CODIFYING COMMON LAW 621
discover less as litigants. At the same time, as hospitals continue
to engage in procedures virtually identical to those prior to the
PSA, they will get little added safety in return.
Providers, on the other hand, may have much to gain.
Initially, Valley asserted that all six of the suppressed materials
were privileged under the PSA.^220 Following the Law Division’s
ruling that “the mere labeling of a hospital document does not
necessarily control its legal classification,” Valley changed
course and instead argued that only two documents were “PSA”
materials deserving of a full privilege, conceding that the rest
could be subject to a Christy analysis.^221 This author wonders
whether other providers have taken note of Applegrad and have,
as a result, attempted to reconfigure their existing peer review
and adverse occurrence procedures in order to be afforded the
maximum level of protection. Thus, a hospital would prudently
comply with any requisite PSA formalities—however minor and
inconsequential they may be to actual patient safety—simply in
order to demonstrate that it has complied with the statute.
Procedures that could have been introduced for a variety of
reasons could overnight become “patient safety” procedures.^222
If a change like this occurs, it could alter the dynamics of
medical malpractice litigation. In such cases, one side—the
defendant—will inevitably possess the vast majority of evidence,
both inculpatory and exculpatory.^223 Plaintiffs therefore rely on a
(^220) Applegrad I, 2011 WL 13700, at *2.
(^221) This salient fact was not lost on the Appellate Division the second
time around. See Applegrad ex rel. C.A. v. Bentolila (Applegrad II), 51 A.3d
119, 143 (N.J. Super. Ct. App. Div. 2012) (“The Hospital exhibited its
confusion about the PSA in this very litigation by first asserting other
privileges and not invoking the PSA; then arguing, after the trial court’s
initial in camera review, that all of the withheld documents were protected by
the PSA; and ultimately arguing on remand that only DV2 and DV5 are
covered by the PSA.”).
(^222) Alternatively, the Appellate Division’s “exclusivity test” could result
in an unintended irony: hospitals which (laudably) enacted comprehensive
patient safety procedures prior to enactment of the PSA will now be punished
for their foresight because their initially voluntary practices, now mandated
by the PSA, are not “exclusively” a PSA product and are thus not entitled to
the statutory privilege.
(^223) See, e.g., Christy v. Salem, 841 A.2d 937, 940 (N.J. Super. Ct.