Opinion
# 2017-050-040 Claim No. 119247 Motion No. M-90218
09-07-2017
CAROL A. KEALOS, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF JOHN ROMANO, DECEASED v. THE STATE OF NEW YORK
Tantleff & Kreinces, LLP By: Matthew R. Kreinces, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Ellen Hopkins, Assistant Attorney General
Synopsis
Claimant's motion to compel production of certain documents created in response to an incident at Stony Brook Hospital is denied. Defendant sufficiently established that the information sought is covered by the privilege against disclosure created by the PHL and Education Law. Claimant's request that this Court conduct an in camera review of the PSN reports is denied.
Case information
| UID: | 2017-050-040 |
| Claimant(s): | CAROL A. KEALOS, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF JOHN ROMANO, DECEASED |
| Claimant short name: | KEALOS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119247 |
| Motion number(s): | M-90218 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Tantleff & Kreinces, LLP By: Matthew R. Kreinces, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Ellen Hopkins, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 7, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves to compel production of certain documents created in response to an incident at Stony Brook University Hospital (SBUH). Defendant opposes the motion arguing that the documents are privileged pursuant to Public Health Law (PHL) § 2805 (j), (k), (l), (m), Education Law § 6527 and the Federal Patient Safety and Quality Improvement Act of 2005.
The claim herein alleges negligence and wrongful death due to injuries sustained by claimant's now deceased husband (decedent) when he leaned against an improperly secured bed and fell on April 6, 2010. The nurse on duty who heard the fall and ran immediately to the room that day made handwritten notes in decedent's medical file and also completed an online incident report for the SBUH's "Patient Safety Network" (PSN). At the nurse's deposition on February 10, 2016, claimant's counsel asked for production of the PSN incident report, which defendant objected to as privileged. Claimant demanded the report again in writing on February 16, 2016, which was not produced. This motion seeks an order compelling production of any PSN reports created April 6 or 7, 2010.
Initially, defendant does not dispute that it did not serve claimant with its objections to her written discovery demands within 20 days of service, as required by CPLR 3122 (a). However, defendant did clearly and repeatedly object to any discussion of or production from the PSN during the nurse's deposition and the Court finds that defendant did not waive its statutory privilege. Claimant also argues that defendant waived any objections if the nurse reviewed the document in preparation for deposition. However, "[w]here a witness preparing for deposition reviews a document that is statutorily protected from disclosure by unqualified privilege, that review itself does not waive the privilege" (Fernekes v Catskill Region Medical Center, 75 AD3d 959 [3d Dept 2010]).
Public Health Law § 2805 (j)(1) requires that "every hospital shall maintain a coordinated program for the identification and prevention of medical, dental and podiatric malpractice." In order to do so, the statute provides that a hospital must create a quality assurance (QA) committee to review medical services as well as establish a system to maintain and collect information regarding negative healthcare outcomes and incidents injurious to patients. In order to "enhance the objectivity of the review process" and "encourage thorough and candid peer review . . . and thereby improve the quality of medical care," PHL § 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 13 [1998]). Similarly, Education Law § 6527 [3] bars disclosure of "the proceedings [and] the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program."
Having asserted statutory privilege pursuant to the statutory provisions just discussed, defendant bears the burden of establishing that the privileges are applicable, i.e. that the incident report(s) were "generated by or at the behest of a quality assurance committee for quality assurance purposes" (Robertson v Brookdale Hosp. Med. Ctr., 2017 NY Slip Op 06204 [2d Dept 2017], citing Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434 [2003]).
In opposition to the motion defendant submitted the detailed affidavit of Carol Gomes, the current SBUH Chief Operating Officer and Chief Quality Officer. Gomes has held various QA positions at SBUH since 2007, including serving as the Associate Director of Quality Management when the incident at issue occurred in April of 2010. She stated that SBUH has utilized the electronic reporting system known as PSN since approximately 2002 "solely and exclusively for the purpose of carrying out the Quality Assurance, Patient Safety and Quality Improvement initiatives of SBUH, pursuant to the mandates of PHL Section 2805 (j) and Education Law Section 6527 (3)" (emphasis added). She explained that the program is "used to track and trend aggregate data to implement process changes to facilitate continuous quality improvement and enhance patient safety" rather than document specific incidents and that the details of any specific incident are intended to be recorded in that patient's medical file. Gomes stated that the PSN is only electronic such that hard copies are not generally created from the entries, that it is "anonymous-optional" for staff members so as to encourage candid reporting, and that access to the PSN aggregated information is password protected and limited to those engaged in QA activities, Risk Management and Medical Malpractice prevention programs. Gomes reviewed the PSN reports in this case and stated that they "were generated and utilized exclusively for the purposes of investigation and review by the SBUH Quality Assurance (QA) Committee, and not for any other purpose."
Gomes explained that PSN reports "are shared only with those involved with the QA function" and that defendant relied on the privilege protecting PSN reporting from disclosure "to encourage the candid and honest reporting of quality and patient safety information." She described defendant's fear that if the privilege were found inapplicable to PSN reporting there would be "an immediate and detrimental chilling effect on health care providers, who would be reluctant to report quality and/or patient safety issues through PSN." This concern is precisely why there exists a "cloak of confidentiality covering quality assurance procedures and materials" (Matter of Subpeona Duces Tecum to Jane Doe, 99 NY2d 434 [2003]).
In sum, defendant has sufficiently established that the information sought, i.e., data that was input to the PSN on April 6 or 7, 2010, is covered by the privilege against disclosure created by the PHL and Education Law. Claimant's argument that the PSN report is "multi-motivated" and therefore discoverable is conclusory and directly refuted by Gomes' affidavit. Further, claimant's assertion that because this is a negligence action the privilege does not apply is without merit. "It is evident from the plain language of the statutes that the privilege extends to all civil causes of action, not just medical malpractice claims" (Dicostanzo v Schwed, 146 AD3d 1044 [3d Dept 2017]).
Finally, claimant's request that this Court conduct an in camera review of the PSN reports is denied. There is "no basis for an in camera review because there [is] no evidence that any part of the information sought [is] outside the protection of Education Law § 6527 (3) and Public Health Law § 2805-m(2)" (id., quoting Powers v Faxton Hosp., 23 AD3d 1105 [2005]).
For the foregoing reasons claimant's motion (M-90218) is denied.
September 7, 2017
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on claimant's motion to compel discovery: 1. Notice of Motion, Affirmation in Support with Exhibits A-N. 2. Affirmation in Opposition with Exhibits A-D. 3. Reply Affirmation.