DORAH BLUTH DEEVA ROSENZWEIG v. ALBANY MEDICAL CENTER

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

DORAH I. BLUTH, Individually and as Executor of the Estate of DEEVA ROSENZWEIG, Deceased, Appellant, v. ALBANY MEDICAL CENTER et al., Respondents.

520634

Decided: October 22, 2015

Before:  Lahtinen, J.P., Egan Jr., Devine and Clark, JJ. Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of counsel), for appellant. Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for respondents.

MEMORANDUM AND ORDER

Calendar Date:  September 16, 2015

Appeal from an order of the Supreme Court (O'Connor, J.), entered October 28, 2014 in Albany County, which, among other things, granted defendants' cross motion for a protective order.

Plaintiff commenced this negligence and wrongful death action alleging, among other things, that defendants failed to administer certain prescribed medications to her mother, Deeva Rosenzweig (hereinafter decedent), while decedent was a patient at defendants' facility, causing decedent to fall and sustain various injuries.  As part of her discovery demand, plaintiff sought production of “any accident or incident reports” relating to this event.  Defendants objected, contending that the subject documents were privileged.  In response, plaintiff moved to compel disclosure of the requested documents, and defendants cross-moved for a protective order.  Supreme Court denied plaintiff's motion and granted defendants' cross motion, prompting this appeal.

Preliminarily, to the extent that defendants contend that the order is not appealable as of right, we disagree (see generally Fernekes v Catskill Regional Med. Ctr., 75 AD3d 959 [2010];  Stalker v. Abraham, 69 AD3d 1172 [2010];  Fray v Fulton Commons Care Ctr., Inc., 51 AD3d 968 [2008];  Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135 [2007] ).  Turning to the merits, defendants are statutorily required to report to the Department of Health certain “adverse events,” including—insofar as is relevant here—“patients' deaths or impairments of bodily functions in circumstances other than those related to the natural course of illness, disease or proper treatment” (Public Health Law § 2805–l [2][a] ).  However, Education Law § 6527(3) contains a “quality assurance privilege ․ [that] shields from disclosure certain records and reports generated by a hospital in performing either a medical malpractice or quality assurance review” (Daly v Brunswick Nursing Home, Inc., 95 AD3d 1262, 1263 [2012] [internal quotation marks omitted] ).  To that end, the statute confers complete confidentiality upon records relating to “quality assurance” and the “prevention of medical, dental and podiatric malpractice” (Public Health Law § 2805–j [1] ) and investigations undertaken “[p]rior to granting or renewing professional privileges” (Public Health Law § 2805–k [1] ), as well as those relating to adverse events as required by Public Health Law § 2805–l (see Education Law § 6527[3];  Public Health Law § 2805–m [1] ).  Notably, such records are expressly exempt from disclosure under CPLR article 31 (see Education Law § 6527[3];  Public Health Law § 2805–m [1];  Logue v. Velez, 92 N.Y.2d 13, 17 [1998];  Fernekes v Catskill Regional Med. Ctr., 75 AD3d at 960;  Leardi v. Lutheran Med. Ctr., 67 AD3d 651, 651 [2009] ).

As the parties seeking to invoke the privilege, defendants bore the burden of establishing that a review procedure was in place and that the requested documents were prepared in accordance with the relevant statutes (see Kneisel v. QPH, Inc., 124 AD3d 729, 730 [2015];  Daly v Brunswick Nursing Home, Inc., 95 AD3d at 1263;  Stalker v. Abraham, 69 AD3d at 1173).  In this regard, although the affidavit tendered by one of defendants' senior vice-presidents indeed did more than assert—in a conclusory fashion—that the requested documents were prepared in conjunction with a quality assurance review program and fell within the scope of the asserted privilege (compare Kneisel v. QPH, Inc., 124 AD3d at 730;  Slayton v. Kolli, 111 AD3d 1314, 1314–1315 [2013];  Kivlehan v. Waltner, 36 AD3d 597, 598–599 [2007] ), it nonetheless failed to set forth sufficient details to enable either Supreme Court or this Court to conclude that such documents indeed are protected.  Accordingly, as we cannot ascertain from the record whether the requested documents are in fact exempt from disclosure, we remit this matter to Supreme Court for an in camera inspection of the documents and a determination as to whether such materials, or any part thereof, fall within the asserted privilege (see Daly v Brunswick Nursing Home, Inc., 95 AD3d at 1263;  Fernekes v Catskill Regional Med. Ctr., 75 AD3d at 961–962;  Leardi v. Lutheran Med. Ctr., 67 AD3d at 651–652;  Fray v Fulton Commons Care Ctr., Inc., 51 AD3d at 969).

Lahtinen, J.P., Devine and Clark, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants' cross motion for a protective order and vacated plaintiff's demand for any accident or incident reports;  matter remitted to the Supreme Court for an in camera review of the documents at issue in accordance with this Court's decision;  and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

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