Lowenthal v New York Downtown Hosp.
2011 NY Slip Op 32173(U)
July 29, 2011
Sup Ct, NY County
Docket Number: 106344/09
Judge: Alice Schlesinger
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ANNED ON 81112011
SUPREME COURT OF THE STATE OF NEW YORK
A N E SR
NEW YORK COUNTY
t k n
Index Number : 106344/2009
MOTION SEQ. NO.
NEW YORK DOWNTOWN HOSPITAL
MOTION CAI.. NO.
SEQUENCE NUMBER : 001
ORDER OF PROTECTION
this motion tolfor
Notice of Motion/ Order to Show Cause - Affidavits - Exhibits
Answering Affidavits - Exhlblts
Upon the foregoing papers, it is ordered that this motion
AUG 0 12011
COUNTY CLERKS OFFICE
SUI. 2 9 2011
fi FINAL DISPOSITION
W/,PILICE S H $
NON-FINAL D @ ION
0 DO NOT POST
0 SETTLE ORDER/ JUDG.
c SUBMIT ORDER/ JUDG.
Check if app optiate:
SUPREME COUNTY OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IA PART 16
ZVI LOWENTHAL, as Executor of the Estate of
ROSE ZVI LOWENTHAL and ZVI LOWENTHAL,
as representative of the Heirs and Distributees of
ROSE LOWENTHAL, deceased; and ZVI LOWENTHAL,
as Executor of the Estate of MARTIN LOWENTHAL,
Index No. 106344109
Motion Seq. No. 001
-againstNEW YORK DOWNTOWN HOSPITAL and DR. NAJERI,
action for a protective order pursuant to CPLR $5 3101 and 3103 prohibiting plaintiffs
discovery of e-mail correspondence sent on December 9,2008 by the decedent’s
surgeon Kenneth McCulloch, M.D. to Steven Friedman, M.D., Chief of the Hospital’s
Department of Surgery. The Hospital contends that the e-mail is privileged as it was
prepared and used in connection with the Hospital’s Quality Assurance proceedings.
Defendant Dr. Najiri supports the request, though he has never seen the e-mail. Plaintiff
vigorously opposes the motion, asserting that the e-mail is not privileged, even if used
by the Hospital in its Quality Assurance proceedings, because it was not written by or at
the behest of the Quality Assurance Committee.
Plaintiff Rose Lowenthal was admitted to the defendant Hospital on December 2,
2008 for a right hip arthroplasty. The surgery was performedthe following day, as planned,
by Dr. Kenneth McCulloch, a private attending orthopaedic surgeon with privileges at the
Hospital. The surgery apparently was uneventful and successful. However, due to
developments after the surgery, Rose Lowenthal died at the Hospital two days after the
surgery, on December 5,2008 at the age of 89. It is the nonorthopaedic aftercare provided
by the Hospital staff that gave rise to this malpractice action; Dr. McCulloch is not a
According to the plaintiffs attorney Scott Rubin, Dr. McCulloch contacted him during
the course of this litigation when he received an Aronsauthorization from defense counsel.
Dr. McCulloch advised Mr. Rubin at that time that he had been ”so upset by the
unnecessary death of Mrs. Lowenthal that he sent an unsolicited letter to the Hospital in
order to bring the events to their attention.” He added that “he wrote the letter on his own
and not at the request of the Hospital.” (Aff. in Opp. at 75).Mr.Rubin then demanded a
copy of the letter from the Hospital’s counsel during discovery, and when counsel declined,
he was directed to make this motion for a protective order.
The framework for the defendant’s motion is New York Public Health Law 5 2805-j,
which mandates that every hospital maintaina medicalmalpractice prevention program that
includes a Quality Assurance Committee. Defendant also relies on the related §6527(3)of
the Education Law, which states in relevant part that:
Neither the proceedings nor the records relating
to performance of a medical or quality assurance
review function or participation in a medical and
’dental malpractice prevention program nor any
report required by the department of health
pursuant to section twenty-eight hundred five-I of
the public health law , . . 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
Defendant urges this Court to broadly construe the governing statutes to exempt
Dr. McCulloch’s e-mail from disclosure because it was reviewed by the Hospital’s Quality
Assurance Committee as part of its review of the Lowenthal case. In support of its position
the Hospital provides two affidavits; the first is from Dr. Steven Friedman, the individual to
whom the e-mail was addressed, and the second is from Dr. Pauline Hecht, another
physician at the Hospital who received a copy of the e-mail from Dr. Friedman.
Dr. Friedman indicates that, as Chief of the Department of Surgery at the Hospital,
he is a member of the Quality Assurance Committee for his department. He has served in
those capacities since 2004 and continuing to date, including December 2008 when Mrs.
Lowenthal passed away at the Hospital two days after her surgery. Dr. Friedman describes
the circumstances that led to the e-mail as follows (at gv9-IO):
Shortly after the death of Ms. Lowenthal, Dr. McCulloch
approached me in the hospital to discuss the care and
treatment received by Ms. Lowenthal at New York Downtown
Hospital during her admission from December 2-5, 2008. He
told me that we [sic] wanted to bring her care and treatment to
my attention so that the hospital could review the event, make
any appropriate changes, and evaluate risk and responsibility
in the patient’s care.
As is my custom and practice, I asked Dr. McCulloch to put any
recommendations into an e-mail so that it could [be]presented
to the Department of Surgery’s Quality Assurance Committee
for review. The Lowenthal case would be reviewed by the
Quality Assurance Committee given the patient‘s mortality.
In his affidavit, Dr. Friedman further confirms his receipt of the e-mail from Dr.
McCulloch on December 9,2008 and states ( at 7.1I) he reviewed it “in anticipation of
the Quality Assurance Committee’s review” scheduled for February 26,2009. He explains
(at V I 2) that he then gave a copy of the e-mail to Dr. Pauline Hecht, Associate Chair of the
Hospital’s Department of Surgery and Chair at that time of the Department of Surgery’s
Quality Assurance Committee. Dr. Friedman did not give anyone else the e-mail. According
to Dr. Friedman, he attended the meeting of the Quality Assurance Committee on February
26, 2009 when the Committee reviewed the e-mail in connection with its review of the
circumstancessurrounding Mrs. Lowenthal’s death and then placed it in the file maintained
in the Quality Control Department for the Hospital (713).
As particularly relevant here, Dr. Friedman boldly asserts (at 113) that “Dr.
McCulloch’s email was created exclusively for review by the Quality Assurance Committee
and was restricted solely to the members of that committee.” He then cites the controlling
statute (at 715), which he claims protects the document from disclosure, and argues (at
114) that “disclosure would have a devastating and severely chilling effect on the integrity
of the review process and ultimately, in the quality of care we provide our patients.”
Much of the wording in Dr. Hecht’s affidavit is identical to that of Dr. Friedman,
suggestingthat counsel drafted both documents. For much of hertenure, includingthe time
relevant here, Dr. Hecht was Associate Chair for the Department of Surgery and Chair of
the Quality Assurance Committee for her department. In describing the work of the
Committee, Dr. Hecht states (at 76) that: “Patient mortality is one of the criteria that may
commence review by the Quality Assurance Committee.” (Emphasis added).
Specifically with respect to the Lowenthal case, Dr. Hecht explained the
circumstances surrounding her receipt of Dr. McCulloch’s e-mail as follows (at 79):
As Chair of the Department of Surgery’s Quality and
Assurance Committee [I] prepared the case for presentation
before the review committee. Part of my preparation included
interviewingDr. McCulloch regardingMs. Lowenthal’scare and
treatment. During my interview Dr. McCulloch advised m e that
he had sent an email to the Chair of the hospital’s Surgery
Department, Steven Friedman, M.D., so that the hospital could
reviewthe Lowenthal case and make appropriate changes and
evaluate the responsibility in the patient’s care.
Dr. Hecht confirms in her affidavit (at I l l ) that the Committee reviewed the
Lowenthal case on February 26, 2009 and that Dr. McCulloch’s e-mail was “one of the
documents reviewed by the Committee on that date.” The Committee did not distribute the
e-mail beyond the Committee members and then filed it in The Quality Control Department
with restricted access. Dr. Hecht concludes her affidavit (at q12), as Dr. Friedman did his,
emphasizing the importance of keeping the e-mail privileged and the “chilling effect” that
disclosure would have “on the integrity of the review process and ultimately, in the quality
of care we provide our patients.”
While both Dr. Friedman directly claims, and Dr. Hecht strongly suggests, that Dr.
McCulloch drafted his e-mail “exclusively for review by the Quality Assurance Committee,”
Dr. McCulloch’s position is quite different. At oral argument, plaintiffs counsel submitted
a brief, straighfforward affirmation from Dr. McCulloch that explains his reasons for writing
the e-mail. Plaintiffs counsel explained to the Court when he presented the affirmation that
he had reached out to Dr. McCulloch earlier, but he had been unable to obtain a written
statement before the oral argument date. Considering the importance of the affirmation to
the dispute at hand and the circumstances overall, the Court accepted the affirmation over
the objection of defense counsel.
In his affirmation, Dr. McCulloch confirms that he was the orthopaedic surgeon who
performed a hip arthroplasty on Rose Lowenthal in December 2008. He indicates (at 73)
that Mrs. Lowenthal “had an uneventful surgical intraoperative course and early
postoperative period but died several days after the procedure” at the Hospital.
Significantly,Dr. McCulloch then describesthe circumstances surrounding his writing of the
e-mail, emphasizing (at q4) that he wrote it on his own to criticize the care provided by the
Hospital staff, and not for the Quality Assurance Committee:
As a result of Mrs. Lowenthal’s death, I wrote a letter of my
own volition, and not at the request of another individual or
department, that discussed the circumstancessurrounding her
death. The letter was critical of her non-orthopaedic medical
care and the New York Hospital Housestaff rotating at New
York Downtown Hospital who were involved in her care.
In keeping with that description of the letter’s purpose, Dr. McCulloch then indicates
that he sent the letter to the Surgical Residency Director, the Chief of Surgery, and the
Chief of Orthopaedics. With respect to the use of the letter for quality assurance purposes,
Dr. McCulloch implicitly questions the seriousness of that claimed use, stating (at 76):“I
was not invited to participate in a Quality Assurance Meeting or Morbidity and Mortality
Meeting referable to Mrs. Lowenthal.”
Defense counsel urges this Court to broadly construe the controlling statutes to
confer a privilege not only on documents created by or at the behest of the Quality
Assurance Committee, but also on those documents - like the e-mail at issue here -that
simply were reviewed by the Committee. However, the case law does not support such a
broad reading. Rather, the statutory scheme has a limited purpose to protect the actual
workings of quality assurance review committees. As the Court of Appeals explained in
Logue v Velez, 92 NY2d 13, 17 (1998):
The purpose of the discovery exclusion is to
“enhance the objectivity of the review process”
and to assure that medical review committees
“may frankly and objectively analyze the quality
of health services rendered” by hospitals (see,
Mem of Assembly Rules Comm, Bill Jacket, L
1971, ch 990, at 6). By guaranteeing
confidentiality to quality review and malpractice
prevention procedures, this provision is designed
to encourage thorough and candid peer review of
physicians, and thereby improve the quality of
More recently, in 2003, the Court of Appeals confirmed its narrow reading of the privilege
articulated in Logue in In re Subpoena Duces Tecum to Jane Doe, Esq., 99 NY2d 434,439.
Even assuming that Dr. Friedman requested that Dr. McCulloch express his
concerns in writing with the intention that Dr. Friedman would then give the e-mail to Dr.
Hecht who compiles material for the Committee, that fact does not mean that the e-mail is
privileged and exempt from disclosure. “It is the burden of the entity seeking to invoke the
privilege to establish that the documents sought were prepared in accordance with the
relevant statutes.” Made v. Brooklyn Hosp. Center, 9 A.D. 3d 41,46 (2ndDep’t 2004), citing
Omer v. Mt. Sinai Hosp., 305 A.D. 2d 307 (IntDep’t 2003). The burden is not satisfied by
a showing that the report was received by the hospital’s quality assurance committee.
Clement v. Katen’ Residence, 60 AD3d 527 (1at Dep’t 2009). “A facility may not create a
privilege where none would otherwise exist merely by assigning the duty for compliance or
compilation to a quality assurance committee.” In re Subpoena, 99 NY2d at 440.
The burden of proving privilege can only be satisfied by a particularized showing in
evidentiary form, such as an affidavit from an individual with personal knowledge, that the
report was prepared at the behest of the quality assurance committee for their purposes
and actually utilized by them for their purposes. Thus, in Clement, the First Department
found that the requested incident reports were not privileged since, while utilized by the
quality assurance committee, they were of the type routinely prepared and maintained by
the nursing home to comply with regulatory reporting requirementsand were not prepared
by or at the behest of the committee. See also Simmons v. Northern Manhattan Nursing
Home, lnc., 52 AD3d 351, 352 (Ist Dep’t 2008)(defendant failed to meet burden of
demonstrating that all documentation “of and from’’ the Quality Assurance Committee
related to the quality assurance function so as to qualify for the privilege);Raptis-Smith v.
St- Joseph’s Medical Cenfer, 302 AD2d 246 (Iut 2003)(physician’s reading of X-rays
not privileged, despite doctor’s contract with hospital to interpret X-rays for purposes of
quality assurance, where evidence showed the particular review had been completed for
diagnostic purposes); Benacquista v. Mount Sinai Hospital, 20 Misc 3d I 11(A)(Sup. Ct.,
NY Co., Sklar, J. 2008)(incident report not privileged, despite reference to quality
assurance, where hospital failed to prove the report was prepared at the committee’s
behest for its specific use).
The Hospital in the case at bar has wholly failed to satisfy its burden of proving that
Dr. McCulloch’se-mail is exempt from disclosure pursuant to the limited privilege afforded
by law. Looking first at the governing statute quoted above, Education Law §6527(3),
Court finds that the e-mail does not fall within any of the categories of documents described
as privileged. Those categories include the “proceedings” and “records” relating to an
institution’squality assurance review function or medical malpractice prevention program.
Clearly, the e-mail is not a transcript of the proceedings; nor can it reasonably be viewed
as a record relating to the quality assurance function. While the Legislature intended to
protect the confidentiality of the proceedings so as to foster open discussion, it did not
intend to create a broad privilege that shields persons or institutions such as the Hospital
here whose conduct is subject to review. VanBergen w Long Beach Medical Center, 277
AD2d 374, 375 (2ndDep’t ZOOO),citing Logue, supra.’
The statute also exempts any report required by the Department of Health
pursuant to Public Health Law 5 2805-1. The referenced reports are those that
hospitals must file to report certain types of incidents, which the e-mail is not.
Nor do the affirmations proffered by the defense prove that the e-mail falls within the
limited statutory privilege. Dr. Friedman merely indicates that Dr. McCulloch approached
him about the Lowenthal case, that Dr. Friedman requested that Dr. McCulloch send him
his comments in writing, and that Dr. Friedman gave Dr. Hecht the e-mail when he received
it. Even assuming Dr. Friedman requested the e-mail with the intention of giving it to the
QualityAssurance Committee, Dr. McCulloch’s statementwas undeniably motivated in the
first instance by his own concerns. Dr. Hecht merely indicates that she received the e-mail
from Dr. Friedman, as she was charged with compiling documents related to the Lowenthal
case, and that she gave the e-mail to the Committee for review. Thus, neither of these
doctors affirms that Dr. McCulloch purposefully created the e-mail for the exclusive use of
the Quality Assurance Committee.
What is more, as discussed above, Dr. McCulloch directly refuted any such
suggestion that he created the e-mail for the Quality Assurance Committee. He explained
that he was upset by what he perceived as the unnecessary death of his patient Rose
Lowenthal, that he spoke with Dr. Friedman, the Chief of Surgery, to criticize the
nonorthopaedic aftercare provided by Hospital staff, and that he then wrote the e-mail
confirming those criticisms. Or. McCulloch’s affirmation is far more credible than the
affirmations offered by the defense, as it is a straightforward recitation of the facts with no
attempt to argue the law, It is also wholly consistent with the report by plaintiffs counsel
of the telephone call he received from Dr. McCulloch earlier in the litigation.
In addition, Dr. McCulloch’s recitation of the facts in his affirmation is wholly
consistent with this Court’s understanding of the e-mail’s purpose, after having reviewed
it in camera. As suggested by the statement in his affirmation that the e-mail was “critical”
of the post-operative care and treatment provided to Mrs. Lowenthal, Dr. McCulloch in his
e-mail was essentially expressing his outrage at certain actions and inaction by the Hospital
staff. While it is true, as stated in the affirmations from Dr. Friedman and Dr. Hecht, that Dr.
McCulloch did advise Dr. Friedman in the e-mail that the Hospital should “make appropriate
changes and evaluate risk and responsibility [in connection with Mrs. Lowenthal’s] care,”
it is clear that his primary reason for writing the e-mail was to bring to the Hospital’s
attention the shocking events leading to Mrs. Lowenthal’s death about which he had not
been informed in a timely fashion.
Disclosure of the e-mail is supported by the public policy behind the law, which
protectsthe confidentiality of proceedings and records of the Quality Assurance Committee
so as to foster discussion and improve the quality of care; the statute was not designed to
shield persons or institutions charged with wrongdoing. For that reason, the statute
expressly allows for the disclosure statements made to the Quality Assurance Committee
by a party to litigation when related to the subject matter of the litigation. As Dr. McCulloch
drafted the e-mail at issue here for a purpose wholly independent of the Quality Assurance
Committee, disclosing it will not breach the confidentiality of the Committee’s proceedings,
even if the e-mail was later forwarded to the Committee and reviewed by its members.
The Hospital has failed to cite a single appellate case from the First Department to
support its position. Nor do any of the other cited cases justify the protective order
requested here. In D’Angelis vBufalo GeneralHospital, 2 AD3d 1477 (4thDep’t 2003),the
court exempted from disclosure a written evaluation prepared by a nonparty physician that
-unlike here -the doctor had drafted expressly (and apparently solely) for review by the
Quality Assurance Committee, Similarly distinguishable is Burnside v Foot Clinics of New
York, et a/., 115 Misc. 2d 85 (Sup. Ct., NY Co. 1982), which exempted from disclosure the
treating physician’s report to the Quality Assurance Committee prepared expressly for the
Committee’s review. To the extent the Hospital relies on Benacquista v Mount Sinai
Hospital, 20 Misc. 3d 111I(Sup. Ct., NY Co. 2008) to argue that any document used by
the Quality Assurance Committee is exempt from disclosure, that reliance i misplaced.
Justice Sklar there ordered the hospital to disclose an incident report prepared by a nurse,
even though the preprinted form used indicated that it was prepared for the hospital’s
Quality Assurance Program and was confidential, finding that the report was “multimotivated” and not prepared and used solely for quality assurance purposes.2
In sum, the defendant Hospital has not satisfied its burden of proving that the
December 9, 2008 e-mail written by Dr. McCulloch when he learned of Mrs. Lowenthal’s
death is exempt from disclosure pursuant to the limited privilege afforded by the Public
Health and Education Laws.
Accordingly, it is hereby
ORDERED that the motion by the defendant New York Downtown Hospital for a
protective order is denied, and the Hospital is directed to provide a copy of Dr. McCulloch’s
e-mail to all counsel within seven days of the date of this decision.
This constitutes the decision and order of this Court.
AUG 0 1 2011
Dated: July 29, 201 I
JUI 2 9 2011
The co-defendant cites Katherine F. v Perez, 94 NY2d 200( 1999), which is also
readily distinguishable. The court there exempted from disclosure incident
reports required by the Public Health Law and the Mental Hygiene Law prepared
in connection with an investigation of the alleged sexual assault of a minor
patient by the institution’s employee.