616 JOURNAL OF LAW AND POLICY
through fear that an injured patient, empowered with broad
discovery rights, will bring suit. Patient safety, as a legal
principle, is adverse to private tort litigation because the former
seeks to improve overall health outcomes for patients at the
expense of an individual patient’s discovery rights, while the
latter supports the belief that allowing a patient to discover the
truth of what happened in her case will improve overall
outcomes. As Commissioner Lacy testified in his endorsement of
the PSA, “the focus on finding who did wrong rather than why
things go wrong is the major obstacle in improving safety across
this country.”^198 One could dismiss the Commissioner’s opinions
during committee hearings as irrelevant in evaluating legislative
intent.^199 But there is no escaping that the “Findings and
Declarations” portion of the statute itself called for combating
“punitive environments,” which it contended “are not
particularly effective in promoting accountability and increasing
patient safety, and may be a deterrent to the exchange of
information.”^200 The inclusion of these portions in the bill
reflects the underlying policy judgments of the bill’s drafters to
create a complete self-critical analysis privilege.^201 Supporters of
the bill should have anticipated the Act would frustrate a
plaintiff/patient’s opportunity to access relevant evidence.
To be sure, the Legislature attempted to placate various
interest groups by including the reference to Christy in the actual
statute text, implying the privilege would maintain its common
law qualified status.^202 But as both Judge Reddin and the
Appellate Division have made clear, the principles embedded in
Christy are simply inconsistent with the overall intent of the
(^198) See Assembly Hearing, supra note 135, at 15 (emphasis added).
(^199) Justice Scalia put the matter rather bluntly in Zedner v. United States,
547 U.S. 489, 511 (Scalia, J., concurring): “[T]he use of legislative history
is illegitimate and ill advised in the interpretation of any statute.”
(^200) N.J. STAT. ANN. § 26:2H-12.24(e) (West 2007 & Supp. 2012).
(^201) See, e.g., Applegrad ex rel. C.A. v. Bentolila (Applegrad II), 51
A.3d 119, 138 (N.J. Super. Ct. App. Div. 2012) (observing that § 26:2H-
12.24 expresses “clear policy objectives to provide greater incentives... to
disclose mishaps and perceived risks to patient safety” and is thus
incompatible with the “balancing criteria of Christy”).
(^202) See supra Part III.