Payton v State of New York

[*1] Payton v State of New York 2008 NY Slip Op 52485(U) [21 Misc 3d 1143(A)] Decided on November 14, 2008 Ct Cl McCarthy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2008
Ct Cl

Noel Payton, Claimant,

against

The State of New York, Defendant.



111384



APPEARANCES:For Claimant:

BAUMAN & KUNKIS, P.C.

By: Roger M. Kunkis, Esq.

and Randolph D. Janis, Esq.

For Defendant:

ANDREW M. CUOMO

Attorney General of the State of New York

By: Daniel Chu, Esq., AAG

Christopher J. McCarthy, J.

For the reasons set forth below, Claimant's motion for in camera review of the Patient Safety Net (PSN) report generated regarding the incident underlying this Claim is granted.

The Claim alleges that, on September 24, 2004 between 4:00 a.m. and 6:30 a.m., Claimant, who was a patient at Stony Brook University Hospital and Medical Center (hereinafter Stony Brook Hospital), fell out of bed causing her to sustain serious and permanent personal injuries as a result of Defendant's negligence and medical malpractice.

By Decision and Order dated April 4, 2008, this Court granted Claimant's motion for an order directing Defendant to produce: (1) any accident/incident report maintained by Defendant that pertained to Claimant's September 24, 2004 incident; or, in the alternative (2) an affidavit from Risk Management detailing the search and that no report exists or existed (Payton v State of New York, Ct Cl, Claim No. 111384, Motion No. M-74489, April 4, 2008, McCarthy, J. [UID No. 2008-040-019]). In response to the Decision and Order, Defendant submitted the affidavit of Kathleen Ferrara, R.N., Risk Manager in the Department of Risk Management at Stony Brook Hospital (Ex. C attached to Affirmation in Opposition). Nurse Ferrara stated in pertinent part:

3)Upon a search and review of the files maintained in the Department of Risk Management, there is no "incident/accident report" in the custody or control of the department prepared in the normal course of business concerning the alleged fall event that occurred on September 24, 2004. [*2]

4)In 2004, it was hospital policy to document in the medical record, specifically in the "Nursing-Post Fall Evaluation" Progress Note, the findings of an evaluation of the patient's condition after an alleged fall . . .

6)Additionally, in or about 2004, the hospital's quality assurance program initiated the Patient Safety Net (PSN), a privileged-confidential intake for retrospective review/quality assurance process to carry out quality assurance, quality improvement and patient safety activities. As part of this process, a Patient Safety Net (PSN) report was generated in this case under Public Health Law § 2805 j,k,l,m and Education Law §6527.

7)The Patient Safety Net, a quality assurance report, falls outside the ambit of discovery since it relates to the performance of a quality assurance function and/or participation in a medical and dental malpractice prevention program by the hospital which is protected by state privilege and confidentiality laws pursuant to Public Health Law § 2805-m and Education Law § 6527(3).

Claimant now seeks to have the Court review the PSN in camera to determine if the report is privileged. Defendant opposes the motion on the basis that the PSN "is an integral part of the retrospective review and quality assurance process" (Affirmation in Opposition of Daniel Chu, Assistant Attorney General, ¶ 6) and is a confidential and privileged report.

The State has also submitted the affirmation of William H. Greene, M.D., the Senior Associate Medical Director for Quality Management and Chair of the Medical Staff Quality Assurance Committee since 1995 and the Chief Quality Officer since 2007 at Stony Brook Hospital (Ex. D attached to Affirmation in Opposition). Dr. Greene avers in pertinent part:

2)I submit this affirmation in support of defendant's application to maintain the privilege and confidentiality protections afforded quality assurance information. Specifically, it is respectfully submitted that the hospital's Patient Safety Net report ( hereinafter "PSN") is a confidential and privileged, quality assurance document that is exempt from discovery under law.

3)The PSN is a quality assurance tool necessary to carry out the Quality Assurance, Patient Safety & Quality Improvement Initiatives of [Stony Brook Hospital]. It is a quality assurance report which falls outside the scope of discovery since it relates to the performance of a quality assurance function and/or participation in a medical and dental malpractice prevention program by the hospital which is protected by state privilege and confidentiality laws pursuant to Public Health Law § 2805-j, k, l, m and Education Law § 6527(3). Similar quality assurance protections are envisioned under the Federal Patient Safety and Quality Improvement Act of 2005.

Pursuant to Education Law § 6527(3), certain documents generated in connection with the "performance of a medical or a quality assurance review function" or which are "required by the department of health pursuant to section twenty-eight hundred five-l" of the Public Health Law are generally not discoverable (Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135, 1136 [2d Dept 2007]; see Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 42 [2d Dept 2004]). Defendant, because it is the party that seeks to invoke the privilege, has the burden to [*3]demonstrate that the document sought was prepared in accordance with the relevant statutes that confer the privilege (Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135, supra at 1136; Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, supra at 46).

Here, Defendant, by means of Dr. Greene's Affirmation and Nurse Ferrara's Affidavit, merely asserts in conclusory fashion that the privilege applies to the requested document without making any showing as to why the privilege attaches (Fray v Fulton Commons Care Center, Inc., 51 AD3d 968 [2d Dept 2008]; Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135, supra at 1136). Thus, Defendant is to provide the document to the Court for an in camera inspection, together with its privilege log, if one exists, within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims.

The following papers were read and considered by the Court on Claimant's motion:

Papers Numbered

Notice of Motion, Affidavit

& Exhibits Attached1

Affirmation in Opposition

& Exhibits Attached2

Reply Affirmation3

Filed Papers: Claim, Answer