Opinion
104403/06.
Decided August 22, 2008.
Upon the foregoing papers it is ordered that petition is partially GRANTED and partially DENIED.
Rosen Weinhaus Greenberg LLP, New York, NY, Attorneys for Plaintiff.
Martin, Clearwater Bell, New York, NY, By: Adam G. Guttell, Esq., Attorneys for Defendants.
Defendants Damir Velcek, M.D., and Lenox Hill Hospital ("Lenox Hill"), collectively referred to as "defendants," move, pursuant to C.P.L.R. § 3103, for a protective order. They seek to preclude disclosure of numerous Lenox Hill policies and procedures, which defendants contend are privileged and/or irrelevant. Defendants also seek leave, pursuant to C.P.L.R. Rule 2221, to "reargue" that portion of the April 8, 2008 compliance conference order which struck defendants' request for documents relating to the divorce proceeding between plaintiffs, and seek production of all documents related to plaintiffs' divorce proceeding. Alternatively, defendants seek to preclude plaintiffs from supporting any claims asserted by plaintiff Maida Radoncic related to the impairment and dissolution of the marital relationship. Plaintiffs cross-move for an order, pursuant to C.P.L.R. Rule 3124(a) and § 3126, for sanctions against defendants for violations of prior court orders. They also seek to compel defendants to produce certain documents.
This is an action for medical malpractice relating to two surgical procedures to repair a recurrent hernia. Dr. Velcek is a private attending physician and is not an employee of Lenox Hill. According to the amended complaint, Dr. Velcek performed bilateral hernia surgery on Mr. Radoncic's left side on May 12, 2003. On October 6, 2003, Mr. Radoncic was admitted to Lenox Hill for a second surgery to repair a bilateral inguinal hernia on the right side. The surgery was scheduled as "out-patient" surgery. Instead, Mr. Radoncic was admitted and was hospitalized through October 11, 2003, as a result of what plaintiffs contend were "significant post-surgical complications." Among the injuries complained of are testicular atrophy and sexual dysfunction.
On November 23, 2007, the parties appeared for a compliance conference before the Hon. Eileen Bransten, to whom this matter was assigned originally. The conference order provides that Lenox Hill is to produce rules and regulations for hernia surgery or inguinal hernia surgery and rules and regulations for post-operative care for 2003. Apparently, Lenox Hill failed to comply. A subsequent conference was held on January 8, 2008. The compliance conference order that was issued on that date provides that Lenox Hill is to produce rules and regulations for hernia surgery or inguinal hernia surgery and post-operative care for 2003 within twenty-four days, to the extent such rules are in existence. No documents were forthcoming.
On February 26, 2008, the parties appeared for a compliance conference. According to the reply affirmation submitted by defendants' counsel, at the conference, plaintiffs claimed that defendants were misrepresenting the existence of rules and regulations so as to avoid disclosure; plaintiffs argued that it was difficult to believe that there were no rules in place with regard to surgery and post-operative care. Accordingly, Justice Bransten directed defendants to produce the table of contents for Lenox Hill's rules and regulations that were in effect in 2003. The compliance conference order provides:
Lenox Hill Hos. to provide [plaintiffs] with a copy of a Table of Contents for Hospitals Rules Regulations (in effect at time of surgery) within 7 days; within 3 days thereafter [plaintiffs] to advise LHH of which specific Rules Reg[ulations] it [sic] seeks copies [of] Def[endant] is to provide same w/in 7 days.
By letter dated March 4, 2008, defendants provided a copy of the Table of Contents. By letter dated March 7, 2008, plaintiffs responded by placing a check mark next to those categories of rules for which they wanted copies. Plaintiffs requested copies of the following documents (asterisks note where a rule, regulation, or form was requested twice, since some rules appear under more than one subject heading); whether or not defendants produced the document is set forth below as well:
Document or Form RequestedProduced/Not Produced
Assessment/Reassessment
Bedside Flow Sheet — PE 116 *Not Produced
Post-Anesthesia Recovery Room Nurses Report — PE 125Not Produced
Progress Notes — PE 126Not Produced
Authorization to Work
Licensure, Registration, and Certification — HR 109Not Produced
Discharge/Transfer Out Criteria
Discharge Criteria — CC 519Produced
Drains
Closed Wound Drainage System — TX 849Produced
Postoperative Drains — TX 546Produced
Employment/Human Resources
Performance Review — HR 706Not Produced
Posting and Procedure — HR 116Not Produced
Ethics
Patient Compliments and Complaints — RI 106 *Not Produced
Patient Rights and Responsibilities — RI 107*Produced
Research: Investigating Allegations of Misconduct — RI 113*Not Produced
Forms
Reassessment and Plan of Care Form: Medical/Surgical — PE 117Produced
Incident/Incident Reporting
Acknowledging Medical Errors — RI 138*Not Produced
Medical Records
Documentation and Correction — IM 213Not Produced
Operative Procedures — IM 703Produced
Physician Requirements — IM 300Produced
Operative
Pre-Operative Requirements — TX 204Produced
Physicians
Physician (Attending) Documentation — RI 118Not Produced
Physician orders
Physician Orders — IM 702Produced
Physician Written Orders and Diagnosis
Requirements on Outpatient Services — RI 117Produced
Standards
Standards Approval Process — LD 105Not Produced
Utilization
Admission Review — CC 905Not Produced
Medical Necessity Criteria — CC 904Not Produced
Discharge Planning — CC 909Not Produced
Retrospective Review — CC 907Not Produced
Of the twenty-six (26) enumerated rules, procedures, forms, or standards, defendants provided copies of ten (10) listed documents. Notwithstanding Justice Bransten's order of February 26, 2008 to produce the Rules and Regulations selected by plaintiffs, defendants objected to providing the other sixteen (16) on the grounds that the documents requested were either irrelevant to the claims set forth in this matter and/or privileged under the Public Health Law and the Education Law. At the parties' compliance conference on April 8, 2008, after the undersigned took over the Part from Justice Bransten, Lenox Hill was directed to supplement its response to the rules and regulations on or before April 30, 2008. Lenox Hill failed to do so, and instead, brought this motion on May 6, 2008.
Plaintiffs' assertion that the motion is untimely, because defendants failed to move for a protective order either (1) after receipt of the document demand in May 2007; (2) on or before the March 14 deadline for production that was set forth in the February 26, 2008 conference order; or, (3) on or before the April 30, 2008 deadline for production that was set forth in the April 8, 2008 order, is without merit. C.P.L.R. Rule 3122(a) provides that the party to whom a notice of inspection or production of documents is served has twenty (20) days to respond, setting forth with reasonable particularity the reasons for each objection when documents are not produced. It is then incumbent on the party seeking disclosure to move for an order to compel compliance or production, pursuant to Rule 3124. Notwithstanding these provisions, neither party made any formal motion at that time. The issue was addressed at the February 26 conference, and the schedule set forth above was so ordered. Once again, neither plaintiffs nor defendants moved to compel or for a protective order, respectively. With respect to the third order, dated April 8, Lenox Hill was to supplement its response on or before April 30; while plaintiffs did not move to compel production and compliance with the orders, defendants have now moved for a protective order. It is apparent that neither of the parties complied strictly with the time requirements set forth in the C.P.L.R., and instead attempted to resolve this issue through court conferences and orders. Given their mutual failure to comply with the time restrictions in the C.P.L.R., and given the language in C.P.L.R. § 3103(a) that a motion for a protective order may be brought "at any time," the court can excuse any failure to comply with the time limits in Rule 3122 and will consider the motion on the merits. See, Cynthia B. v. New Rochelle Hosp. Medical Center, 60 NY2d 452, 458 fn. 2 (1983); Calbi v. General Motors Corp., 204 AD2d 148, 148-49 (1st Dep't 1994).
Defendants argue that the documents that are sought are protected under Education Law § 6527(3) and Public Health Law § 2805-m, which provide that documents prepared in connection with a hospital's quality assurance review function and/or a malpractice prevention program are exempt from disclosure. Defendants, who are seeking to invoke the privilege, have the burden of demonstrating that the documents sought were prepared in accordance with the statutes. Ross v. Northern Westchester Hosp. Ass'n. , 43 AD3d 1135 , 1136 (2d Dep't 2007). The mere assertion of the privilege with respect to a wide range of documents is not sufficient. To the extent that the manual may be construed as at all related to Lenox Hill's quality assurance plan, "[t]he privilege [under § 6527] protects evaluations of individual physicians, not hospital-wide plans to improve quality and prevent malpractice." Aldridge v. Brodman , 49 AD3d 1192 , 854 NYS2d 618, 620 (4th Dep't 2008); Little v. Highland Hosp. of Rochester, 280 AD2d 908 (4th Dep't 2001) (holding that defendant "failed to meet its burden of establishing that the statutory provisions for confidentiality and protection from disclosure of certain records . . . extend to its written plan for reviewing, evaluating and maintaining the quality of patient care and identifying and preventing medical, dental and podiatric malpractice."). Since the rules and regulations are not a report, do not derive from peer review proceedings, and do not constitute "records relating to performance of a medical or a quality assurance review function," the privilege does not apply. Gourdine v. Phelps Memorial Hosp., 40 AD2d 694 (2d Dep't 1972) (hospital directed to produce copies of rules and regulations as to recovery room procedures); O'Grady v. Lenox Hill Hosp., N.Y.L.J., June 19, 2003, at 21, col. 4 (Sup.Ct. Bronx Co. 2003) (Lenox Hill required to produce rules and regulations regarding the credentialing process which preceded the malpractice period).
Alternatively, defendants assert that many of the documents sought are irrelevant to plaintiff's specific claim of medical malpractice. While it is true that the request for certain rules extends beyond the initial request for rules pertaining solely to hernia surgery and post-operative care, there is no such limitation set forth in Justice Bransten's February 26 compliance conference order. It was incumbent upon defendants to request that any prior limitations be imposed in the February 26 order; the order as written allows plaintiffs to request any relevant documents contained in the table of contents.
While defendants concede that some of the requested rules and regulations are "arguably related to surgery or operative care," they argue that some of the requested documents are not relevant to this litigation. In their reply papers, defendants elaborate on some of the specific requests, and contend for the first time that certain rules and procedures are more specific than their titles would suggest. For example, defendants assert that the document "Incident/Incident Reporting: Acknowledging Medical Errors — RI 138" concerns reporting errors in omission or commission in patient care by nurses. As there has been no allegation regarding any particular nurse or staff member, defendants claim that this rule and regulation is irrelevant. The title of the rule, however, does not suggest that the rule is limited to nurses. Similarly, defendants assert that the rule "Physicians: Physician (Attending) Documentation — RI 118" is solely designed to insure that a patient's treating physician is appropriately identified and documented during patient registration; again, the title does not suggest that this is the substance of the regulation.
Other requested rules appear plainly irrelevant to the instant litigation. Defendants maintain that the rule and regulation entitled "Research: Investigating Allegations of Misconduct — RI 113," under the heading of Ethics, concerns inquiries into actions taken during scientific research that may deviate from those that are accepted within the scientific community for proposing, conducting, or reporting research. This rule need not be produced. Similarly, defendants need not produce the rule entitled "Utilization: Retrospective Review — CC 907," which concerns the retrospective review of a random sample of medical records to evaluate trends and patterns, nor "Standards: Standards Approval Process — LD 105," which concerns the process of creating and adopting rules and regulations. Defendants also need not produce the Human Resource department rules "Employment/Human Resources: Performance Review — HR 706," nor "Employment/Human Resources: Posting and Procedure — HR 116." These rules are plainly irrelevant to plaintiffs' claims.
Although defendants claim that a series of other documents are similarly not germane to the claims in this litigation, it is possible that rules for admission review and discharge planning are relevant, and contrary to defendants' contention, plaintiffs do raise an issue concerning correction to an operative report, so this rule may also be relevant. Similarly, plaintiffs assert that defendants were negligent in their post-operative treatment of Mr. Radoncic. Plaintiffs further assert that Lenox Hill was negligent in reviewing and investigating Dr. Velcek's qualifications and credentials when determining whether to grant and/or renew his privileges to perform hernia operations. Plaintiffs' request for the rules and procedures for reviewing a physician's qualifications are relevant to this claim. See Megrelishvili v. Our Lady of Mercy Medical Center, 291 AD2d 18 (2d Dep't), lv. dismissed, 99 NY2d 532 (2002). The procedure with respect to "Licensure, Registration and Certification — HR 109" is not plainly irrelevant to the claims set forth in this litigation. While Dr. Velcek's initial application and renewal application for privileges is not discoverable ( Brandes v. North Shore University Hosp. , 1 AD3d 550 , 551 [2d Dep't 2003]), procedures regarding qualifications of employees may be relevant to these proceedings.
Accordingly, defendants are directed to produce the copies of the following documents to plaintiffs:
Assessment/Reassessment
Bedside Flow Sheet — PE 116
Post-Anesthesia Recovery Room Nurses Report — PE 125
Progress Notes — PE 126
Authorization to Work
Licensure, Registration, and Certification — HR 109
Ethics
Patient Compliments and Complaints — RI 106
Medical Records
Documentation and Correction — IM 213
Utilization
Admission Review — CC 905
Medical Necessity Criteria — CC 904
Discharge Planning — CC 909
As to the rules entitled "Incident/Incident Reporting: Acknowledging Medical Errors — RI 138" and "Physicians: Physician (Attending) Documentation — RI 118," defendants are directed to produce these rules to the court for in camera review prior to the conference scheduled on September 16, so that the court may ascertain whether or not these rules are relevant to these proceedings. Defendants are further ordered to produce copies of the rules and regulations to plaintiffs' counsel in advance of the September 16 conference. This decision and order shall not be construed to require that any of the reports that are filed as a result of the hospital's rules and regulations be produced. Such data is likely protected by the sections of the Education Law and Public Health Law cited by defendants.
In their March 14, 2008 notice for discovery and inspection, defendants requested that plaintiffs produce:
1.Any and all court documents related to the divorce and separation proceedings between plaintiffs ESAD RADONCIC and MAIDA RADONCIC, including, but not limited to pleadings, correspondence, docket sheets, stipulations, consent decrees, judgments, orders, exhibits, and any and all submissions made by either party to any court, justice, fact finder, or government authority;
2.Any and all documents related to any alternative dispute resolution proceedings, including, but not limited to arbitration or mediation sessions, related to the divorce and separation proceedings between plaintiffs ESAD RADONCIC and MAIDA RADONCIC, including but not limited to correspondence, exhibits, transcripts, rulings, and any and all submissions provided to any arbitrator or mediator.
3.Any and all transcripts related to any depositions, examinations before trial, hearings, trials, and oral arguments related to the divorce and separation proceedings between ESAD RADONCIC and MAIDA RADONCIC in any format, including, but not limited to hard copies, electronic, computerized, video, and audio.
4.Names of each and every witness produced for any [and] all proceedings related to the divorce and separation of plaintiffs ESAD RADONCIC and MAIDA RADONCIC, including, but not limited to any depositions, examinations before trial, hearings, trials, and oral arguments.
Plaintiffs failed to produce the documents. At the parties' compliance conference on April 8, 2008, defendants inserted a paragraph requiring production of the documents related to plaintiffs' divorce that were requested in the March 14, 2008 discovery demand. Plaintiffs objected to including this demand in the order and the parties argued to the court concerning the request for production of these documents. The court denied defendants' request to include this paragraph in the compliance conference order.
Defendants now move to "reargue" the denial of their request. Plaintiffs object to the request, contending that the divorce file is confidential and that the request is overbroad. Alternatively, plaintiffs assert that in the event the court grants reargument, the court should impose reasonable limitations that require disclosure "only of those portions of the divorce proceedings file that pertain to the Plaintiff's injuries in this case and the effect of those injuries on the marriage."
Domestic Relations Law § 235 affords a statutory protection to the testimony and pleadings in a matrimonial action. Only parties to a matrimonial action and their attorneys are entitled to examine and copy the court filed in a matrimonial action, absent a court order granting access to others. Disclosure of matrimonial case files has been requested in personal injury litigation by defendants, claiming that the matrimonial litigation is relevant to the allegations for damages in the personal injury litigation.
According to defendants, since plaintiffs assert that the alleged malpractice was the direct cause of their divorce, plaintiffs must be compelled to disclose all documents relating to their divorce proceedings. Defendants assert that only through production of these documents can they learn the precise timing of the dissolution of the marriage and whether the dissolution of the marriage was due to the alleged malpractice or other factors beyond the control of defendants. Otherwise, defendants argue, plaintiffs must be precluded from asserting such a claim at trial.
The cases on which defendants rely do not support their broad request. In Carney v. Wopperer, 277 AD2d 1050 (4th Dep't 2000), defendants sought to compel the plaintiff to provide requested authorizations for marital therapy records and sought to require the plaintiffs to answer questions at their depositions concerning their marital therapy. The Fourth Department held that the plaintiffs were required to comply with the demand.
Although it is true that plaintiffs argue that the termination of their marriage is related to the alleged malpractice that forms the basis of this action, defendants' request is overbroad. If the parties did attend any alternative dispute resolution proceedings where the non-economic aspects of the marital relationship were discussed, that may be a proper avenue of discovery. But first the existence of such proceedings must be established. The only possible relevant information in the court file would be the grounds for divorce (which would be set forth in the pleadings, assuming pleadings were filed), and when the plaintiff in the matrimonial proceeding consulted with legal counsel in the first instance, which would be set forth in a retainer agreement. New York restricts discovery on marital fault questions, so there would not be any relevance in directing that materials from discovery be turned over. Assuming arguendo that there are pleadings setting forth a claim of constructive abandonment or cruel and inhuman treatment that relate to the surgery, such allegations would be relevant to the claim plaintiffs now make for loss of consortium. The other documents in the matrimonial file would be irrelevant to this action. For example, Mr. Radoncic's deposition testimony reflects that the parties have two minor children and that child support is a component of the divorce proceeding. The request in the document demand is overbroad, since it would necessarily require production of documents related to other issues in the divorce, which are irrelevant to defendants' reasons for the request.
Defendants are entitled to the pleadings, however, if there are any allegations in either the complaint and/or the answer relating to the surgery. Defendants are also entitled to the retainer agreement between plaintiff and her matrimonial counsel, which may be redacted as to any irrelevant matters, including the price of legal services. Plaintiffs are ordered to produce the pleadings, including the complaint, answer (and counterclaim, if any), and reply (if any), and the retainer agreement, before the September 16 conference. If plaintiffs are contending that there are no such allegations contained in the pleadings, plaintiffs are directed to produce the documents to the court before September 16 for an in camera inspection, and the court will determine if these documents must be turned over to defendants.
Plaintiffs' cross motion for sanctions is denied. Plaintiffs' alternative request for relief, which is a motion to compel the production of documents, is granted in part and denied in part. Defendants are ordered to produce the sections of the manual that were not produced previously (as set forth , supra, pp. 8-9), before the September 16 conference. Defendants are further ordered to produce within thirty (30) days of the date of this decision and order copies of both defendants' insurance policies. C.P.L.R. § 3101 [f]; see Anderson v. House of Good Samaritan Hosp. , 1 AD3d 970 (4th Dep't 2003). Although defendants' counsel contends that defendants have been asked for the policies, that counsel is "following" this; and that the policies will be produced once they are in counsel's possession, this has been an issue at least since April. Defendants are further directed to comply with plaintiffs' request in the May 7, 2008 letter that defendants identify the signatures on the medical records and provide full names, employment status, and contact information for certain employees before the September 16 conference. Defendants are also directed to provide the name of the medical staffing secretary or other employee with knowledge of the process of renewing staff privileges during the relevant time period. Defendants are not required to produce documents related to Dr. Velcek's application and renewal application for privileges. Brandes, supra, 1 AD3d at 551. In any event, Dr. Velcek testified as to these matters at his deposition. Defendants have addressed the discovery demands that plaintiffs claim are outstanding, and have responded that either they are not in possession of certain documents or that they have been provided. Defendants also assert that other requests are overbroad, vague or unduly burdensome. The court has considered all of these additional requests (e.g. Dr. Velcek's appointment logs, news or journal articles mentioning Dr. Velcek, documents relied upon by Dr. Velcek in treating plaintiff, etc.); defendants need not produce those documents.
The motion and cross motion are determined in accordance with the foregoing. All requests for relief that are not granted are denied. The parties are scheduled to appear for a conference on September 16, 2008 at 10:00 a.m. This constitutes the decision and order of the court.