Medical Malpractice Discovery - A Critical Analysis of the Self-Critical Analysis privilege

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In malpractice cases, when medical errors occur in an institutional setting, a review is often conducted to determine how a patient was injured and what caused the mistake to happen. Hospitals will often refuse to disclose the results of these investigations invoking the self-critical analysis privilege, taking the position that efforts to investigate medical errors must be free from disclosure in litigation or hospitals will stop performing them. Hospitals argue that disclosure of their investigations will eventually negatively impact patient safety because errors will not be analyzed and improvements in patient care will not follow.

At face value, there is something counter intuitive about concealing evidence of negligence in medical malpractice lawsuits in the name of promoting quality assurance in patient health care. Peer review investigations into medical errors is not a voluntary activity, it is required under federal and state law. Consequently, disclosure in litigation should not result in a reduction of internal hospital investigations.

This article examines how New Jersey Courts have dealt with the self-critical analysis in the context of medical malpractice cases and contrasts these decisions with federal common law.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© John Ratkowitz, Starr, Gern, Davison & Rubin, P.C. | Attorney Advertising

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