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JAMES A. SLAYTON AND KATHLEEN L. SLAYTON, PLAINTIFFS–RESPONDENTS, v. VENKATESWARA R. KOLLI, M.D., ET AL., DEFENDANTS, KENMORE MERCY HOSPITAL, DEFENDANT–APPELLANT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff James A. Slayton while undergoing laparoscopic cholecystectomy surgery. Plaintiffs moved for, inter alia, an order compelling defendants to respond to their discovery demands. At issue herein is a “patient/visitor occurrence report,” which defendant Kenmore Mercy Hospital (hospital) asserts is privileged, and thus not discoverable, pursuant to Public Health Law § 2805–m and Education Law § 6527(3). Following an in camera review of the report, Supreme Court granted plaintiffs' motion to the extent of ordering the hospital to disclose the report to plaintiffs' counsel within 20 days of service of the order with notice of entry. This Court granted a stay of enforcement of that order pending the hospital's appeal.
Initially, we conclude that the court erred in holding that the privilege set forth in Education Law § 6527(3) is inapplicable to the report. Inasmuch as the report is not a “hospital-wide [plan] to improve quality and prevent malpractice,” this Court's holding in Aldridge v. Brodman is inapplicable (49 AD3d 1192, 1193–1194). We nevertheless conclude that the court did not abuse its discretion in granting plaintiffs' motion to the extent of ordering the hospital to disclose the report to plaintiffs (cf. Matter of Coniber v. United Mem. Med. Ctr., 81 AD3d 1329, 1330). Here, the hospital failed to meet its burden of establishing that the report was “generated in connection with a quality assurance review function pursuant to Education Law § 6527(3) or a malpractice prevention program pursuant to Public Health Law § 2805–j” (id. at 1330 [internal quotation marks omitted] ). Morever, with respect to the privilege set forth in Public Health Law § 2805–j, we deem the conclusory statement in the affidavit submitted by the hospital's director of risk management that “[t]he report was prepared solely and exclusively in connection with the hospital's malpractice prevention program, as required by statute” to be insufficient to meet the hospital's burden of demonstrating that the form was actually generated at the behest of the hospital's malpractice prevention program.
Frances E. Cafarell
Clerk of the Court
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Docket No: CA 12–02046
Decided: November 08, 2013
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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