BROOK v. John Does #1–5, Defendants. (2018)

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered October 26, 2017, which granted nonparty Arch Insurance Group's motion to quash a subpoena served by plaintiffs and denied plaintiff Adam Brook, M.D., Ph.D.'s motion to compel compliance, unanimously affirmed, with costs.  Order, same court and Justice, entered August 4, 2017, which, insofar as appealed from as limited by the briefs, denied plaintiffs' request to compel production of documents withheld or redacted on the basis of attorney-client privilege or quality assurance review privilege, unanimously modified, on the law and the facts and in the exercise of discretion, to grant plaintiffs' request to the extent of ordering defendants to un-redact the names and identifying information of participants in the quality assurance review process, and otherwise affirmed, without costs.

Plaintiffs Adam Brook, M.D., Ph.D. (Brook), a cardiothoracic and general surgeon, and Adam Brook, M.D., Ph.D., P.L.L.C., bring suit against Brook's former employer, defendant Peconic Bay Medical Center (PBMC), and its employees, in connection with PBMC's filing of an Adverse Action Report (AAR) with the National Practitioner Data Bank. Nonparty Arch Insurance Group is PBMC's excess liability insurer.

Arch's motion to quash the subpoena served by plaintiffs was properly granted, because the documents sought are not relevant (see generally Forman v. Henkin, 30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ).

On appeal, plaintiffs narrow their request to PBMC's June 2014 and most recent loss runs, as well as all documents concerning Brook.  However, even as so narrowed, the subpoena is impermissibly overbroad.  It is undisputed that no malpractice claim was ever filed against Brook.  Thus, it is unlikely that Arch would be in possession of any documents regarding him, apart from the loss runs, which primarily contain irrelevant information about malpractice incidents involving other doctors, extending back more than 10 years.

Plaintiffs contend that the loss runs will show that Brook was treated differently from other doctors employed by PBMC who were suspected of malpractice.  However, PBMC's treatment of doctors suspected of malpractice is immaterial.  Plaintiffs' claims in this suit are based on PBMC's alleged misrepresentations about the existence of an investigation and the filing of an AAR, and the AAR did not report plaintiff for malpractice but for resigning during an ongoing investigation (see 42 U.S.C. § 11133[a][1][B][i];  45 C.F.R. 60.12[a][1][ii][A] ).

Because we find that the documents sought by the subpoena are not relevant, we need not reach the issue of whether they may properly be withheld as privileged or confidential.

We also find that the motion to quash was timely (see CPLR 3120[3];  CPLR 3122[a][1];  Matter of Brunswick Hosp. Ctr. v Hynes, 52 N.Y.2d 333, 339, 438 N.Y.S.2d 253, 420 N.E.2d 51 [1981] ).

Plaintiffs' request to compel defendants to produce certain documents withheld on the basis of attorney-client privilege was properly denied, because plaintiffs failed to make the requisite evidentiary showing to warrant either application of the crime-fraud exception or in camera review by this Court (see Matter of New York City Asbestos Litig., 109 A.D.3d 7, 10–11, 966 N.Y.S.2d 420 [1st Dept. 2013], lv dismissed 22 N.Y.3d 1016, 981 N.Y.S.2d 347, 4 N.E.3d 357 [2013];  Horizon Asset Mgt., Inc. v. Duffy, 82 A.D.3d 442, 443, 918 N.Y.S.2d 85 [1st Dept. 2011] ).

Plaintiffs' request to compel defendants to un-redact quality assurance information related to incidents involving other doctors was properly denied, because this information is irrelevant to plaintiffs' claims.

However, plaintiffs' request to compel defendants to un-redact the identities of nonparty participants in the quality assurance review process should be granted.  Education Law § 6527(3) and Public Health Law § 2805–m protect documents “prepared by or at the behest of” a quality assurance committee (see Clement v. Kateri Residence, 60 A.D.3d 527, 527, 875 N.Y.S.2d 66 [1st Dept. 2009] ), as well as testimony regarding the proceedings of such a committee (see Chardavoyne v. Cohen, 56 A.D.3d 508, 509, 868 N.Y.S.2d 84 [2d Dept. 2008] ).  However, they do not protect the mere identities of participants.

We have considered plaintiffs' remaining arguments and find them unavailing.

Defendants' request that we impose sanctions on plaintiffs was improperly based primarily on conduct subsequent to the issuance of the orders on appeal.