Opinion
0105095/2005.
February 28, 2008.
Decision and Order
Creedmoor Psychiatric Center ("CPC"), a non-party, has moved for a protective order pursuant to CPLR § 3103 inter alia directing that certain documents denominated 1-93 on a privilege log (Exhibit A to Motion) not be produced or disclosed, that other documents CPC produced pursuant to a subpoena duces tecum or court order be redacted to remove references to other patient names or identifying information if same are filed in this action or, alternatively, that such documents be filed with the court under seal. Defendant PSCH, Inc. ("PSCH" or "defendant") opposes this motion for a blanket protective order barring disclosure of these documents, but consents to their production in redacted form, where appropriate.
Brief Background
Beginning February 10, 2003 and for a short period thereafter, plaintiff, Kimberly Creekmore ("Kimberly" or "plaintiff"), an outpatient at PSCH's facility in Queens County, New York, alleges that Daniel James ("James"), a former employee of defendant, while a "counselor and acting within the scope of his employment, violently, intentionally, and without provocation sexually assaulted plaintiff and performed sexual acts with plaintiff . . ." ( see ¶ 7 of Verified Complaint annexed as Exhibit A to O'Bryan Opp. Aff.), causing her to suffer physical and psychological injuries. A critical allegation underlying these occurrences is that plaintiff "had suffered from a mental disease or defect which rendered her incapable of appraising the nature of [the] sexual conduct of. . ." the former employee. Id.
Discovery in this action produced documentation before this court from the files of the Queens District Attorney's Office referable to the prosecution against James for sexual misconduct against plaintiff. Because of Kimberly's alleged mental/psychological status, these records inter alia contained psychological assessments which called into question Kimberly's ability to comprehend the nature of the sexual activity which occurred between her and James. Notwithstanding James' indictment for allegedly committing various felonies, the District Attorney's Office ultimately accepted James' plea to a misdemeanor complaint.
Through a subpoena duces tecum, defendant has sought plaintiff's psychiatric records, medical records and tests relative to plaintiff's care and treatment as an inpatient at CPC for many years. After repeated letters and judicial intervention, CPC eventually turned over more than 4,000 pages of documentation comprising Kimberly's medical/psychiatric file. However, CPC has withheld from disclosure certain quality assurance records of its internal investigations into alleged acts of violence, abuse or other troubling activities relative to Kimberly.
As noted in the subpoena duces tecum (Exhibit F to O'Bryan Opp. Aff.) PSCH is only seeking documentation and not requesting anyone from CPC to testify and has acknowledged that only the parties and their counsel have access to any documentation CPC produces.
In seeking its protective order, CPC argues as follows: (1) in accordance with a statutory and regulatory scheme ( see MHL § 29.29 and 14 NYCRR § 524.1 et seq.), this mental health care facility is required to maintain a patient care and safety team which must investigate and report inter alia on violent behavior and abuse by patients and employees and take preventive or corrective action; (2) these regulations require facilities such as CPC to establish incident management programs and standing incident review committees to evaluate these incidents and make sure ameliorative action is taken; (3) towards that end, CPC has specific staff members complete incident reports "whenever an incident occurs, including incidents of violence, sexual abuse, patient departure without permission and error in medication." (Barbarotta Aff. in support of Motion at ¶ 5); (4) these reports are forwarded to the facility's Quality Improvement Department ("QID") and evaluated; (5) if the allegations and/or injuries are serious, then clinical risk management specialists (part of QID's risk management department) conduct investigations which would include evaluating the incident report, interviewing witnesses and drafting reports for CPC's incident review committee ( Id. at ¶ 7); (6) this committee, in turn, studies the risk management specialists' reports, considers whether further investigations are necessary and could "recommend disciplinary action against employees or changes in hospital policies and practices" ( Id. at ¶ 8); (7) CPC also reports certain incidents to the NYS Commission on Quality of Care for the Mentally Disabled, a commission within the State's Executive Department which monitors patient care and treatment at State psychiatric facilities; (8) this commission may follow up on reported incidents and make its own recommendations by letter to the CPC's Executive Director and such communications are maintained with the QID; (9) each of the 93 documents listed on the privilege log (reports, memoranda, notices, letters, forms, etc.) (see Barbarotta Aff. in support of Motion at ¶ 11a-h) have been appropriately grouped and categorized by type as quality assurance records which are singularly and collectively exempt from disclosure ( see Education Law § 6527); and (10) CPC's motion for a protective order is not only timely but has also been judicially sanctioned by this court's November 13, 2007 Compliance Conference Order (Exhibit A to Peeples' Reply Aff.).
This Compliance Conference Order also directed CPC to turn over any psychiatric/medical information in its files gathered from other institutions which have treated Kimberly over the course of her life.
In opposing CPC's motion for a blanket protective order, PSCH contends as follows:
Plaintiff has executed a HIPPA-compliant authorization to enable PSCH to obtain all her medical and psychiatric records at CPC where Kimberly spent a considerable period of her life as an in-patient;
CPC's reluctant cooperation with PSCH's discovery requests have unduly delayed this action which is prejudicial;
CPC has neither acted in good faith, timely moved to quash PSCH's subpoena duces tecum for such quality assurance records nor timely moved for a protective order, and is otherwise in contempt of a disclosure order;
The privilege lies with plaintiff who clearly waives same as her physical and mental condition is in controversy here in this action;
Many of the 93 documents listed in the privilege log inter alia fail to identify the maker/author, give their date of creation and/or furnish sufficient detail (other than a general, one-sentence description of a respective document's subject matter) as to their contents "to determine whether the document[s] . . . [are] at least potentially protected from disclosure. . ." (O'Bryan Opp. Aff. at ¶ 44); The quality assurance records privilege lies only in medical malpractice cases and not in cases such as this personal injury action against PSCH and, in any event, CPC has failed to make any showing of institutional harm this privilege was designed to protect against; and
Notably, CPC seeks blanket protection from disclosing these 93 documents by proffering a privilege log which does not identify the preparer of many of these respective documents and does not specify the nature of the documents — information this court should have received to arguably assess its privilege claim during an in camera review. See In re Subpoena Duces Tecum to Jane Doe (Park Associates, Inc. v. N.Y. State Attorney Gen.), 99 N.Y.2d 434, 442, 757 N.Y.S.2d 507, 623 (2003).
Alternatively, these documents listed in the privilege log should be produced for an in camera inspection so this court can determine whether CPC can legally assert an Educational Law § 6527(3) privilege here.
In reply, CPC's counsel reiterated that PSCH's subpoena duces tecum never requested any of these quality assurance records from this non-party enumerated in the privilege log (see Exhibit F to O'Bryan Opp. Aff.), and in addition to an order barring disclosure of the 93 documents, CPC also proffered a proposed protective order to preserve confidentiality of these and other disclosed documents should the court deny this motion.
Discussion
Preliminarily, Creedmore's motion for a protective order was timely made pursuant to this court's November 13, 2007 Compliance Conference Order, which provisions defendant implicitly consented to. Further, the subpoena duces tecum served on CPC (Exhibit F to O'Bryan Opp. Aff.) expressly sought two categories of documents referable to Kimberly, i.e., the entire contents of plaintiffs psychiatric file "created by or received by. . ." CPC and all plaintiff's medical records including diagnostic test reports. Since there was no legal demand to produce quality assurance records, CPC had no need to quash this subpoena and this timely motion for a protective order is clearly the more appropriate "vehicle" to resolve this privilege issue. Education Law § 6527(3) (the "Educ. Law Privilege") states, in relevant part:
On January 28, 2008, PSCH submitted a proposed order to show cause inter alia to hold CPC in contempt for failing to respond to its subpoena duces tecum that is the subject of this motion for a protective order. This court declines to sign same as there is no factual or legal basis to hold CPC in contempt.
Neither the proceedings nor the records relating to the performance of a medical or a quality assurance review function . . . nor any report required by the department of health pursuant to section twenty-eight hundred five-I of the public health law described herein, including the investigation of an incident reported pursuant to 29.29 of the mental hygiene law, shall be subject to disclosure under article 31 of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law.
MHL § 29.29 provides that: "[i]ncident reports shall . . . mean reports of accidents and injuries affecting patient health and welfare at . . . departmental facilities [such as the] [Offices of Mental Health and Mental Retardation and Developmental Disabilities] . . ." Vigilante v. Levy, 2007 WL 3128228 (Sup.Ct., N.Y. Co., Gische, J.).
In In re Subpoena Duces Tecum to Jane Doe, supra, 99 N.Y.2d at 438, 757 N.Y.S.2d at 510, the Court of Appeals, citing to its prior precedents, reiterates the legislative intent underlying the Educ. Law Privilege:
[T]he purpose of hospital-based quality assurance committees is . . . to ensure the proper delivery of services and the maintenance and improvement in quality of care. We noted that the State Education Law privilege which attaches to the proceedings and work product of hospital quality assurance committees "promote[s] the quality of care through self-review without fear of legal reprisal" ( Katherine F. v. State of New York, 94 N.Y.2d 200, 205, 702 N.Y.S.2d 231, 723 N.E.2d 1016 [1999] [discussing Education Law § 6527(3)]). Furthermore, such protections "'enhance the objectivity of the review process'" and ensure that the committees "'may frankly and objectively analyze the quality of health services rendered'" ( Logue v. Velez, 92 NY2d 13, 17, 699 N.E.2d 365, 677 N.Y.S.2d 6 [1998] [quoting Mem of Assembly Rules Comm, Bill Jacket, L 1971, ch 990, at 6, pertaining to the privilege amendment to Education Law § 6527(3)]). The cloak of confidentiality covering quality assurance procedures and materials "is designed to encourage thorough and candid peer review . . . and thereby improve the quality of . . . care" ( id.).
Contrary to PSCH's contention, a medical malpractice claim is not a prerequisite for the Educ. Law Privilege. See Strini v. Edwards Lifesciences Corp., 2006 U.S. Dist. LEXIS 91447 (N.D.N.Y.); see also, Marte v. Brooklyn Hosp. Ctr., 9 A.D.3d 41, 779 N.Y.S.2d 82 (2nd Dept., 2004) (Educ. Law Privilege not limited to medical malpractice actions against hospitals but also to ordinary negligence claims against hospitals).
What is the sine qua non for the Educ. Law Privilege? When a particular document is solely generated via a quality assurance review function to improve and maintain the quality of patient care and, if not prepared in that context, the Educ. Law Privilege will not lie. See Little v. Highland Hosp. of Rochester, 280 A.D.2d 908, 721 N.Y.S.2d 189 (4th Dept., 2001). The Educ. Law Privilege requires a facility such as CPC '"to 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 A.D.3d 597, 599, 827 N.Y.S.2d 290, 291 (2nd Dept., 2007). Stated differently, these documents must have been generated at the request of the health care facility's quality assurance committee to be shielded from disclosure.
Notwithstanding this statutory backdrop, this court cannot ignore the import of CPLR § 3101(a) which provides for full disclosure of all evidence material and necessary to the prosecution and defense of an action. "Indeed, the scope of th[is] discovery statute[ ] is very broad, consistent with New York's policy of permitting 'open and far-reaching pretrial discovery' ( DiMichel v. South Buffalo Ry. Co., 80 NY2d 184, 193, rearg denied sub nom. Poole v. Consolidated Rail Corp., 81 NY2d 835, cert denied 510 US 816) . . ." Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y.2d 952, 954, 683 N.Y.S.2d 156, 157 (1998).
In this action, plaintiff is alleging "that she was a victim of a series of sexual assaults and various acts of sexual misconduct committed against her by Daniel James ["James"], a former employee of PSCH . . ." (O'Bryan Opp. Aff. at ¶ 3) and is suing defendant inter alia for infliction of emotional distress. Id. From PSCH's viewpoint in mounting a defense, CPC's QID reports and memoranda reflecting its investigation of various incidents such as alleged injuries plaintiff caused to herself or others, alleged accusations plaintiff made of sexual misconduct or suggestions by others, alleged threats plaintiff made against CPC staff members and/or alleged altercations plaintiff had with others (see privilege log as Exhibit A to Motion) could potentially shed further light on plaintiff's mental illness and behaviors prior to Kimberly becoming an out-patient at PSCH's facility and be outcome-determinative.
This court has not exhaustively reviewed every case analyzing the application of the Educ, Law Privilege, yet, many of the cases perused revealed a common fact pattern; viz., a plaintiff suing a medical facility (e.g., hospital, etc.) and/or a treating physician, alleging claims which ran the gamut of medical malpractice, personal injury (e.g., slip and fall, etc.) and employment discrimination, among other torts. In every one of these cases, the respective plaintiff sought quality assurance documents ostensibly generated by a defendant-institution pursuant to Education Law § 6527(3) and other related reporting statutes to obtain evidence to support his/her prima facie case.
What is strikingly unusual here is that CPC is a non-party. In addition, there is not even a whiff of an allegation in the underlying complaint against PSCH that plaintiff has ever questioned the quality of her care as an in-patient at CPC. What is also unusual is that it is defendant who is seeking purportedly privileged documentation which may have recorded information plaintiff said or did as an in-patient which may affect Kimberly's ability to ultimately prove her case against PSCH. By putting her mental/psychological condition in issue, plaintiff clearly waived the privilege she would otherwise have enjoyed vis a vis her medical/psychiatric records retained at CPC during her former hospitalization.
Nor can it be seriously argued that the Educ. Law Privilege is statutorily created (to be asserted by CPC on plaintiffs behalf) to benefit plaintiff and shield from disclosure information recorded even under the guise of quality assurance about statements she made and/or actions she took informing of incidents inter alia such as plaintiff's accusations of sexual misconduct or sexual suggestions by others. Based on the foregoing, the Educ. Law Privilege should not be an absolute bar to disclosure in actions where certain quality assurance documents are being sought from a non-party such as CPC "where the underlying policy of improving medical [or psychiatric] care is not implicated . . ." (bracketed matter added). Ryan v. Staten Island Univ. Hosp., 2006 WL 1025890 (E.D.N.Y.).
Parenthetically, where identifying information about other CPC patients and its staff members engaged in quality assurance (either currently or formerly at this mental health facility) could be appropriately redacted on the 93 documents to maintain confidentiality, CPC has not pointed out precisely what harm the Educ. Law Privilege would then be designed to protect against.
Under circumstances sui generis to this case, the Educ. Law Privilege should be "qualified and must be balanced with the substantial need for the information sought. . ." Colgate Scaffolding Equipment Corp. v. York Hunter City Services, Inc., 14 A.D.3d 345, 346, 787 N.Y.S.2d 305, 307 (1st Dept., 2005). This is readily apparent where CPC's brief, conclusory description of the subject matter of these quality assurance records strongly suggests these documents could be material and necessary to the defense of this action. Cf., Seaman v. Wyckoff Heights Med. Ctr., Inc., 25 A.D.3d 596, 807 N.Y.S.2d 409 (2nd Dept., 2006).
Accordingly, this court denies that branch of CPC's motion for a blanket order of protection foreclosing the production of the 93 documents identified in the privilege log. However, in deference to controlling precedent as to the efficacy of the Educ. Law Privilege in this action, CPC is directed to produce such documents to the court for in camera review within five business days of the issuance date of this order and the parties and CPC are to abide by that event. The other branch of CPC's motion is granted directing that the names and/or other identifying information of other patients (currently or formerly) contained in any of the 4,000 documents CPC previously produced pursuant to subpoena or court order be redacted and that patient initials be substituted therefor.
This constitutes the decision and order of this court. Courtesy copies of same have been provided to counsel for CPC and the parties.