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Clearly, this same argument serves not only as a rationale
for traditional tort reform, but also for strong self-critical
analysis protection. While the majority of tort reform has
focused on limiting a defendant’s exposure to damage awards,
often through the institution of a noneconomic recovery cap^207 or
through the abolishment of common law joint and several
liability,^208 the PSA seeks to redress the perceived excesses of
the tort system through utilizing rules of evidence. Therefore, in
a typical tort reform jurisdiction, a healthcare provider (and its
insurer or indemnifier) could rest assured that damages would
not exceed a specified sum per accident. The PSA’s self-critical
analysis protection, on the other hand, does not limit liability per
se. Instead, it attempts to further the goal of both the tort reform
and the patient safety movements—encouraging the reporting of
errors—by rendering such reports immune to discovery.
C. What Has Changed—And What Will Change—Under the
PSA?The PSA’s privilege was predicated on the finding that self-
critical analysis could not occur without complete
confidentiality.^209 Admittedly, the belief that providers fail to
of medical malpractice litigation is one of the most obvious barriers to the
improvement of patient safety.... These risks also serve as disincentives to
participate in improvement strategies to reduce the risk of error.” Id. at 911
(quoting Beverly Jones, Nurses and the “Code of Silence,” in MEDICAL
ERROR: WHAT DO WE KNOW? WHAT DO WE DO? 84, 91–92 (Marilynn
Rosenthal & Kathleen Sutcliffe eds., 2002)).
(^207) See Noneconomic Damages Reform, AM. TORT REFORM ASS’N,
http://www.atra.org/issues/noneconomic-damages-reform (last visited Feb.
24, 2013) (identifying statutory reforms enacted by state).
(^208) See, e.g., Joint and Several Liability Rule Reform, AM. TORT
REFORM ASS’N, http://www.atra.org/issues/joint-and-several-liability-rule-
reform (last visited Feb. 24, 2013) (identifying statutory reforms enacted by
state).
(^209) See N.J. STAT. ANN. § 26.2H-12.24(2)(f) (West 2007 & Supp. 2012)
(creating “confidential disclosure” processes, thus providing the State with a
means to “increase the amount of information on systems failures, analyze
the sources of these failures and disseminate information on effective
practices for reducing systems failures”); Applegrad ex rel. C.A. v. Bentolila