Opinion
019720/08.
Decided April 26, 2011.
Counsel for Plaintiffs Steven Visalli and Christine Visalli: David J. Fischman, P.C., Jackson Heights, New York.
Counsel for the Defendant Winthrop University Hospital, Martin Clearwater Bell, Teri Ann Quinlan, Esq., East Meadow, NY.
Counsel for Defendant Benjamin Cohen, M.D., Aaronson Rappaport Feinstein Deutsch, LLP, Rebecca Charten, Esq., New York, NY.
The instant action involves a claim for medical malpractice wherein the Plaintiff, Steven Visalli (hereinafter "Steven") alleges that the Defendants failed to timely diagnose and treat an infection following the spinal surgery performed on him at Winthrop on April 2, 2006. The instant action was commenced by the filing of a summons and complaint on or about October 29, 2008. Issue was joined by the service of the Defendant, Cohen's answer dated December 5, 2008, together with various discovery demands. Along with said demands was a Notice of Statements, which demanded the production of "any statements made by defendant, BENJAMIN COHEN, M.D. . . .". On or about May 3, 2010, the Plaintiffs responded to the Defendant's Notice for Statements by indicating that they were not in possession of any statements other than those contained in the medical records.
A deposition of the Plaintiff, Steven, was held on November 4, 2010, November 18, 2010 and December 14, 2010. The Plaintiff testified at his depositions that he had recorded telephone conversations between himself and the Defendant, Cohen. The said recordings have been the subject of several letters, conferences with the Court and an Order of this Court dated January 20, 2011, whereby the Plaintiffs were ordered to provide the Defendant's counsel with the audio tape recordings within fourteen (14) days.
In response to the Defendant's demand for the production of the audio tapes, the Plaintiffs' counsel served a response dated February 2, 2011, stating that the "plaintiffs are not in possession of materials responsive to this request". In opposition to the Defendant's motion, the Plaintiffs' counsel argues that the motion should be denied as the Plaintiffs have responded appropriately to the Defendant's demand. As such, the Plaintiffs' counsel contends that there has not been a refusal to respond to this discovery demand as well as there was no wilful failure to disclose the information. The Plaintiffs' counsel asserts that the Plaintiffs are unable to locate the audio recording and, as such, the drastic remedy of preclusion should not be granted. Furthermore, the Plaintiffs' counsel asserts that there is no proof of malfeasance or lack of cooperation by the Plaintiffs which would warrant the remedy of preclusion.
CPLR § 3126 provides that the court may make such orders prohibiting a disobedient party from introducing or producing any evidence at trial it has failed to produce due to the party's failure to abide with discovery and disclosure orders . This action is an extreme remedy and should not be taken absent a showing of willful and contumacious actions on behalf of the defaulting party. Davidson v. Aetna Cas. Sur. Ins. Co., 237 AD2d 321 (2d Dept. 1997). Despite the Plaintiffs' counsel's contention to the contrary, wherein he simply states the Plaintiffs cannot find the audio tape, the Court finds the Plaintiffs' actions in failing to abide by the discovery order of this Court is willful and contumacious. The Plaintiffs' counsel fails to include any affidavit by his clients indicating what attempts the Plaintiffs have made to locate the "missing" audio tape. It appears that Plaintiffs are content to allow the Defendant, Cohen, to testify under oath despite the fact that they have taken no steps to attempt to locate the audio tape. Without precluding the Plaintiffs from offering any statements from the audio tapes at trial, a likely result is that the Defendant's testimony could contradict the material contained in the audio tape and then miraculously the tape will appear to discredit the Defendant. This Court will not validate such conduct. Accordingly, the Defendant, Cohen's motion to preclude the Plaintiffs from introducing any testimony or evidence at the time of trial with regard to the contents of the audio tape(s) demanded by the Defendant, is GRANTED.
Next, the Court will address the Plaintiffs' motion, pursuant to CPLR § 3124, seeking an order compelling the Defendant, Winthrop, to provide the documents and materials demanded in the Plaintiffs' Notice to Produce, dated December 7, 2010. The Plaintiffs claims of medical malpractice are based upon the alleged negligent care and treatment of the Plaintiff, Steven, by the Defendants.
Specifically, the Plaintiff, Steven alleges that the Defendant, Winthrop failed to timely diagnose and treat discitis and osteomyelitis following the his back surgery performed by the Defendant, Cohen. The Plaintiff, Steven alleges that, while hospitalized at Winthrop, he developed a post-operative infection in his back at the site of the surgery which is a hospital acquired infection or nosocomial infection ("HAI").
The Plaintiffs' Notice to Produce, dated December 7, 2010, seeks disclosure of two categories of materials: (1) procedures, guidelines, protocols and standards regarding the control of HAI and prevention of HAI, and (2) documents, writings, reports, investigative materials and records regarding HAIs at Winthrop. The Plaintiffs' counsel posits that the demanded items are essential in proving the Plaintiff, Steven's claims of medical malpractice with respect to the Defendants.
While the Defendant, Winthrop responded to the Plaintiffs' Notice to Produce, it did not provide any of the requested documents therein based upon claims of privilege or confidentiality, and other objections that the Plaintiffs' requests are overbroad, vague and palpably improper. With respect to the objection that the requests are overbroad, the Plaintiff agreed to limit the time period of his request from the preceding two years of the date of the Plaintiffs' admission to Winthrop, March 31, 2006.
The Defendant, Winthrop's counsel argues in opposition to the motion to compel, that all of the infection control documents being sought by the Plaintiff are privileged pursuant to Public Health Law § 2805- 1, § 2805-m and Education Law § 6527 (3) and, thus, are not subject to disclosure.
Specifically, the Defendant, Winthrop claims that it is not required to disclose any of the documents requested in Nos. 1, 5, 9, 11, 13, 16, 17, 18 and 22, as the documents requested therein are confidential and privileged pursuant to Education Law § 6527 (3) and Public Health Law § 2805- 1. See Response to Plaintiffs' Notice to Produce, December 14, 2010, attached to the Plaintiffs' Notice of Motion as Exhibit "B". The aforementioned document demands request, in sum, all documents, reports, statistics, studies and/or other writings pertaining to the following: incidence and/or number of HAIs for the time period 2004-2008; actual rate of hand washing by medical personnel and employees at defendant hospital (compliance with hand washing guidelines, instructions, standards and/or protocols) for the time period 2004-2008; incidence and/or number of post-surgical infections at defendant hospital for the period 2004-2008. The document demands also request the following documents from the Defendant, Winthrop for the time period 2004-2008: minutes of meetings of the infection control committee; reports and/or findings issued by the infection control committee; all studies and/or reports of nosocomial infection rates; all internal reports pertaining to information about nosocomial infection rates; all reports pertaining to information about nosocomial infections provided to any public health agencies; and post-operative infection rates for surgical and post-surgical patients.
It is well settled that New York Education Law § 6527 (3) shields from disclosure "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 [and] any report required by the department of health". Education Law § 6527 (3); see Logue v. Velez, 92 NY2d 13, 16-17 (1998). The party seeking to invoke the quality assurance privilege bears the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes. See Marte v. Brooklyn Hosp. Ctr. , 9 AD3d 41 (2d Dept. 2004); Orner v. Mount Sinai Hosp., 305 AD2d 307, 311 (1st Dept. 2003); Van Caloen v. Poglinco, 214 AD2d 555, 557 (2d Dept. 1995). Records simply duplicated by a quality assurance committee are not necessarily privileged. See Marte v. Brooklyn Hosp. Ctr., supra at 48.
Further, Public Health Law § 2805-j requires hospitals to maintain a coordinated program for the identification and prevention of medical malpractice, including the establishment of a quality assurance committee which, among other things, is required to insure that information gathered pursuant to the program is utilized to review and to revise hospital policies and procedures.
Public Health Law § 2805-m mandates that the information required to be collected and maintained pursuant to Public Health Law § 2805-j, requiring a quality assurance committee, to be kept confidential and not released except to the Department of Health. Pursuant to Public Health Law § 2805- 1, hospitals are required to report certain incidents to the Department of Health. Among the "reportable" incidents are "patients' deaths or impairments of bodily functions in circumstances other than those related to the natural course of illness, disease or proper treatment". See Public Health Law § 2805.
In the instant matter, the Defendant, Winthrop asserts the quality assurance privilege with respect to several of the document requests claiming that those documents were collected and maintained in accordance with the established mechanisms of the Infection Control Committee at Winthrop.
In order to assert the privilege, "[a] hospital is required, at a minimum, 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". Bush v. Dolan, 149 AD2d 799, 800-801 (3d Dept. 1989).
In support of its opposition, the Defendant, Winthrop submitted the affidavit of Burke A. Cunha, M.D., the Chief of the Infectious Disease Division and Hospital Epidemiologist at Winthrop. His duties include the oversight of data collection with respect to nosocomial infections, and Winthrop's investigation and reporting requirements pursuant to the New York State Department of Health Reporting System. See Burke Affidavit, dated April 6, 2011. Dr. Burke's duties also include clinical and epidemiological evaluation of the data, including analysis of prevention and containment of infection in furtherance of the hospitals obligations. Dr. Burke states in his affidavit that the Infection Control Committee maintains a system to review and oversee mechanisms to improve patient care and prevent possible adverse outcomes, such as infection, as required by the New York State Department of Health. Dr. Burke explains the investigative review process as well as the data collection function which serves to track and collect data regarding clusters and/or outbreaks of nosocomial infections.
Dr. Burke further explains that data collected with respect to infections is used to evaluate potential causes for infection so that similar infections might be prevented in other patients. Moreover, as a result of the internal investigations, data collected with respect to clusters and/or outbreaks of infection serves a quality assurance purpose, such as improving future patient care and is performed in order to be in compliance with the New York State Department of Health.
Dr. Burke's Affidavit also states that, in order to carry out the quality assurance functions of the Infection Control, the Infection Control Committee periodically meets to discuss, evaluate and analyze the data collected related to the incidence and/or prevalence of infection within Winthrop. As such, Dr. Burke states that the minutes of the committee minutes are privileged as well.
In reply to the Defendant, Winthrop's opposition, the Plaintiffs' counsel avers that where defendants make claims of blanket privilege based on quality assurance, they should be required to identify the documents claimed to be privileged and to require production of same for in camera inspection. In this instance, the Court agrees.
The document requests for which the Defendant claims a privilege, on their face, appear to fall squarely within two of the three categories in Education Law § 6527 (3) that require exemption from disclosure: (1) records relating to medical review and quality assurance functions and (2) reports required by the Department of Health pursuant to Public Health Law § 2805- 1. A cursory review of the demands that request all items relating to the incidence and /or number of HAIs, post-surgical infections, minutes of meetings of the Infection Control Committee, reports and findings of the Infection Control Committee, infection rates, internal reports of infection rates, post-operative infection rates for surgical and post-surgical patients and reports provided to any public health agency, seem to be cloaked by the privileges contained within the Education Law and Public Health Law.
A recent decision by the Court of Appeals, Matter of Subpoena Duces Tecum to Doe, 99 NY2d 434 (2003), although a case involving nursing homes, lends guidance on what categories of documents are protected by the privilege and what categories are subject to disclosure. In that case, five categories of documents were sought for disclosure from a nursing home facility: (1) incident/accident reports, (2) monthly skin condition and pressure sore reports, (3) monthly weight reports, (4) infection control reports and (5) lists of any facility-acquired infections. The petitioner in that case claimed that the documents were privileged pursuant to the quality assurance privilege. While there were federal mandates that required nursing homes to create and maintain the reports that were being requested, as well as federal exemptions regarding same, the Court of Appeals examined the claimed privilege in the context of CPLR article 31 discovery provisions. In so analyzing, the Court of Appeals reasoned that "the purpose of hospital-based quality assurance committees is similar to that of quality assurance committees functioning in nursing homes — to ensure the proper delivery of services and the maintenance and improvement in quality of care". Id. at 439.
The Court of Appeals separated the requested documents as having two distinct origins, those documents that were created and maintained pursuant to federal and state regulations that may be utilized by quality assurance committees, and those documents that were specifically created or generated for quality assurance purposes. Id. at 440. There existed federal and state mandates that required the nursing home to generate and maintain such documents. The petitioner claimed that, notwithstanding the federal and state mandates, the privilege extended to the requested documents because the quality assurance committees generated and utilized the documents for quality assurance purposes. The Court of Appeals rejected that argument stating that:
"[w]here facilities are compelled by a statutory or regulatory dictate to maintain a particular record or report that is not expressly related to quality assurance, the fact that a quality assurance committee reviews such information for quality assurance purposes does not change the essential purpose of the document. A facility may not create a privilege where none would otherwise exist merely by assigning the duty for compliance or compilation to a quality assurance committee".
Matter of Subpoena Duces Tecum to Doe, supra at 440. Utilizing the guidance provided by the Court of Appeals, the Court will address the privilege claimed by the Defendant, Winthrop. The affidavit submitted by the Defendant clearly establishes that a committee was in fact created for the purpose of quality assurance and that data is collected to be reviewed by the committee for satisfying the objective of improved patient care. The affidavit states that the committee serves a data collection function relative to the distribution and determinants of infection within the hospital population and that this function is accomplished by conducting investigations, if needed [sic], to determine the cause of HAI. See Burke Affidavit, ¶ 3. The affidavit fails, however, to identify which of the records requested by the Plaintiffs are generated at the behest of the quality assurance committee for quality assurance purposes and which records are simply reviewed by the committee. The affidavit merely describes the review committee and the purpose of its different functions. It is in no way tailored to respond to the specific documents requests by the Plaintiffs.
Notably, the Defendant, Winthrop, has not furnished and provided to this Court, or to the Plaintiffs' counsel, a privilege log describing each document requested and how each document is specifically protected by the claimed privilege(s). The Court of Appeals recommended that "a party seeking to protect documents from disclosure compile a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake [an] in camera review. The log should specify the nature of the contents of the documents, who prepared the records and the basis for the claimed privilege". Matter of Subpoena Duces Tecum to Doe, supra at 442, quoting e.g. United States v. Construction Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir 1996).
It is difficult for the Court to determine whether the documents should be disclosed without a privilege log or any statements regarding whether the specific documents requested are generated and reviewed for the purpose of quality assurance. Accordingly, with respect to the Plaintiffs' Notice to Produce, Nos. 1, 5, 9, 11, 13, 16, 17, 18 and 22, where the Defendant, Winthrop seeks the protection of a privilege, the Defendant shall generate a privilege log identifying the nature and the contents of the documents, who prepared the documents and the nature of the claimed privilege. The Defendant shall submit to the Court, along with the privilege log, all of the documents it seeks exemption from disclosure. With respect to the time frame within which the Plaintiffs request the documents to be disclosed, the Court agrees that a four year time period is overbroad and unnecessary for the Plaintiff to prove his claims of medical malpractice. Accordingly, the Defendant, Winthrop shall provide the documents as aforementioned for the time period six (6) months prior to the Plaintiff's last discharge date of May 24, 2006.
Further, the Plaintiffs also request the following documents:
2.Any and all infection control procedures in place at defendant hospital for the period 2004-2008.
3.Guidelines, instructions, standards and/or protocols for hand washing by medical personnel and employees at defendant hospital for the period of 2004-2008.
4.Hand washing procedures for hospital and medical personnel at defendant hospital for the period of 2004-2008.
6.Any and all sterilization standards at defendant hospital for the period of 2004-2008.
7.Any and all disinfection standards at defendant hospital for the period 2004-2008.
8.Standards, instructions, reports and/or protocols for equipment cleaning with respect to prevention of nosocomial infection at defendant hospital for the period 2004-2008.
12.Standard and/or protocols promulgated by the infection control committee at defendant hospital for the period of 2004-2008.
14.All Infection Control Manuals, and any amendments or supplements thereto, of the defendant hospital for the period of 2004-2008.
15.All Operating Room Manuals, and any amendments or supplements thereto, of the defendant hospital for the period of 2004-2008.
19.All infection control practices for surgical and post-surgical patients at defendant hospital for the period of 2004-2008.
20.All infection control standards for surgical and post-surgical patients at defendant hospital for the period of 2004-2008.
21.Housekeeping procedures at defendant hospital for the period of 2004-2008.
See Plaintiffs' Notice to Produce, dated December 7, 2010, attached to the Plaintiffs' Notice of Motion as Exhibit "A". The Court agrees with the Defendant's counsel that the request for several of the foregoing documents are overbroad in the context of the time period requested. Accordingly, the Defendant, Winthrop is directed to disclose the documents in response to request Nos. 2, 3, 4, 7, 10, 12, 14, 19 and 20 for the time period of March 31, 2006 through May 24, 2006, the time in which the Plaintiff was first admitted and last released.
With regard to request No. 6, the Plaintiffs' counsel is directed to specify the department(s) for which the sterilization standards of the hospital are sought. With regard to request No. 8, the Plaintiffs' counsel is directed to specify the type of equipment for which the documents are sought. Once amended to reflect the directive of the Court for request Nos. 6 and 8, the Defendant shall disclose those documents responsive to the requests, as amended, for the time period of March 31, 2006 through May 24, 2006. With regard to regard to request No. 15, the Defendant shall disclose the Operating Room Manuals of the specific operating room in which the Plaintiff, Steven's surgery took place for the time period of March 31, 2006 through May 24, 2006. With regard to request No. 21, the Plaintiffs' counsel is directed to narrow and/or define the term "housekeeping procedures" and directed to specify for which department(s) those procedures are requested. Once amended to reflect the directive of the Court, the Defendant shall disclose those documents responsive to the request, as amended, for the time period of March 31, 2006 through May 24, 2006.
Accordingly, it is hereby
ORDERED, that the Defendant, Cohen's motion (Mot. Seq. 02), pursuant to CPLR § 3126 (2), is GRANTED. Plaintiffs are precluded from introducing any testimony or evidence at the time of trial with regard to the contents of the audio tape(s) the Plaintiffs have failed to provide to the Defendants; and it is further
ORDERED, that the Plaintiffs' motion (Mot. Seq. 03), pursuant to CPLR 3124, seeking to compel the Defendant, Winthrop to respond to the Plaintiffs' Notice to Produce, dated December 7, 2010, is GRANTED, to the extent provided in this order; and it is further
ORDERED, that the Defendant, Winthrop's counsel is directed to submit to the Court for in camera inspection documents in response to the Plaintiffs' Notice to Produce, Nos. 1, 5, 9, 11, 13, 16, 17, 18 and 22, together with a privilege log identifying the nature and contents of the documents, who prepared the documents and the nature of the claimed privilege, to the extent provided in this order, within forty-five (45) days of the date of this order; and it is further ORDERED, that the Defendant, Winthrop's counsel is directed to provide to the Plaintiffs' counsel documents in response to the Plaintiffs' Notice to Produce, Nos. 2, 3, 4, 7, 10, 12, 14, 15, 19 and 20, to the extent provided in this order, within thirty (30) days of the date of this order; and it is further
ORDERED, that the Plaintiffs' counsel is directed to amend Plaintiffs' Notice to Produce, Nos. 6, 8 and 21, to the extent provided in this order, and serve same upon the Defendant's counsel within ten (10) days of the date of this order. The Defendant, Winthrop's counsel is directed to provide responses to the Plaintiffs' requests, as amended, within thirty (30) days of service thereof.
All applications not addressed herein are hereby DENIED.
This constitutes the decision and order of this Court.