PASEK v. CATHOLIC HEALTH SYSTEM INC (2018)

MEMORANDUM AND ORDER

Plaintiff, individually and as power of attorney for her husband, James G. Pasek (Pasek), commenced this medical malpractice action seeking damages for injuries sustained by Pasek, who was admitted to Mercy Hospital of Buffalo (defendant) for mitral valve repair surgery in February 2014.  Complications ensued during the hospitalization that caused Pasek to go into cardiac arrest, which required emergency surgery and resulted in permanent physical and cognitive impairments.  Plaintiff sought an investigation by the Department of Health (DOH), and plaintiff was thereafter advised by the DOH that it had cited defendant “for failing to inform Pasek or his family of ‘the unintentional disconnection of [heart-lung machine] tubing’ while he was en route to the operating room for emergency surgery” (Matter of Pasek v. New York State Dept. of Health, 151 A.D.3d 1250, 1251, 56 N.Y.S.3d 627 [3d Dept. 2017] ).  Plaintiff thereafter moved to compel defendant to produce any reports pertaining to the incident.

We conclude that Supreme Court, following an in camera review, did not abuse its discretion in denying plaintiff's motion with respect to disclosure of the document at issue, entitled “occurrence event summary report” (hereafter, report) (see generally Voss v. Duchmann, 129 A.D.3d 1697, 1698, 12 N.Y.S.3d 428 [4th Dept. 2015] ).  Defendant met its burden of establishing that the information contained in 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’ ” (Learned v. Faxton–St. Luke's Healthcare, 70 A.D.3d 1398, 1399, 894 N.Y.S.2d 783 [4th Dept. 2010] ).  Thus, the information contained in the report is expressly exempted from disclosure under CPLR article 31 pursuant to the confidentiality conferred on information gathered by defendant in accordance with Education Law § 6527(3) and Public Health Law § 2805–m (see DiCostanzo v. Schwed, 146 A.D.3d 1044, 1045–1046, 45 N.Y.S.3d 625 [3d Dept. 2017];  Kivlehan v. Waltner, 36 A.D.3d 597, 599, 827 N.Y.S.2d 290 [2d Dept. 2007];  Powers v. Faxton Hosp., 23 A.D.3d 1105, 1106, 803 N.Y.S.2d 871 [4th Dept. 2005] ).  Contrary to plaintiff's contention that the privilege is “negated” because the report purportedly contains information that was improperly omitted from Pasek's medical records, it is well settled that “information which is privileged is not subject to disclosure no matter how strong the showing of need or relevancy” (Lilly v. Turecki, 112 A.D.2d 788, 789, 492 N.Y.S.2d 286 [4th Dept. 1985];  see Cirale v. 80 Pine St. Corp., 35 N.Y.2d 113, 117–118, 359 N.Y.S.2d 1, 316 N.E.2d 301 [1974] ).  Indeed, the purpose of the privilege “is ‘to enhance the objectivity of the review process’ and to assure that medical review [or quality assurance] committees ‘may frankly and objectively analyze the quality of health services rendered’ by hospitals ․, and thereby improve the quality of medical care” (Logue v. Velez, 92 N.Y.2d 13, 17, 677 N.Y.S.2d 6, 699 N.E.2d 365 [1998];  see Lilly, 112 A.D.2d at 788, 492 N.Y.S.2d 286).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: