CODIFYING COMMON LAW 605
... that pertain to the activities of hospitals in engaging in
forms of internal self-assessments and reporting[,] some or all
... apparently continu[ing] to this day.”^145 The question,
therefore, was, how did the PSA alter existing law?
Valley and amicus NJHA argued that the PSA represented a
“sweeping change in the law of privilege,... insulat[ing] from
disclosure a wide range of documents and information that
previously may have been subject to disclosure.”^146 On that
view, subsection (k) simply clarified that documents not
produced pursuant to the PSA would still be subject to a Christy
analysis and remain partially discoverable.^147 Plaintiffs and
amicus New Jersey Association for Justice (formerly ATLA-
NJ)^148 argued that “Christy’s factual/evaluative distinction still
applies to documents generated under the PSA”^149 and that, at
any rate, the privilege should not apply because there was no
proof that Valley actually reported the Applegrad event to state
officials pursuant to the Act.^150
Nonetheless, the court eschewed answering any of these
“interpretative issues” due to what it felt were “especially
troublesome” “uncertainties” in the record regarding why and
how these withheld documents actually came into being^151 :
(^145) Id. at 7. For example, the court observed that the Legislature
directed hospitals to develop “peer review quality assurance processes” but
pointedly did not provide that such documents be privileged. Also, hospitals,
in accordance with guidelines established by the Joint Commission on
Accreditation of Healthcare Organizations, had already engaged in “self-
critical analysis procedures” to determine the “root cause” of adverse
occurrences. Id. at 6.
(^146) Id. at 8. It is worth remembering that NJHA supported the Patient
Safety bill because of, not in spite of, the “preservation” of Christy. See
supra Part III.
(^147) Applegrad I, 2011 WL 13700, at 8. NJHA specifically cited the
preservation of Christy as grounds for supporting the PSA at the General
Assembly hearing. See supra Part III.
(^148) NJAJ was represented by Drew Britcher, former president of ATLA-
NJ, who testified at the General Assembly hearing. See supra Part III.
(^149) Applegrad I, 2011 WL 13700, at 8.
(^150) Id.
(^151) Id. at 8, *9.