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Supreme Court, Appellate Division, Fourth Department, New York.

Amy D'ANGELIS and Joseph D'Angelis, Individually and as Parents and Natural Guardians of David D'Angelis, Plaintiffs-Respondents, v. BUFFALO GENERAL HOSPITAL, Dr. Dennis Weppner, Dr. Abraham Sklar, and University Gynecologists & Obstetricians, Inc., Defendants-Appellants.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., WISNER, KEHOE, LAWTON, AND HAYES, JJ. Gibson, McAskill & Crosby, LLP, Buffalo (Kathleen M. Sweet of Counsel), for Defendant-Appellant Buffalo General Hospital. Brown & Tarantino, LLP, Buffalo (Margaret K. Hey of Counsel), for Defendants-Appellants Dr. Dennis Weppner, Dr. Abraham Sklar, and University Gynecologists & Obstetricians, Inc. Gair, Gair, Conason, Steigman & Mackauf, New York (Rhonda E. Kay of Counsel), for Plaintiffs-Respondents.

 Defendants appeal from an order that, inter alia, denied those parts of their respective motion and cross motion for a protective order in this medical malpractice action and directed that defendant Buffalo General Hospital (Hospital) provide plaintiffs with certain written material.   The proceedings and records of a medical review committee are not subject to discovery when such committee is performing “any medical or quality assurance review function” (Education Law § 6527[3];  see Public Health Law § 2805-m;  Logue v. Velez, 92 N.Y.2d 13, 16-17, 677 N.Y.S.2d 6, 699 N.E.2d 365;  Bryant v. Bui, 265 A.D.2d 848, 849, 695 N.Y.S.2d 790).   However, statements of a defendant doctor made before a peer review board or for quality assurance evaluation are not privileged when they relate to the subject matter of the litigation (see Bryant, 265 A.D.2d at 849, 695 N.Y.S.2d 790).   Thus, we conclude that Supreme Court erred in ordering the disclosure of the written evaluation of Scott Zuccala, M.D., a nonparty physician, submitted to the Hospital's quality assurance committee (see Di Chiara v. Kaleida Health, 306 A.D.2d 901, 902, 761 N.Y.S.2d 907), and we modify the order accordingly.   We further conclude that the court properly permitted the disclosure of defendant Dr. Dennis Weppner's statement during the quality assurance committee meeting concerning plaintiff mother's labor and delivery (see Koithan v. Zornek, 226 A.D.2d 1080, 642 N.Y.S.2d 115).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting those parts of the motion and cross motion for a protective order with respect to the written evaluation of Scott Zuccala, M.D. submitted to the quality assurance committee of defendant Buffalo General Hospital and vacating the second ordering paragraph and as modified the order is affirmed without costs.