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liberal discovery system to ensure the disclosure of every
possibly relevant document and the deposition of every possible
witness. As the Christy court made clear, a plaintiff has good
cause to discover nearly all hospital documentation concerning
an adverse event, even if the facts are available from alternate
sources, because of the possibility of uncovering “subtle
differences in both testimony and documented facts, which
support an argument bearing on credibility.”^224 Therefore, a
plaintiff’s incentives could change if certain hospital documents
become increasingly less available. Under an “absolute” PSA
regime, an incident at a hospital that prompts many peer review
and patient safety sessions will not necessarily imply that there
will be an opportunity for broad discovery of these documents.^225
As a result, plaintiffs’ attorneys may be more reluctant to take
on cases where negligence (or, for that matter, outright fraud or
cover-up) must be argued circumstantially: for example, through
showing inconsistencies in deposition testimony and patient
safety documents.
There is, of course, a counterargument. While the plaintiffs’
bar may feel that the patient safety movement is simply tort
reform in disguise,^226 a regime emphasizing the importance of
App. Div. 2004) (observing that critical evidence regarding claims of medical
malpractice “would logically be expected to be in the possession of an
adversary”).
(^224) Id. at 941–42.
(^225) One plaintiff’s attorney, in commenting on Applegrad, opined that:
[T]rying to get discovery from some hospitals is like trying to find
the proverbial needle in a haystack. Except you are first told that: (a)
there is no haystack; (b) if there ever was a haystack, it did not have
any needles; and finally (c) if there was a haystack with a needle,
any discussion of it is privileged. If you persist, you are then advised
that (d) all haystacks and needles were designed, manufactured,
distributed, maintained and utilized by persons who were
independent contractors and, furthermore, (e) the hospital is entitled
to a limitation of liability.
Abbot S. Brown, Hospital Malpractice: Finding the Needle in the Haystack,
N.J.L.J, May 30, 2011, at 1.
(^226) See generally Peter P. Budetti, Tort Reform and the Patient Safety
Movement: Seeking Common Ground, 293 JAMA 2660, 2618 (2005) (drawing
parallels between the results of tort reform and the patient safety movement).