CODIFYING COMMON LAW 623
patient safety may in fact be more willing to entertain novel
claims of relief for plaintiffs. The health law and bioethics
scholar George Annas, in The Patient’s Right to Safety—
Improving the Quality of Care Through Litigation Against
Hospitals,^227 argues that:
[J]udicial recognition of an explicit “right to safety” for
hospital patients, with a correlative duty of hospitals to
implement patient-safety measures, can become the
primary motivator for the development of systems to
improve patient safety. Hospitals that do not take specific
actions to improve safety should be viewed as negligent
and be subject to malpractice lawsuits when a violation of
the right to safety results in injury.^228
Annas suggests that physicians, patients, and the plaintiffs’
bar join forces to propose initiatives to “pressure hospitals to
change their operating systems” to ensure patient safety.^229
Annas’s argument is important because it reaffirms an obvious
principle of tort law that the PSA minimized: a robust tort
system that constantly patrols for incidents of fault, a system
that (to use the disapproving language of the PSA) cultivates a
“punitive culture” focusing on “assigning blame,”^230 can actually
promote, not hinder, the development and implementation of
innovative safety procedures. Plaintiffs’ lawyers may therefore
experiment with new patient-safety-oriented claims for relief in
cases where more traditional negligence theories may be difficult
to prove.
Finally, how will the PSA affect judges? If the statute’s
absolute privilege is upheld, judges will be deprived of the
opportunity to engage in the fact-sensitive and context-oriented
balancing that previously existed under the common law.
Instead, and as occurred in Applegrad, a court’s “exquisite
weighing process” will give way to the more rigid, yet still
complex, task of determining whether the defendant hospital has
in “good faith” “substantially complied” with the Act; or,
(^227) Annas, supra note 119.
(^228) Id. at 2063.
(^229) Id. at 2066.
(^230) See N.J. STAT. ANN. § 26.2H-12.24(e) (West 2007 & Supp. 2012).