) Christy v. Salem, 841 A.2d 937 (N.J. Super. Ct. App. Div. 2004).
Christy was decided following the January 26, 2004 hearings before the New
Jersey Senate Heath, Human Services and Senior Citizens Committee on the
proposed PSA legislation, but prior to the March 4, 2004 committee hearings
in the General Assembly. See infra Part III.
(^102) Christy, 841 A.2d at 938.
(^103) Id. at 940 (quoting Payton v. N.J. Tpk. Auth., 691 A.2d 321, 330
(N.J. 1997)).
(^104) Id.