Opinion
# 2015-041-049 Claim No. 124311 Motion No. M-86104
08-04-2015
CAPALDO v. THE STATE OF NEW YORK
GARY E. DIVIS, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Claimant's motion to compel production of the Department of Correction and Community Services Dental Quality Assurance Records in dental malpractice claim is, after in camera review, denied where the records are entitled to the statutory exemption from disclosure provided by Education Law 6527 and Public Health Law 2805-m.
Case information
| UID: | 2015-041-049 |
| Claimant(s): | JOSEPH CAPALDO |
| Claimant short name: | CAPALDO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124311 |
| Motion number(s): | M-86104 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | GARY E. DIVIS, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 4, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant previously moved (Motion No. M-86104) for an order compelling production of "certain Quality Assurance Audits." The Court issued a Decision and Order (filed July 6, 2015) in which the Court directed defendant to produce the requested records for the Court's in camera review.
The claim alleges that defendant is liable for dental malpractice in its treatment of claimant while claimant was incarcerated at Bare Hill and Franklin Correctional facilities, respectively, between 2008 and 2014.
In particular, claimant demanded production of "Dental Quality Assurance Audits for Barehill [sic] Correctional Facility for the years from February 6, 2008 until April 10, 2010" [and] "Dental Quality Assurance Audits for Franklin Correctional Facility for the years from April 10, 2010 until the present."
Defendant refused to produce the requested Quality Assurance Records, asserting that they are not discoverable pursuant to Education Law 6527 and Public Health Law 2805-m, respectively, and are "privileged."
With respect to Education Law 6527 (3), relied upon by defendant, Katherine F. v State of New York (94 NY2d 200, 204-205 [1999], explains that:
"The language of the statute is unequivocal. Education Law § 6527 (3) exempts three categories of documents from disclosure: records relating to medical review and quality assurance functions; records reflecting 'participation in a medical and dental malpractice prevention program;' and reports required by the Department of Health pursuant to Public Health Law § 2805-l, including incident reports prepared pursuant to Mental Hygiene Law § 29.29."
Similarly, in Stalker v Abraham (69 AD3d 1172, 1173 [3d Dept 2010]), the court explained that Public Health Law 2805-m, together with Education Law 6527 (3):
"[S]afeguard[s] information collected as part of a medical review committee's periodic assessment of physicians' credentials and competence in order to encourage frank and objective discussion during the credentialing process (see Logue v Velez, 92 NY2d 13, 17 [1998]). . . 'Public Health Law § 2805-m confers complete confidentiality on information gathered by a hospital in accordance with Public Health Law §§ 2805-j and 2805-k, expressly exempting it from disclosure under CPLR article 31' (Logue v Velez, 92 NY2d at 17 [citation omitted])."
Case law demonstrates that "[i]t is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes" (Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 46 [2d Dept 2004]). The facility invoking the privilege must "'show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure'" (Kivlehan v Waltner, 36 AD3d 597, 599 [2d Dept 2007], quoting Bush v Dolan, 149 AD2d 799, 800-801 [3d Dept 1989]).
Edward Marra, DDS, Regional Dental Director for the Department of Corrections and Community Supervision for Bare Hill and Franklin Correctional Facilities, respectively, among others, stated in his affidavit that he "conducted Dental Quality Assurance Audits for both Bare Hill and Franklin for the years" covered by claimant's demand to produce.
Dr. Marra further stated that "at least two of the purposes of the Department of Corrections and Community Supervision in requiring that Dental Quality Assurance Audits be performed are to attempt to avoid or deter medical or dental malpractice from occurring and to insure that the dental staff members are performing their functions professionally and competently."
The Court found that Dr. Marra's affidavit afforded to defendant prima facie entitlement to the exemption from disclosure provided by Public Health Law 2805-m and by Education Law 6527 (3) for "records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program."
The Court directed defendant to provide to the Court for "in camera inspection [copies] of the documents responsive to [claimant's] request to enable it to determine which of the documents, or portions thereof, if any, are entitled to the statutory privileges . . . and, furthermore, whether they are 'material and necessary' to the prosecution of this action under CPLR 3101 (a)" (Chardavoyne v Cohen, 56 AD3d 508, 509 [2d Dept 2008]).
The Court has carefully reviewed the Quality Assurance Review Records provided by defendant and finds that the records are entitled to the above-described statutory exemption from disclosure and, in any event, contain no information material and necessary to the prosecution of this action.
The materials reviewed in camera by the Court are returned to defendant's attorney, under separate cover.
August 4, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion (M-86104), filed December 22, 2014;
2. Affirmation of Gary E. Divis, dated December 22, 2014, and attached exhibits;
3. Affirmation of Joan Matalavage, sworn to February 26, 2015, and attached exhibits;
4. Affidavit of Edward Marra, sworn to February 25, 2015;
5. Reply Affirmation of Gary E. Divis, dated March 8, 2015, and annexed exhibits;
6. Quality Assurance Review Records for Bare Hill Correctional Facility for 2008-2010 and for Franklin Correctional Facility for 2010-2014.