Donald Taylor, Plaintiff, v. Montefiore Medical Center, Defendant-Respondent. (2020)

Order, Supreme Court, Bronx County (George J. Silver, J.), entered on or about December 19, 2018, which, to the extent appealed from, denied plaintiff Yvette Bamberg–Taylor's motion to compel defendant to produce a witness for deposition to answer questions regarding general hospital credentialing procedures, unanimously affirmed, without costs.

The discovery sought in the motion to compel is protected by the statutory privileges of Education Law § 6527(3) and Public Health Law § 2805–m, and plaintiff offers no persuasive arguments to the contrary (see Bush v. Dolan, 149 A.D.2d 799, 799–800, 540 N.Y.S.2d 21 [3d Dept. 1989]; Lilly v. Turecki, 112 A.D.2d 788, 789, 492 N.Y.S.2d 286 [4th Dept. 1985] ).

These statutes “shield from disclosure the proceedings and the records relating to performance of a medical or a quality assurance review function or participation in a medical malpractice prevention program” (Jousma v. Kolli, 149 A.D.3d 1520, 54 N.Y.S.3d 787 [4th Dept. 2017], citing Logue v. Velez, 92 N.Y.2d 13, 16–17, 677 N.Y.S.2d 6, 699 N.E.2d 365 [1998] [internal quotation marks omitted] ).  Their purpose is to safeguard information collected as part of a medical review committee's periodic assessment of physicians' credentials and competence in order to encourage frank and objective discussion during the credentialing process (id. at 17, 677 N.Y.S.2d 6, 699 N.E.2d 365).

Plaintiffs' argument, unsupported by statutory language, case law or other authority, that these statutory protections do not apply to “general” information about a hospital's credentialing procedures is not persuasive (see Stalker v. Abraham, 69 A.D.3d 1172, 897 N.Y.S.2d 250 [3d Dept. 2010] ).

Montefiore has met its burden to show that the statutory privilege applies; in order to do so, a hospital is required, at a minimum, to show 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 A.D.3d 597, 827 N.Y.S.2d 290 [2d Dept. 2007] ).  The motion court's prior order on defendant's motion for a protective order included a finding that the hospital had a review procedure that met the standards of the Public Health Law. Dr. Weiss's affidavit, moreover, establishes that the information sought via the deposition at issue here is information obtained or maintained in accordance with Montefiore's review procedure.  In particular, he attests that information compiled in order to “insure that a physician is capable of performing the procedures for which privileges are to be, or have been, granted,” is information “compiled as a direct result of Montefiore's performance of its quality assurance function” (cf. Orner v. Mt. Sinai Hosp., 305 A.D.2d 307, 761 N.Y.S.2d 603 [1st Dept. 2003]; Kivlehan, 36 A.D.3d at 598, 827 N.Y.S.2d 290).