CODIFYING COMMON LAW 625
“uncertainty” has always been the predominant dynamic of self-
critical analysis. Perhaps the ambiguous patient safety dynamics
that existed under the common law will continue under this new
PSA regime, simply under a new name. The Appellate Division
made the unassailable point that a hospital’s “mere labeling” of
a document as “privileged” counts for very little.^236 So too, the
Appellate Division’s recognition of the PSA privilege as being
“absolute” will be of little significance to providers and
plaintiffs in light of the significant caveats the court imposed.
D. Potential for Future Patient Safety: Rule 407This Note concludes by offering an alternative model for
analyzing self-critical patient safety documents. The fact/opinion
distinction which governed the majority of critical analysis
jurisprudence but was discarded under the PSA represents a
doctrinal and practical compromise for litigants: the discoverer
will be entitled to crucial pieces of evidence, while his adversary
can still maintain a degree of confidence that he will not be
penalized for his investigation. This distinction also recognizes a
more basic reality of trial practice: sometimes opinions can be
more damaging than facts.^237 This Note therefore suggests that
the rationale for the self-critical analysis privilege may be better
served through a different evidentiary paradigm, one recognized
in virtually every state, as well as under the Federal Rules of
Evidence: the Subsequent Remedial Measures doctrine.^238
Safety Act, N.J. HEALTHCARE BLOG (Aug. 14, 2012),
http://www.njhealthcareblog.com/2012/08/court-addresses-confidentiality-
under-the-patient-safety-act/.
(^236) Applegrad II, 51 A.3d at 141 (“What matters for judicial review is the
actual functions and activities involved, rather than the nomenclature adopted
by the health care facility.”).
(^237) Flanagan, supra note 40, at 576 (“[T]he use of the conclusions of
such reviews in litigation renders the peer reviewers involuntary experts for
one of the parties.”); see also Bredice v. Doctors Hosp., Inc., 50 F.R.D.
249, 250 (D.D.C. 1970) (“[C]onstructive professional criticism cannot occur
in an atmosphere of apprehension that one doctor’s suggestion will be used as
a denunciation of a colleague’s conduct in a malpractice suit.”).
(^238) FED. R. EVID. 407 (“Subsequent Remedial Measures”) provides:
When measures are taken that would have made an earlier injury or