Swanson v University of Rochester

[*1] Swanson v University of Rochester 2005 NY Slip Op 52245(U) [10 Misc 3d 1076(A)] Decided on October 12, 2005 Supreme Court, Monroe County Stander, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 12, 2005
Supreme Court, Monroe County

Peter J. Swanson, Plaintiff,

against

University of Rochester (STRONG MEMORIAL HOSPITAL ), Defendant.



2002/13835



APPEARANCES:

Attorney for Plaintiff:Angelo G. Faraci, Esq.

Faraci & Lange LLP

2 State Street, Suite 400

Rochester, New York 14614

Attorney for Defendant:Eric J. Ward, Esq.

Ward, Norris, Heller & Reidy, LLP

300 State Street

Rochester, New York 14614

Thomas A. Stander, J.

The Plaintiff, Peter J. Swanson, submits a motion seeking an order pursuant to CPLR §3120 and 3101[a][1] directing the Defendant, University of Rochester (Strong Memorial Hospital), to produce (a) unredacted copies of 4 reports made to Ms. Linda McLean, Patient Relations Representative, by the designated person in each department contacted by her, being urology, anesthesiology, surgery, and orthopaedics; and (b) the identity of the source, whether a witness or record, or both, of the [*2]information set forth in Ms. McLean's letter of 7/18/01 to the plaintiff, marked as Exhibit 22, which stated: [1] that Mr. Swanson's arms were kept at less than 90 degrees during surgery; [2] that the wrists were maintained straight throughout surgery and were padded front and back; [3] that his injury was likely caused by a brachial plexus stretch type palsy.

The Defendant does not object and agrees to provide within 14 days the job description of Ms. McLean requested in paragraph [c] of the Plaintiff's Notice of Motion. Defendant also does not object to the requests made in paragraph [d] and [e] of the Plaintiff's Notice of Motion seeking inspection of armboards available on November 9, 2000 and to produce a witness having knowledge of the types and numbers of armboards available for use on November 9, 2000, together with any pertinent records documenting such information. These discovery requests in the notice of motion listed as (c), (d) and (e) were agreed to by opposing counsel. The motion was withdrawn upon the parties agreement to provide these items.

The motion of the Plaintiff for an order directing Defendant to produce the items requested in (a) and (b) of the notice of motion is DENIED.

FACTS

This is an action for damages for personal injuries allegedly sustained by Peter Swanson during a surgical procedure on November 9, 2000 at Strong Memorial Hospital. Plaintiff claims that these injuries were a consequence of Defendant's departure from accepted standards of care in the positioning and repositioning of the patient during surgery. The surgery lasted approximately eight hours. Plaintiff alleges that he sustained injuries consisting of severe and permanent injuries to the brachial plexus, the median and ulnar nerves in the left arm; resulting in loss of use of the left hand and arm and intense pain. Plaintiff also asserts that he sustained injury to the low back and an injury to the nerves in the right leg, causing pain and weakness.

The Plaintiff seeks disclosure from the Defendant of copies of four reports made to Ms. Linda McLean and the identity of the source of information set forth in a letter of July 18, 2001 from Ms. McLean to the Plaintiff. The parties disagree about whether these items are discoverable.

DISCOVERY REQUESTS

The requests of the Plaintiff for disclosure are contested by the Defendant. Plaintiff requests that Defendant produce unredacted copies of four reports made to Linda McLean, Patient Relations Representative, by the designated person in each department contacted by her, being urology, anesthesiology, surgery, and orthopaedics and Plaintiff seeks the identity of the source, whether a witness or record, or both, of the information set forth in Ms. McLean's letter of July 18, 2001 to the Plaintiff which states specific conclusions regarding the surgery. [*3]

A.LAW

The Public Health Law §2805-j requires hospitals to maintain a malpractice prevention program. Such a program must, among other things, establish a quality assurance committee to review services rendered and establish a procedure for the prompt resolution of grievances by patients that may result in claims of malpractice (Public Health Law §2805-j[1][a] and [1][d]). This law also authorizes regulations to effectuate the purposes of this malpractice prevention program section (Public Health Law §2805-j[3]). The regulations adopted by the Department of Health require a hospital to afford each patient the right to express complaints about care and services and to have the hospital investigate such complaints (10 NYCRR § 405.7[b]). Further the hospital is required to provide a written response if requested by the patient indicating the finding of the investigation (10 NYCRR § 405.7[b][23]).

Under the Public Health Law all reports, documentation or records required under §2805-j of the law are protected from CPLR Article 31disclosure. The information required to be collected and maintained pursuant to [§2805-j] . . . shall be kept confidential and shall not be released except to the department . . .Notwithstanding any other provisions of law, none of the records, documentation or committee actions or records required pursuant to [§2805-j] . . . shall be subject to disclosure under . . . article thirty-one of the civil practice law and rules, except as hereinafter provided or as provided by any other provision of law. . . .

(Public Health Law §2805-m[1] and [2]). The disclosure of these records is also protected under the Education Law. Neither the proceedings nor the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program . . . shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law. . . .

(Education Law §6527[3]; see Logue v Velez, 92 NY2d 13,16-17 [1998]).[FN1]

[*4]

Files and documents obtained and maintained by a hospital in their medical malpractice prevention programs are not subject to disclosure (Scinta v VanCoevering, 284 AD2d 1000, 1001-02 [4th Dept. 2001]. A hospital is entitled to a protective order with respect to records and files relating to its "medical and quality assurance review function, malpractice prevention programs, and the evaluation and improvement of the quality of care rendered in the hospital" (Little v Hicks, 236 AD2d 794 [4th Dept. 1997]).

Where the Defendant hospital fails to establish that the items being requested by Plaintiff "were 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", then such items are not protected from disclosure (Little v Highland Hospital of Rochester, 280 AD2d 908,909 [4th Dept. 2001] [citing Maisch v Millard Fillmore Hosps., 262 AD2d 1017]). Defendants have the burden of "establishing that the document is entitled to statutory confidentiality and protection from disclosure" (Maisch v Millard Fillmore Hospitals, 262 AD2d 1017 [4th Dept. 1999]; see Zion v The New York Hospital; 184 AD2d 441 [1st Dept. 1992]).

The Courts have indicated that a hospital may waive its privilege only by sharing the reports with a disinterested third party. (Nga Le v Stea, 286 AD2d 939 [4th Dept. 2001]; Scinta v Van Coevering, 284 AD2d 1000 [4th Dept. 2001]). A waiver of this privilege requires the "intentional relinquishment of its known right of confidentiality" (Khan v New York State Department of Health, __ AD2d __, 794 NYS2d 145 {17 AD3d 938} [3d Dept. 2005]); Little v Hicks, 236 AD2d 794 [4th Dept. 1997]). Sharing the records, reports and documents with a person interested in the hospital review does not waive the privilege (see Smith v Delago, 2 AD3d 1259 [3d Dept. 2003]; Khan at 794 NYS2d 145 {17 AD3d 938} ; Little v Hicks at 795; Nga Le v Stea 286 AD2d 939 [4th Dept. 2001]) )

B.RECORDS, REPORTS AND SOURCES

The Plaintiff seeks copies of four reports made to Linda McLean, Patient Relations Representative of the Defendant from four different departments, and the identity of the source of information contained in a letter from Ms. McLean to the Plaintiff.

The testimony of Ms. McLean indicates that, after receiving a patient complaint from the Plaintiff concerning his care at Strong Memorial Hospital, she requested and received Quality Assurance reviews from the departments of urology, anesthesiology, surgery and orthopaedics regarding the Plaintiff's care. Ms. McLean testified that she initiated a review of the services and care provided to the Plaintiff under the quality assurance program and the requirement to respond to complaints of patients. According to Ms. McLean these review reports were used to prepare the July 18, 2001 letter to the Plaintiff. [*5]

All reports, documentation or records required under §2805-j for quality assurance review or medical malpractice prevention program or for the prompt resolution of grievances by patients are protected from disclosure under CPLR Article 31 (Public Health Law §2805-m; Education Law § 6527[3]). The reports obtained by Ms. McLean from the four hospital departments for her investigation of the complaint of Plaintiff were for a quality assurance review, medical malpractice prevention program, or prompt resolution of grievances by patients related to treatment that may result in claims of medical malpractice. Under the Public Health Law, Education Law and case law, these reports, records and documentation are exempt from disclosure.

The Plaintiff argues that there was a waiver of the confidentiality cloak afforded to these records and reports by the Public Health Law because of the letter sent to the Plaintiff on July 18, 2001 setting forth certain conclusions regarding Plaintiff's care. To waive the privilege afforded by the Public Health Law and the Education Law, the hospital must intentionally relinquish its known right of confidentiality. Here, a letter was sent to the patient who had complained about his care at the hospital. The letter was sent to explain the findings from the hospital's investigation concerning his treatment and care. Since the hospital is (if requested) required to notify the patient by a written response of the findings from its investigation (10 NYCRR §405.7[b][23]), the letter sent to the Plaintiff by the hospital is clearly part of the program required by statute for the identification and prevention of medical malpractice (Public Health Law §2805-j). This letter is protected from disclosure under CPLR Article 31.

The Courts have also indicated that a hospital may waive its privilege only by sharing the reports with a disinterested third party. (Nga Le v Stea, 286 AD2d 939 [4th Dept. 2001]; Little v Hicks, 236 AD2d 794 [4th Dept. 1997]). The Plaintiff is not a disinterested third party. The Plaintiff complained to the hospital about his treatment and care. The hospital cannot be deemed to waive its privilege under Public Health Law by responding to a patients grievance in accordance with the law and regulations. To hold otherwise would "result in the evil the statute seeks to avoid" (see Little v Hicks at 794). The hospital did not waive its privilege.

The motion of the Plaintiff for disclosure from the Defendant, University of Rochester, to produce the unredacted copies of 4 reports made to Ms. Linda McLean by the urology, anesthesiology, surgery, and orthopaedics departments and to disclose the identity of the source of the information set forth in Ms. McLean's letter of 7/18/01 to the plaintiff is DENIED. All other relief requested in this motion have been resolved by the parties.

O R D E R

Based upon all the papers submitted in support and in opposition to this motion, upon the above Decision, and after due deliberation, it is hereby ORDERED that the motion of the Plaintiff, Peter J. Swanson, for an order pursuant to CPLR §3120 and 3101[a][1] directing the Defendant, University of Rochester (Strong Memorial Hospital), to produce (a) unredacted copies of 4 reports made to Ms. Linda McLean, Patient Relations Representative, by the designated person [*6]in each department contacted by her, being urology, anesthesiology, surgery, and orthopaedics; and (b) the identity of the source, whether a witness or record, or both, of the information set forth in Ms. McLean's letter of 7/18/01 to the plaintiff, marked as Exhibit 22, which stated: [1] that Mr. Swanson's arms were kept at less than 90 degrees during surgery; [2] that the wrists were maintained straight throughout surgery and were padded front and back; [3] that his injury was likely caused by a brachial plexus stretch type palsy is DENIED.

Dated:October 12, 2005

Rochester, New York

________________________________________

Thomas A. Stander

Supreme Court Justice C:\htformat\f5224560.txt Footnotes

Footnote 1:This provision of the Education Law was relied upon as a basis for hospital records relating to quality assurance review or malpractice prevention program being exempt from disclosure, prior to the adoption in 1986 of the Public Health Law statutory provisions. (see Lilly v Turecki, 112 AD2d 788 [4th Dept. 1985]; Little v Hicks, 236 AD2d 794 [4th Dept. 1997]).