CODIFYING COMMON LAW 617
PSA.^203 A review of both the legislative history and the plain
meaning of the statute indicates that applying a Christy-like
qualified privilege to PSA materials would thwart the Act’s
explicit goal to afford such documents the simple yet absolute
cloak of confidentiality. The only fair conclusion is that, while
individual drafters or supporters of the bill may have hoped
otherwise, the PSA has limited a patient/plaintiff’s “private
right” of discovery^204 in its attempt to further the broader societal
good of improving patient safety.
Understood another way, the Legislature has unleashed a
subtle brand of tort reform.^205 Proponents of reform argue that
an aggressive tort system, which in theory purports to deter
unsafe practices and conduct, can actually yield perverse
incentives. In the healthcare context, providers will rationally be
reluctant to engage in conduct benefitting the patient’s or
public’s interest (such as error-reporting) if it could foreseeably
expose them to liability.^206
(^203) See Applegrad II, 51 A.3d at 146–47 (holding that PSA’s “repeated
emphasis on confidentiality cannot be reconciled with plaintiffs’ claim that the
PSA’s non-disclosure protections must yield to the exceptions set forth in
Christy”); Sept. 12 Record, supra note 159, at 31 (holding that PSA
documents are “entitled to a full privilege and no Christy analysis is
warranted”).
(^204) See Christy v. Salem, 841 A.2d 937, 940 (N.J. Super. Ct. App. Div.
2004) (referring to a medical-malpractice plaintiff’s right to discovery as a
private interest, which, unlike those of a civil rights plaintiff, “does not have
the ‘strong... reflection of important public policies’” (alteration in
original) (quoting Payton v. N.J. Tpk. Auth., 691 A.2d 321, 333 (N.J.
1997))).
(^205) See BLACK’S LAW DICTIONARY (9th ed. 2009) (defining tort reform as
“[a] movement to reduce the amount of tort litigation, usu. involving
legislation that restricts tort remedies or that caps damages awards (esp. for
punitive damages)” and noting that “[a]dvocates of tort reform argue that it
lowers insurance and healthcare costs and prevents windfalls, while
opponents contend that it denies plaintiffs the recovery they deserve for their
injuries”).
(^206) See generally David A. Hyman & Charles Silver, The Poor State of
Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem
or Part of the Solution?, 90 CORNELL L. REV. 893, 909–14 (2005)
(discussing the “conventional wisdom” that “malpractice liability impedes
efforts to improve patient safety”). As one nursing expert put it, “The threat