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according to the Appellate Division’s test, whether the alleged
privileged material was created “exclusively” for PSA
functions.^231 Decades of self-critical analysis jurisprudence and
case law will now be of little use to judges confronted with
assertions of a PSA privilege.
On the other hand, perhaps not much will change after all.
Judges, now tasked with determining the contours of the statute,
may develop their own “exquisite weighing process” in
evaluating whether to apply the privilege. First, as the litigation
in Applegrad made clear, merely distinguishing between PSA
documents and related patient-safety/peer-review materials was
itself a controversial and fact-sensitive inquiry.^232 Second, the
Appellate Division imposed several requirements on providers,
such as the “exclusivity” test, or the requirement that
“competent” personnel of “various disciplines” administer the
reviews.^233 A court will find it difficult to determine whether a
hospital complied with these requirements, and if the facts of
Applegrad are any indicator, it will require days of testimony
(and cross-examination) of hospital staff.^234 How can hospitals be
sure that their patient safety documents will be deemed
absolutely privileged in the future, and if they cannot be sure,
will that reality, in and of itself, frustrate the PSA’s primary
goal of encouraging frank discussions and full disclosure? As
one commentator predicts, “Due to the highly fact specific
analysis undertaken by the Court in [Applegrad] and apparently
to be applied by the courts considering the application of this
privilege, uncertainty will remain as to the ultimate outcome in
any given scenario.”^235 Yet, as this Note has described,
(^231) See Applegrad ex rel. C.A. v. Bentolila (Applegrad II), 51 A.3d 119,
139 (N.J. Super. Ct. App. Div. 2012) (“[W]hether the item had an
independent genesis [aside from the PSA]... at times... may be obvious.
At other times, it might not, and would require closer scrutiny of how each
particular fact or opinion was created.”).
(^232) See id. at 128.
(^233) Id. at 141–42.
(^234) Id. at 129 (“On remand, the trial court heard testimony over seven
days from persons at the Hospital who were involved in the development of
the allegedly privileged records.”).
(^235) Sharlene Hunt, Court Addresses Confidentiality Under the Patient