604 JOURNAL OF LAW AND POLICY
IV. DUELING INTERPRETATIONS, UNINTENDED MISCHIEF
A. Applegrad ex rel. C.A. v. BentolilaDespite the good feelings on all sides surrounding the
passage of the statute, a glaring inconsistency existed in the
PSA: subsection (g) provided—without exception or ambiguity—
that the materials developed as a process of self-critical analysis
“shall not be subject to discovery or admissible as evidence,”
while subsection (k) codified Christy, which provided for the
disclosure of certain self-critical materials. The Appellate
Division was confronted with this dilemma in Appelgrad ex rel.
C.A. v. Bentolila, where plaintiffs Esther and Gedalia
Applegrad, on behalf of their infant child “C.A.,” alleged
medical malpractice against Valley Hospital (“Valley”) for the
brain damage and oxygen deprivation sustained by C.A. during
delivery.^142 During discovery, Valley withheld six documents,
which it asserted were absolutely privileged.^143 The motion judge
sided with Valley, ruling that the PSA was a “legislative
overruling” of Christy and that the materials were fully
protected from disclosure.^144
On appeal, the Appellate Division noted that “[a]lthough not
specifically mentioned in Christy, several regulatory and
professional standards existed before... adoption of the PSA
Landmark Law Protecting NJ’s Families (Apr. 27, 2004),
http://web.archive.org/web/20041116163012/http://www.state.nj.us/cgi-bin/
governor/njnewsline/view_article_archives.pl?id=1884; Medical Errors and
Patient Safety – New Jersey, QUALITY & PATIENT SAFETY, http://qups.org/
med_errors.php?c=individual_state&s=31&t=1 (last visited Feb. 24, 2013).
(^142) Applegrad ex rel. C.A. v. Bentolila (Applegrad I), No. L-0908-08,
2011 WL 13700, at 1 (N.J. Super. Ct. App. Div. Jan. 5, 2011).
(^143) Id. at 2. Valley identified those documents: “Occurrence Report;
Director of Patient Safety Post Incident Analysis; Department of Risk
Management Request for Quality Assurance Review; Mother/Baby Quality
Assurance/Performance Improvement Review; Department of OB/GYN Quality
Assurance Response; and Utilization Review Committee, Quality Assessment
and Improvement Subcommittee of the Department of OB/GYN.” Id.
(^144) Id. at *4. Initially, the judge ordered disclosure of two documents but
changed course following an ex parte meeting with defense counsel, who for
the first time asserted privilege under the PSA. Id.