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Some scholars also question whether privileges actually
enhance the frequency and quality of patient safety procedures.
For example, Susan Scheutzow, a health law practitioner and
academic, through analyzing the National Practitioner Data
Bank, found that peer-review protections, contrary to perceived
wisdom, do not promote the public policy of encouraging peer
review and thus “risk being little more than special interest laws
protecting physicians and hospitals.”^216 Scheutzow therefore
argued for the elimination—or at the very least, reformation—of
such laws.^217
In light of these general claims, one must ask what the PSA
has accomplished thus far. From a large-scale public policy
perspective, it is too early to tell. Nonetheless, the Applegrad
litigation has brought to light at least one useful case study—the
patient safety apparatus of Valley Hospital.
This much is clear: the Appellate Division recognized that
many regulatory and professional standards already existed prior
to passage of the PSA, many of which called for peer review
and self-evaluation procedures quite similar to those required by
the PSA.^218 On remand, and following days of oral arguments
and document inspection, Judge Reddin concluded that he could
discern “no tremendous difference” between Valley’s procedures
prior to and following the PSA. As the judge noted, this reality
does not in itself raise any presumptions of wrongdoing; to the
contrary, it might even show that Valley was ahead of the curve
in patient safety. Yet perhaps even more remarkably, the judge
further found that the PSA “has done nothing” to change pre-
PSA regulations and that “all the Patient Safety Act does is
encourage more reporting... to create an atmosphere of
trust.”^219
One must therefore consider the irony that the PSA may
ultimately result in a raw deal for patients—as a result of a
codified and absolute self-critical analysis privilege, they may
(^216) Scheutzow, supra note 5, at 8–9.
(^217) Id. at 8.
(^218) See Applegrad ex rel. C.A. v. Bentolila (Applegrad I), No. L-0908-
08, 2011 WL 13700, at *5 (N.J. Super. Ct. App. Div. Jan. 5, 2011); see
also supra Part IV.
(^219) Sept. 14 Record, supra note 167, at 12.