Monday, April 19, 1999

A Critical Analysis of the Self-Critical Analysis Privilege

This article was published in the New Jersey Law Journal's Complex Litigation Supplement on April 19, 1999.

When an unusual incident involving a patient occurs at a health care facility, it may be the subject of peer review by a committee created within the hospital. This kind of review is likely if the incident  caused the patient to file a medical malpractice complaint. Peer review analysis and the reports from morbidity and mortality committees contain a great deal of factual information relevant to a medical malpractice case. Notwithstanding, defendants have been largely successful in shielding these materials during discovery by arguing that these documents are protected by the so-called self-critical analysis privilege. This article analyzed the development of federal case law that dealt with the self-critical analysis privilege and argues that courts should not allow hospitals to shield relevant evidence from disclosure by incorrectly applying the doctrine.