Opinion
Index No. 805380/2021 Motion Seq. No. 001 NYSCEF Doc. No. 48
05-24-2024
HOPE S. CONE, as Executor of the Estate of DAVID A. PERSING, deceased, and HOPE S. CONE, individually, Plaintiff, v. ISMAIL EL-HAMAMSY, JOHN ANTHONY VULLO, LYLE C NOLASCO, ELBERT EUGENE WILLIAMS III, KAYLA SUHKYUNG YOU, DAVID G. FALLOON, JEAN-MARY EMMANUEL DEFAY, and THE MOUNT SINAI HOSPITAL, Defendants.
Unpublished Opinion
MOTION DATE 04/08/2024
DECISION + ORDER ON MOTION
JOHN J. KELLEY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 29, 30, 31, 32, 33, 34, 35, 36, 39, 41,42, 43, 44, 45, 46 were read on this motion to/for DISCOVERY.
In this action, inter alia, to recover damages for medical malpractice, the plaintiff moves pursuant to CPLR 3124 to compel the defendants to produce complete copies of the videos and photographs of the plaintiff's decedent in their possession, all oral and written statements made by the individual defendants and their representatives in connection with any morbidity and mortality review, quality assurance evaluation, or other hospital review of the relevant incident regarding the decedent, including transcripts, minutes, synopses, written correspondence, submissions, and notes, and any materials prepared for any morbidity and mortality or quality assurance meeting regarding the decedent that already had been shared with the plaintiff. The defendants oppose the motion. The motion is granted to the extent that, on or before July 12, 2024, the defendants shall produce complete copies of the videos and photographs of the plaintiff's decedent in the defendants' possession, and any materials prepared for any morbidity and mortality or quality assurance meetings regarding the decedent that already had been willfully and intentionally shared with the plaintiff. On or before that date, the defendants also shall submit to the court, for in camera inspection, any documents responsive to the plaintiff's demand with respect to which they are claiming an exemption from disclosure on the grounds that they are privileged as quality assurance review materials, along with an accompanying privilege log.
CPLR 3101 (i), provides, in relevant part, that,
"[i]n addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a [party]. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use"(see Tran v New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383, 387 [2003]). "[T]he 'full disclosure' required by [CPLR 3101 (i)] is simply the disclosure normally required by the CPLR for relevant, nonprivileged materials" (Zegarelli v Hughes, 3 N.Y.3d 64, 66 [2004]; see Feijuste v 437 BMW, LLC, 219 A.D.3d 1308, 1309 [2d Dept 2023]). Hence, the defendants are obligated to produce complete copies of the videos and photographs of the plaintiff's decedent in their possession.
Public Health Law § 2805-j(1) provides, in pertinent part, that "[e]very hospital shall maintain a coordinated program for the identification and prevention of medical . . . malpractice." Such a program must include at least, among other things, the "establishment of a quality assurance committee with the responsibility to review the services rendered in the hospital in order to improve the quality of medical . . . care of patients and to prevent medical . . . malpractice" (Public Health Law § 2805-j[1][a]). Education Law § 6527(3) exempts certain records from CPLR article 31 disclosure. It provides that,
"[n]either the proceedings nor the records relating to performance of a medical or Quality Assurance review function or participation in a medical and dental malpractice prevention program nor any report required by the department of health pursuant to section twenty-eight hundred five-/of the public health law described herein, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall be subject to disclosure under article thirty-one of the civil practice law and rules."
That statute also shields from disclosure the testimony of any person in attendance at such a meeting as to what transpired when a medical or quality assurance review function or medical malpractice prevention program was performed (see Logue v Velez, 92 N.Y.2d 13, 16-17 [1998]; Hernandez v City of New York, 207 A.D.3d 450, 453 [2d Dept 2022]; Siegel v Snyder, 202 A.D.3d 125, 136-137 [2d Dept 2021]).
"The purpose of the discovery exclusion is to enhance the objectivity of the review process and to assure that medical review committees may frankly and objectively analyze the quality of health services rendered by hospitals. By guaranteeing confidentiality to quality review and malpractice prevention procedures, this provision is designed to encourage thorough and candid peer review of physicians, and thereby improve the quality of medical care"(Logue v Velez, 92 N.Y.2d at 17 [citation and internal quotation marks omitted]; see Hernandez v City of New York, 207 A.D.3d at 453; vanBergen v Long Beach Med. Ctr., 277 A.D.2d 374, 374 [2d Dept 2000]). Public Health Law § 2805-m(2) affords similar protection from disclosure for "records, documentation or committee actions or records" generated pursuant to Public Health Law § 2805-j (see Siegel v Snyder, 202 A.D.3d at 137).
The Court of Appeals has recognized a statutory exception to confidentiality, as otherwise required in both Education Law § 6527(3) and Public Health Law § 2805-m(2), for "statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting" (Education Law § 6527[3]; Public Health Law § 2805-m[2]; see Logue v Velez, 92 N.Y.2d at 16 [emphasis added]). The Court concluded that these exceptions necessarily "permit discovery of statements given by a physician or other health professional in the course of a hospital's review of the facts and circumstances of an earlier incident which had given rise to a malpractice action" (Logue v Velez, 92 N.Y.2d at 19 [emphasis added]).
"It 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. Center, 9 A.D.3d 41,46 [2d Dept 2004], citing Orner v Mt. Sinai Hosp., 305 A.D.2d 307 [1st Dept 2003]). The Appellate Division, First Department, has suggested that this burden can only be satisfied by a particularized showing in evidentiary form, such as an affidavit from an individual with personal knowledge, that the report was prepared at the behest of the quality assurance committee for their purposes and actually utilized by them for their purposes (see Clement v Kateri Residence, 60 A.D.3d 527, 527-528 [1st Dept 2009]).
The plaintiff here expressly has limited her request to quality assurance documents consisting of party statements relevant to the incident involving her decedent, and any medical response thereto. Those party statements would fall within the exception to the quality assurance exemption. Nonetheless, the defendants contend that some of the documents containing such statements, such as emails, include information exempt from disclosure. The court agrees with the plaintiff that the appropriate procedure for ascertaining whether the responsive documents in the defendants' possession are, in fact, subject to the quality assurance exemption from disclosure would be for the defendants to submit the disputed documents to the court for in camera review, along with a privilege log (see Bluth v Albany Med. Ctr., 132 A.D.3d 1131, 1132 [3d Dept 2015]).
To the extent that the defendants already had willfully and intentionally shared certain allegedly exempt materials with the plaintiff, they have waived the claim of privilege with respect to those materials (see Nga Le v Stea, 286 A.D.2d 939, 939-940 [4th Dept. 2001]; cf Estate of Savage v Kredentser, 150 A.D.3d 1452, 1454 [3d Dept 2017] [inadvertent disclosure of quality assurance review materials to plaintiff did not constitute a waiver of the privilege]).
Accordingly, it is, ORDERED that the plaintiff's motion is granted to the extent that on or before July 12, 2024, the defendants shall (a) provide her with complete copies of the videos and photographs of her decedent in the defendants' possession and any materials prepared for any morbidity and mortality or quality assurance meetings regarding the decedent that already had been willfully and intentionally shared with her, and (b) submit to the court, for in camera inspection, any documents responsive to the plaintiff's demand with respect to which they are claiming an exemption from disclosure on the grounds that they are privileged as quality assurance review materials, along with an accompanying privilege log, and the motion is otherwise denied.
This constitutes the Decision and Order of the court.