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notify patients of such occurrences “in a timely fashion.”^131
Crucially, the Act provided that:
Any documents, materials or information developed by a
health care facility as part of a process of self-critical
analysis conducted pursuant to subsection b. of this
section... shall not be... subject to discovery or
admissible as evidence or otherwise disclosed in any
civil, criminal or administrative action or
proceeding....^132
As indicated earlier, the Appellate Division decided Christy
while the Patient Safety bill was already in the midst of
discussions at the committee level. The drafters of the PSA
added subsection (k), in an attempt to clarify the new privilege it
had just created: “Nothing in this act shall be construed to
increase or decrease the discoverability, in accordance with
Christy v. Salem... of any documents, materials or
information if obtained from any source or context other than
those specified in this act.”^133
This late addition of subsection (k) was the product of
extensive negotiations with Senate and Assembly members and
representatives from both NJHA and the Association of Trial
Lawyers of America—New Jersey (“ATLA-NJ”) immediately
prior to the Assembly hearing.^134 Evidently, and somewhat
(^131) Id. § 26:2H-12.25(d).
(^132) Id. § 26:2H-12.25(g) (emphasis added).
(^133) Id. § 26:2H-12.25(k).
(^134) Drew Britcher, in the NJAJ amicus brief in Applegrad noted that:
[O]n the day that the General Assembly Health Committee was to
entertain the bill, the hearing of testimony regarding the bill was
held until certain amendments, namely the provision concerning
Christy... were presented with the assistance of the Office of
Legislative Services. Indeed, the discussions concerning the inclusion
of a specific case reference were so lengthy that they warranted a
comment by the Assembly Health Committee Chairperson, the
Honorable Loretta Weinberg that “we just completed the longest
recess in the history of committee meetings.”
Brief on Behalf of New Jersey Association for Justice (NJAJ) at 3, Applegrad
ex rel. C.A. v. Bentolila, No. PAS-L-908-08 (N.J. Super. Ct. Law Div.
Sept. 26, 2011).