Opinion
33517/07.
Decided May 29, 2009.
Geri B. Horenstein, Esq., Martin Clearwater Bell, New York, NY, Counsel for Cheruku, NG Hospital.
McAloon Friedman, P.C., New York, NY, Counsel for Stuchin.
Eric Turkewitz, Esq., New York, NY, Attorney for Plaintiff.
Upon the foregoing papers, plaintiffs Vincenzo Vozzo by Anna Vozzo as his attorney in fact and Melina Vozzo, move for an order, pursuant to CPLR 3126, compelling discovery or, in the alternative, striking the answers of defendants Ravinder R. Cheruku, Edward Ng, and Lenox Hill Hospital (the Hospital) for their failure to comply with the Third Demand for Discovery and Inspection, dated November 5, 2008 (the Demand). Defendants Cheruku, Ng and the Hospital (herein referred to as defendants) cross move: (1) pursuant to CPLR 3103, for a protective order vacating plaintiff's Demand; and (2) pursuant to 22 NYCRR § 130-1.1(a), for an order imposing sanctions and costs on plaintiffs' counsel for bringing a meritless motion.
In their reply affirmation, plaintiffs aver that defendant Steven Stuchin responded to their Demand, so that no relief is sought as against him.
Facts and Procedural Background
Plaintiffs commenced this medical malpractice action seeking to recover damages for injuries allegedly sustained by Vincenzo Vozzo (plaintiff) on July 28, 2006, when he underwent hip surgery and came out of the surgery profoundly brain damaged.
As is relevant herein, on November 5, 2008, plaintiffs served the Demand asking for:
"1. All negative outcome and incident reports involving conditions and occurrences like those alleged in the complaint.
"2. The complete personnel files of those who treated Vincenzo Vozzo.
"3. All documents and information relating to the demotion of any personnel who treated Vincenzo Vozzo.
"In the event defendants believe any document is subject to a privilege, defendants must furnish a privilege log that identifies the name of the document, its authors, the date of creation and the type of privilege that is claimed."
By response dated November 25, 2008, defendants objected to the Demand on the grounds that it is palpably improper, vague, overly broad, lacking in reasonable specificity, not reasonably calculated to lead to the discovery of admissible evidence and privileged pursuant to Public Health Law § 2805 and Education Law § 6527; no privilege log was provided and no documents that were claimed to be privileged were identified.
The Parties' Contentions
Plaintiffs
In support of their motion, plaintiffs argue that the material sought is properly discoverable and is demanded in accordance with the holdings of recent cases, i.e., Simmons v Northern Manhattan Nursing Home, Inc. ( 52 AD3d 351), Marte v Brooklyn Hospital Center ( 9 AD3d 41) and Jean-Louis v Thakur (21 Misc 3d 1141A [2008]).
Defendants
In opposition to plaintiffs' motion and in support of their cross motion, defendants argue that plaintiffs are not entitled to the disclosure of negative outcome and incident reports involving "conditions and occurrences like those alleged in the Complaint," since those reports are created and maintained as part of the Hospital's Quality Assurance Program and are therefore privileged pursuant to Public Health Law §§ 2805-l and 2805-m. They further argue that the Demand is also palpably improper and not reasonably calculated to lead to the discovery of admissible information and accordingly must be characterized as an impermissible fishing expedition. Defendants further argue that this demand is improper in that plaintiffs fail to establish any time limitation and the complaint includes very broad allegations of alleged negligence. The demand is also not limited to negligence regarding plaintiff, thereby compelling the conclusion that information concerning other plaintiffs is protected by the Federal Health Insurance Portability and Accountability Act of 1996 (hereinafter HIPAA) and not relevant to the care rendered to plaintiff.
Defendants also allege that plaintiffs are not entitled to the personnel files of all of the individuals who treated plaintiff over the course of his three and one-half month admission. In so arguing, defendants assert that as a threshold issue, attending physicians do not have personnel files, but instead have credentialing files, which files are maintained as part of the Hospital's Quality Assurance Program pursuant to Public Health Law §§ 2805-j(1)(b) and 2805-j(1)(c) and Education Law § 6527(3), so that these records are privileged pursuant to Public Health Law §§ 2805-j(1)(f) and m. Similarly, records regarding the demotion of any attending physicians who are members of the medical staff would be privileged for the same reasons. With regard to those individuals who treated plaintiff but are not attending physicians, defendants argue that their personnel files are not discoverable on the ground that the files contain private and confidential information including, for example, social security numbers, drivers' license numbers, tax records and family contact information.
In addition, it is argued that plaintiffs' reliance upon Simmons ( 52 AD3d 351) and Jean-Louise (21 Misc 3d 1141A) is misplaced since in those cases, the court ordered disclosure only after deciding that defendant failed to meet its burden of demonstrating that the documents sought were privileged in relation to a quality assurance function. Further, Simmons ( 52 AD3d 351) pertained to a nursing home and the instant case involves a hospital, so that different statutes are implicated. Moreover, defendants herein provide an affidavit from Kathryn Maranga, the Associate Director of Regulatory Affairs at the Hospital who supervises the Hospital's Quality Assurance Program, in which she alleges that all of the negative outcome and incident reports regarding patient treatment in the possession of the Hospital have been generated exclusively in furtherance of that Program. An affidavit submitted by Bonnie Boodee, the Manager of Medical Affairs Office, is relied upon to establish that the credentialing files of all attending physicians are created, maintained and utilized solely for the purpose of evaluating physicians who are members of the Hospital's staff as required by the Public Health Law, and as such, are also generated in furtherance of the Quality Assurance Program. Finally, the affidavit of Justin Lilien, the Manager of Employee and Labor Relations at the Hospital, is offered to establish that the personnel files of all remaining Hospital employees who treated plaintiff contain private and confidential information which cannot be released in the absence of a compelling reason, which is not present herein.
Defendants also argue that they are not obligated to provide a privilege log, since in Marte ( 9 AD3d 41), the court merely "recommended" that a privilege log be prepared to aid the court in an in camera inspection. Moreover, this recommendation was premised upon a finding that the hospital's motion did "not reveal any statement by the Hospital that it actually prepared any committee review incident reports for the Department of Health as required under Public Health Law § 2805-l" ( Marte, 9 AD3d at 46), whereas defendants herein submit the affidavits of Maranga, Boodee and Lilien to establish that the demanded documents are privileged. In the alternative, defendants assert that creation of a privilege log in the instant case would be unduly burdensome, since the log demanded would encompass virtually every negative outcome report ever created by the Hospital, as well as personnel files for at least 256 medical care providers who rendered care to plaintiff during his lengthy stay at the Hospital, many of whom had only minimal contact with him. Defendants also contend that plaintiffs' demand for "[t]he complete personnel files of those who treated [plaintiff]" is similarly improper in that it seeks information with regard to all of health care providers and the files are likely to include a myriad of irrelevant items.
Plaintiffs' Reply
In reply, plaintiffs assert that the burden of establishing privilege is upon the party claiming it and defendants fail to sustain their burden. In this regard, plaintiffs claim that defendants refuse to provide a privilege log and they fail to identify any of the documents over which they claim a privilege. Further, the privilege created by Education Law § 6527(c) does not apply to statements made by a defendant to an action.
With regard to defendants' claim that their demands are over broad in that they refer to all persons who treated plaintiff during his hospitalization, plaintiffs now limit their Demand to the people named in the action, i.e., those who treated plaintiff on July 28, 2006, the day of the surgery at issue herein.
The Law
It is axiomatic that pursuant to CPLR 3101(a), "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" ( see generally Allen v Crowell-Collier Publishing Co., 21 NY2d 403). It is equally well settled that "unlimited disclosure is not permitted'" ( LaPierre v Jewish Bd. of Family Children Servs. , 47 AD3d 896 , 896, citing Silcox v City of New York, 233 AD2d 494, 494). Further, "information which is privileged is not subject to disclosure no matter how strong the showing of need or relevancy" ( Lilly v Turecki, 112 AD2d 788, 789, citing Cirale v 80 Pine St. Corp., 35 NY2d 113, 117; Brady v Ottaway Newspapers, 97 AD2d 451, 452, affd 63 NY2d 1031; Matter of Love Canal, 92 AD2d 416, 422).
"Pursuant to Education Law § 6527(3), certain documents generated in connection with the performance of a medical or quality assurance review function,' or which are required by the department of health pursuant to' Public Health Law § 2805-l, are generally not discoverable" ( Fray v Fulton Commons Care Ctr. , 51 AD3d 968 , 968, citing Ross v Northern Westchester Hosp. Assn. , 43 AD3d 1135 , 1136; Marte, 9 AD3d at 42; accord Megrelishvili v Our Lady of Mercy Med. Ctr., 291 AD2d 18, 25, lv denied 99 NY2d 532 [Education Law § 6527(3) exempts from disclosure "records relating to performance of a medical or a quality assurance review function" and Public Health Law § 2805-m confers complete confidentiality on information gathered by a hospital in accordance with Public Health Law §§ 2805-j and 2805-k(1) ]). "[T]he privilege afforded under the Public Health Law is intended to protect "against disclosure of materials relating to quality assurance activities [which] apply to hospital malpractice prevention programs and incident reporting"' ( Orner v Mount Sinai Hosp., 305 AD2d 307, 310, quoting Logue v Velez, 92 NY2d 13, 17, quoting Governor's Program Bill, Bill Jacket, L 1986, ch 266, at 7).
Public Health Law § 2805-l requires all hospitals to report certain enumerated incidents described therein to the Department of Health in a manner and within time periods as specified by the regulations promulgated.
Public Health Law § 2805-m provides, in pertinent part, that "any incident reporting requirements imposed upon diagnostic and treatment centers pursuant to the provisions of this chapter shall be kept confidential and shall not be released except to the department."
Public Health law § 2805-j pertains to the establishment of and procedures to be followed by medical, dental and podiatric malpractice prevention programs, including a staff privileges sanction procedure.
Public Health Law § 2805-k pertains to the investigations required to be undertaken prior to granting or renewing professional privileges or association of any physician, dentist or podiatrist.
As is also relevant herein, "the defendant, as the party seeking to invoke the privilege, had the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes" ( Ross, 43 AD3d at 1136, citing Marte, 9 AD3d at 46; accord Estate of Mirco Teta v Mercy Med. Ctr., ___ AD3d ___, 2009 NY Slip Op 1609 [2009]). "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'" ( Kivlehan v Waltner , 36 AD3d 597 , 599, quoting Bush v Dolan, 149 AD2d 799, 800-801). It is also well settled that "merely because documents are placed in a quality assurance file does not per se render these documents privileged from disclosure under the Education Law § 6527(3)'" and the court may, under some circumstances, "conduct an in camera inspection of the documents in the file so that it may determine which of them, if any, are entitled to the statutory privilege" ( Spradley v Pergament Home Ctrs., 261 AD2d 391, 392, citing Heitman v Mango, 237 AD2d 330, 331).
It must also be recognized that Public Health Law § 18(6), which prevents disclosure of third-party health records without authorization, and/or CPLR 4505, the physician/patient privilege, and/or HIPAA would prevent the disclosure of any information that would also reveal that patient's medical status, so that discovery pertaining to other patients should not be permitted pursuant to CPLR 4505 and the intent behind HIPAA ( see e.g. Marte, 9 AD3d at 47, citing Gunn v Sound Shore Med. Ctr. , 5 AD3d 435).
In addressing the individual demands made by plaintiffs, the court also recognizes that a plaintiff's motion to compel discovery should be denied where the demand is for a defendant doctor's initial and subsequent renewal applications for hospital privileges, since those records are exempt from disclosure pursuant to Education Law § 6527 and Public Health Law article 28 because they relate to a hospital's performance of a medical or quality assurance review function ( Brandes v North Shore Univ. Hosp. , 1 AD3d 550 , 551, citing Logue, 92 NY2d 13). In addressing the demand for the production of the personnel file of a defendant doctor, it has been held that the demand, as limited by indicating that the plaintiff is interested in "any prior complaints and incident reports regarding the failure of defendant . . . to adequately anesthetize patients up to and including said defendant's participation in the surgery upon the plaintiff herein," properly specified the documents to be disclosed with reasonable particularity ( Heitman, 237 AD2d at 331, citing Conway v Bayley Seton Hosp., 104 AD2d 1018). Further, "[w]hile an incident report may be protected from disclosure pursuant to Education Law § 6527 (3) and Public Health Law § 2805-m, any statements therein made by an individual defendant to [an] action are not immune from disclosure" ( Santero v Kotwal , 4 AD3d 464 , 467; accord Klingner v Mashioff , 50 AD3d 746 [statements made by several of the individual defendants regarding the subject matter of the action were not exempt from disclosure by Education Law § 6527(3) or Public Health Law § 2805-m, so that the hospital must redact the privileged information and produce the redacted document]; vanBergen v Long Beach Med. Ctr., 277 AD2d 374, 375 [to the extent that statements were made by any party to the action which resulted from the quality control review process, they were not immune from disclosure and the hospital must disclose any such statements to the plaintiff]).
Discussion
As a threshold issue, the court agrees with defendants' assertion that the Simmons case ( 52 AD3d 351) is not controlling herein to the extent that the holding is predicated upon a finding that the defendant in that case was compelled by regulation to maintain and continuously collect the information demanded pursuant to 10 NYCRR 415.15[a][3][i], a regulation that applies only to nursing homes, and not to hospitals ( Simmons, 52 AD3d at 352). The inquiry, however, does not end here.
In addressing the substance of the Demand, the court first finds that plaintiffs' request for the production of all negative incident reports involving conditions and occurrences like those alleged in the complaint to be over broad in that it is not limited in time. Accordingly, the court limits this demand to the three-year period preceding the incident at issue herein ( see generally Ross, 43 AD3d 1135; Marte, 9 AD3d 41). Further, with regard to the request for the production of personnel records or records pertaining to the demotion of persons who treated plaintiff, plaintiffs concede that the Demand is over broad, since counsel limits his request for documents to records pertaining to the defendants that treated plaintiff on the day of his surgery. The demand for both personnel files and records pertaining to demotions shall be deemed so limited ( see generally Simmons, 52 AD3d at 351).
In addressing the merits of the dispute, it is clear that plaintiffs' demand for "[a]ll negative outcome and incident reports involving conditions and occurrences like those alleged in the complaint" is improper in that those documents are privileged to the extent that they were prepared for the Department of Health, as required pursuant to Public Health Law § 2805-l ( see Public Health Law § 2805-m), or as prepared pursuant to the Hospital's Quality Assurance Program ( see Public Health Law § 2805-j; see generally Klingner, 50 AD3d 746). Similarly, "[t]he complete personnel files of those who treated" plaintiff are privileged to the extent that the files contain applications for privileges at the Hospital, as required by Public Health Law § 2805-k ( see Public Health Law § 2805-m). As argued by defendants, it is also clear that personal information in the doctors' files, such as, for example, social security numbers, drivers license number, family contacts, etc., are not material and necessary to plaintiffs' prosecution of the instant action. Finally, "[a]ll documents and information relating to the demotion of any personnel who treated" plaintiff are also held to be privileged to the extent that the demotion resulted from actions taken under the Quality Assurance Program ( see generally Education Law § 6527; Estate of Mirco Teta, 2009 NY Slip Op 1609; Kivlehan, 36 AD3d at 598).
The court is not persuaded, however, that all of the documents demanded by plaintiffs are privileged, since defendants fail to sufficiently identify and particularize the documents that they refuse to produce. Instead, they "merely asserted that a privilege [applies] to the requested documents without making any showing as to why the privilege attached" ( Ross, 43 AD3d at 1136). In this regard, defendants fail to show that the Hospital has a review procedure in place and that the information for which the exemption is claimed was obtained or maintained in accordance with that procedure ( see generally Simmons, 52 AD3d at 351 [defendant failed to meet its burden of demonstrating that all documentation of and from' the Quality Assessment and Assurance Committee regarding the decedent related to the Committee's quality assurance function, so that the demand for such documentation was properly sustained, subject to the understanding that documentation' does not include the reports' that were statutorily protected]; Marte, 9 AD3d at 46 [a review of the affirmation in support of the hospital's motion for a protective order and the attached documents did not reveal any statement by the hospital that it actually prepared any committee review incident reports for the Department of Health as required under Public Health Law § 2805-l, so that the hospital failed to establish its burden that any documents were prepared under Public Health Law § 2805-l and/or Education Law § 6527(3)]). More specifically, although defendants submit the affidavits of Lilien, Boodee and Maranga to support their conclusion that the demanded documents were so generated, the affidavits provide no details with regard to the author of the allegedly privileged documents, the dates that they were created, the issues addressed therein or the procedures or Hospital Quality Assurance procedures pursuant to which the documents were prepared. Further, if an investigation of the incident at issue herein was undertaken by the Hospital, it is reasonable to assume that statements were taken from the named defendants. Defendants, however, do not allege that such statements, which are clearly discoverable, are not included in the documents demanded by plaintiffs ( see generally Santero, 4 AD3d at 467; vanBergen, 277 AD2d at 375; Jean-Louis, 21 Misc 3d 1141A). Finally, given the seriousness of the injury at issue herein, as well as the possibility of similar incidents of alleged malpractice in the past, it is reasonable to assume that some reports or records exist in the form of complaints from other patients, medical care providers, Hospital social workers, etc., which records would not be protected from disclosure.
Accordingly, as the Appellate Division, Second Department held in Kivlehan ( 36 AD3d 597):
"Here, in opposition to the motion to compel disclosure, [the hospital] submitted an affidavit from its credentials coordinator, who asserted that [the defendant doctor's] file only contains information that was collected for quality assurance purposes and to comply with relevant provisions of the Public Health Law concerning the credentialing of physicians.' Contrary to the determination of the Supreme Court, this showing was insufficient to demonstrate that documents maintained by [the hospital] with regard to [the defendant doctors] were actually generated at the behest of [the hospital's] Quality Assurance Department. 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 [1989]). Accordingly, that branch of the plaintiffs' motion which sought to compel discovery of those items was improperly denied ( cf. Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434, 440 [2003])."
( Kivlehan, 36 AD3d at 598-599).
The court thus concludes, as has been held in numerous similar cases, that it is impossible on the record now before the court to determine whether the documents demanded, or any portions thereof, are privileged as argued by defendants or discoverable as argued by plaintiffs. Accordingly, the documents for which defendants claim a privilege must be produced for an in camera inspection by this court ( see e.g. Fray, 51 AD3d at 969, citing Ross, 43 AD3d at 1136; Santero, 4 AD3d at 465; Spradley, 261 AD2d at 392; Lakshmanan v North Shore Univ. Hosp., 202 AD2d 398, 399; accord Chardavoyne v Cohen , 56 AD3d 508 , 509 [the court should have conducted an in camera inspection of the documents responsive to plaintiff's request to enable it to determine which of the documents, or portions thereof, if any, were entitled to the statutory privileges]). To facilitate this in camera review, defendants are directed to compile a privilege log that specifies the nature of the contents of the documents, who prepared the records, and the specific request or procedure made pursuant to the Quality Assurance Program that defendants allege forms the basis for the claimed privilege or they shall be precluded from claiming said privilege as to the unspecified document(s) ( see generally Matter of Subpoena Duces Tecum to Doe, 99 NY2d 442; Marte, 9 AD3d at 48; Jean-Louis, 21 Misc 3d 1141(A); accord Klingner, 50 AD3d 746 [the court properly directed the defendant hospital to submit to the court the documents set forth in the hospital's privilege log for in camera inspection in order to assist the court in determining whether the documents in fact are privileged under Education Law § 6527(3) and Public Health Law § 2805-m]).
In complying with this order, defendants shall not be required to produce negative outcome and incident reports involving occurrences like those alleged in the complaint which were submitted to the Department of Health pursuant to Public Health Law § 2805-1. Defendants similarly shall not be required to produce documents relating to the demotion of the defendants who treated plaintiff to the extent that such documents reflect actions taken by the Quality Assurance Program, unless such documents contain statements made any defendant herein; if such is the case, a redacted copy of the document shall be provided. Further, in order to protect the identity of other patients, as is required pursuant to HIPAA, defendants are directed to redact the names of all patients other than plaintiff that appear in any document, so as protect other patient's identity and privacy ( see e.g. Marte, 9 AD3d at 47; Gunn, 5 AD3d 435). Defendants are also directed to produce all documents contained in the individual defendants' personnel files, with the exclusion of applications and/or renewal applications for privileges at the Hospital and documents prepared pursuant to the procedures of the Quality Assurance Program and/or Public Health Law § 2805-k.
That branch of defendants' cross motion for a protective order is held in abeyance pending such review
Defendants' Demand for Sanctions
The Parties' Contentions
In their cross motion, defendants demand the imposition of sanctions against plaintiffs, arguing that the instant motion is lacking in merit. In support of their demand, they further argue that plaintiffs' motion is procedurally improper in that plaintiffs should have moved to compel disclosure, rather than moving for an order striking their answer.
Plaintiffs oppose the imposition of sanctions, arguing that inasmuch as their demand was drafted in accordance with the holding of Simmons, 52 AD3d 351, Marte, 9 AD3d 41 and Jean-Louis, 21 Misc 3d 1141A, their motion is not frivolous and defendants' demand for sanctions should be denied.
The Law
As is relevant herein, pursuant to 22 NYCRR 130-1.1(a), "[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part." Rule 130-1.1(c)(1) provides that conduct is frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law."
Discussion
Herein, the court declines defendants' request to impose a sanction pursuant to Rule 130-1.1 against plaintiffs, since, as the above decision makes clear, plaintiffs' motion is not frivolous ( see generally Chardavoyne, 56 AD3d at 509, citing Ain v Glazer, 216 AD2d 428; Matter of Kellner, 215 AD2d 560). In so holding, the court also notes that defendants' contention that plaintiffs improperly moved to strike their answer, instead of moving to compel disclosure, is similarly without merit, since plaintiffs sought this relief in the alternative.
Conclusion
For the above stated reasons, plaintiffs' motion for an order compelling defendants to respond to their Demand is granted to the extent of directing defendants to produce the documents responding to said demand as directed above, along with a privilege log, for an in camera review before this court. Said documents shall be delivered to Court Room 17.21 at 320 Jay Street, Brooklyn, on or before June 30, 2009. Pending review of said documents, that branch of defendants' cross motion seeking to vacate plaintiffs' Demand shall be held in abeyance. All other relief requested is denied.
The foregoing constitutes the order and decision of this court.