Savage v Kredentser

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Savage v Kredentser 2017 NY Slip Op 33241(U) April 12, 2017 Supreme Court, Albany County Docket Number: 900156-2015 Judge: Gerald William Connolly Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ALBANY COUNTY CLERK 04/18/2017 02:50 PM NYSCEF DOC. NO. 124 INDEX NO. 900156/2015 RECEIVED NYSCEF: 04/18/2017 STATE QFNEW YORK SUPREME COURT COUNTY OF ALB~NY I ' ESTATE OF JOYCE SAVAGE, HOWARD ALVIN SAVAGE, INDIVIDUALLY AND AS THE ESTATE REPRESENTATIVE, DECISION AND ORDER Index No.: 900156-2015 RJI No.: 01-15-117128 Plaintiffs, -against- DR. DANIEL C. KREDENTSER, WOMEN'S CANCER CARE ASSOCIATES, LLC, ST. PETER'S HOSPITAL CENTER OF THE CITY OF ALBANY, INC., ST. PETER'S NURSING AND REHABILITATION CENTER, INC. and JOHN DOES 1 THROUGH 50, Defendants. (Supreme Court, Albany County, All Purpose Term) })-~ - f CIJ APPEARANCES: Denise L. Savage, Esq. Savage Law PLLC · Attorneys for Plaintiffs 500 Carteret Street Beaufort, South Carolina 29902 .r'- .. --.. r---J '= ~1 ~ ·--:.,., D .J c-:i Cl c-.: ·- - .. ·-, C~) -n.. -~ r·- Mandy McFarland, Esq. . I Thom, Gershon, Tymann & Bonanni, LLP · · . I Attorneys for Defendants Kredentser and Women's Cancer Care Associates, LLC 5 Wembley Court, P.O. Box 15054 Albany, New York 12212-5054 -- ::St r. . J ~ Amanda Kuryluk, Esq. Maguire Cardona, P .C. Attorneys for Defendants St. Peter'si Hospital of the City ofAlbany and St. Peter's Hospital and Nursing Rehabilitation Center 16 Sag~ Estate · Albany, NewYork 12204 1 of 11 [.-~~-1 (' ··~ ·• CJ 1···· .. JI~,;'. . ~' --1 c:-·~·~" . ...._,_ i. Yi 1 t.:5 [*FILED: 2] ALBANY COUNTY CLERK 04/18/2017 02:50 PM NYSCEF DOC. NO. 124 INDEX NO. 900156/2015 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 I i Connolly, J.: I I I Defendants Dr. Daniel C. _l(redentser and Womeµ's Cancer Center Associates, LLC ' ' (collectively, the Kredentser Defendants) in this medical m~tpractice action seek an order pursuant I to CPLR §3103 granting a Protective Order with respect to the documents demanded in Plaintiffs' . I I Combined Discovery Demand numbered 20, 21, 26, 40, 41, 64 and 130 on the grounds that they are statutorily protected from disclosure. Plaintiffs have opposed the application and cross-moved for I sanctions, costs, expenses and fees., Oral argument was held in this matter on November 3, 2016. Via Decision and Order dated January 9, 2017, the Court directed, inter alia, that such motion be . I stayed until an in camera review of any and all documents responsive to such discovery demands I I were provided to the Court for determination of the applicab~lity of asserted privilege(s). The Court directed that the. St. Peters' Defendants submit a privilege; log to the Court with respect to such I discovery demands. and any and all responsive documents, !along with an affidavit of a party with knowledge addressing the applicability of such asserted privileges. The Court's January 9, 2017 Decision and Order is incorporated herein. The St. Peters' Defendants have, inter alia, submi~ed I . I . . a Fifth Supplemental Response to . Plaintiffs Combined Discovery Demands which provides )vith respect to the plaintiffs discovery I demands numbered 20, 21, 26, 40, 41, 64 and 130 as follows: . I As to demand 20, which seeks "[a]ll records pertaini!rig to reviews, complaints and any other reports concemirig the physician Defendants in this Actio~" (Pl. Discovery Demands, i!70) the S~. I Peters' Defendants assert that documents responsive to such demand are identified in the privilege I log and submitted for in camera review and are exempt :froi!n disclosure pursuant to Education Law I -2- 2 of 11 . [*FILED: 3] ALBANY COUNTY CLERK 04/18/2017 02:50 PM NYSCEF DOC. NO. 124 INDEX NO. 900156/2015 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 §6527(3) and Public Health Law §2805-m(a). As to demand 21, which seeks "[a]ll records filed with the Office of Professional Medical Conduct, the Office of Health Management Systems or any <;>ther agency, or for internal purposes, I pertaining to the voluntary or involuntary resignation or withdrawal of association or of privileges ! I with a Hospital. of any of the physician Defendants and/or the denial, suspension, restriction, I termination or curtailment of training of any physician, registFred physician, s assistant or registered specialist's assistance or nurse license/registered by the New York State Department of Education, who treated or were connected or involved in the treatment of the Deceased", such defendants assert . . ! I that documents that may be responsive to such demand a'.re identified in the privilege log and I i submitted for in camera review and are exempt from disclosure pursuant to Education Law §6527(3) a,nd Public Health Law §2805-m(a). I , J The New York Public Health Law shields from disclosure "information required to be collected and maintained pursuant to sections 2805-j and 2805-k of this article, reports required to . I be submitted pursuant to 2805-1 ofthis article and any incidetjt reporting requirements imposed upon diagnosti~ and treatment centers pursuant to the provisions of this chapter ..." 1 (Public Health Law 2805-m(l )). Public Health Law §2805-j requires that every hospital maintain a coordinated program I . for the identification and prevention of medical ... malpractice. Such program must include, inter I I alia, the periodic review ana the review as otherwise I warranted in specific· instances and . . I circumstances of the credentials, physical and mental capacity and competence in delivering health. care services of all persons employed or associated with the hospital 0805-j(c)). Public Health Law i 2805-k provides, inter alia, that prior to granting or renewing professional privileges or association ' -3- 3 of 11 I . I i , [*FILED: 4] ALBANY COUNTY CLERK 04/18/2017 02:50 PM NYSCEF DOC. NO. 124 INDEX NO. 900156/2015 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 i' I . I of any physician or hiring a physician, a hospital shall request from the physician certain information I I including, inter alia, the name of any hospital wlth or at jwhich the physician has or had any association, employment; privileges or practice; reason~ for discontinuation; .any pending professional medical misconduct proceedings and the i substance of the allegations; and ! documentation of course work and training as mandated by ~he Public Health Law and Education I Law. Information must be requested from any hospital or facility with or at which such physician ,,I ' had or has privileges, was associated, or was employed. Publi,c Health Law §2805-1 further provides I that all hospitals shall be required to report events defined ~s an "adverse event" to the necessary entity. Education Law §6527(3) further provides, in relevait part, that "[n]either the proceedings . i nor the records relating to performance of. a medical or a :quality assurance review function or ' participation in a medical and dental malpractice program .l. shall be subje~t to disclosure under I article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law". I Education Law §6527(3) and Public Health Law.§28~5-m "safeguard information collected as part of a medical review committee's periodic asses~ment of physicians' ·credentials and competence in order to encourage frank and objective discu~sion during the credentialing process" ... Public Health Law §2805-m confers complete confideftiality <;m information gathered by a hospital in accordance with Public Health Law §§2805-j and 2805-k, expressly exempting it from I disclosure under CPLR article 31." (Stalker v Abraham, 69 AD3d 1172, 1173 [3d Dept 2010] I . [internal citations and quotations omitted]; see also, Logu~ v Velez, 92 NY2d 13, 17). The party objecting to disclosure bears the burden of establishing . thal the material sought is privileged (see I -4- 4 of 11 [*FILED: 5] ALBANY COUNTY CLERK 04/18/2017 02:50 PM NYSCEF DOC. NO. 124 INDEX NO. 900156/2015 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 i generally, Stalker, supra; Fernekes v Catskill Regional Me4ical Ctr., 75 AD3d 959 [3d Dept 201 O]; Ross v Northern Westchester Hospital Ass 'n, 43 AD3d 1135 [2nd Dept 2007]). With respect to plaintiffs demands pursuant to Items 20 and 21, the St. Peters' Defendants . I have submitted, inter alia, a one pl;lge undated Report t~at lists patient complaints/grievance's pertaining to Dr. Kredentser, which has not been disclose~. Such report is not referred to in the I affidavit of Dr. Hanks, the Chief Medical Officer for St. Pet~r' s Health Partners Acute Care Albany, which discus~es Dr. Kredentser's credentialing file (whic~ includes 355 d~cuments submitted in ' camera), and such defendants only conclusorily assert that such document is privileged pursuant to I I ~ . : ' · Education Law §6527(3) and Public Health Law §2085-j. As the party invoking a privilege, the St. I . i Peters' Defendants bear the burden of demonstrating that such submission was prepared in accordance with the statutes they invoke to prevent.disclosure and is therefore privileged. There is I , no submitted affidavit which in any way addresses such document, that the document was prepared . .I in accordance with a relevant statute, that the hospital '.has a review procedure and that the I information was obtained or maintained in accordance with that review procedure (s~e generally, Stalker, supra). Accordingly, the Court will direct the St. Peters' Defendants to submit an affidavit I , I , i of its client addressing such one page undated "Report" within twenty (20) days of the date of this I Decision and Order or such document will be subject to disclosure. With further respect to such discovery demands, !the St. Peters' Defendants have also I submitted 355 documents contained within Dr. Kredentser's credentialing file, which credentialing I flle has not been disclosed. The St. Peters Defendants hav~ submitted the Affidavit of Dr. Hanks I I in which he avers, int~r alia, that he is in charge of St. Pet,r's credentialing file, which was at all -5- 5 of 11 i [*FILED: 6] ALBANY COUNTY CLERK 04/18/2017 02:50 PM NYSCEF DOC. NO. 124 INDEX NO. 900156/2015 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 times made and kept pursuant to the Public Health Law, that a1credentialing committee exists for the purpose of reviewing the credentials and competency of physicians prior to granting or renewing professional privileges, that the credentialing files are genera~ed and maintained pursuant to Public Health Law §§2805-j(b) and (c) and 2805-k, that the cred,entialing department obtains various I documents for review prior to making a determination as to, whether privileges should be granted . i . including, inter alia, physician application information, prior complaints made against a physician, ' records pertaining to professional medical conduct matters, 'prior lawsuit information, documents ! relating to any pending professional medical conduct pro.ceeding, information pertaining to a . ! malpractice action, any finding of professional misconduct, investigations of the Department of I i . Health, incident reports, letters . of recommendation from other institutions and colleagues, delineation of privilege forms, diplomas, certifications, in$uranc·e coverage information, license ' information, searches conducted by the office of medical professions, and materials relating to i completion of Continuing Medical Education courses. Dr. Hanks further averred that upon receipt ofthe necbssary documentation, the Hospital will I .I . determine whether a physician's privileges should be granted' and that Dr. Kredentser' s credentialing i file is maintained for the "purpose of assessing his competence for renewing privileges every two (2) years in order for the Hospital to maintain an active program to prevent medical malpractice, as required by the Public Health Law". Based upon the Court's :in camera review of the 35 5 documents I submitted, the Court will grant a protective order again'.st disclosure of the contents of such credentialing file to the extent that such documents are not ldcated outside of such credentialing file. . I. . . 1· Such determination is based upon the St. Peters' Defendants showing that it has a review procedure I ' -6- 6 of 11 [*FILED: 7] ALBANY COUNTY CLERK 04/18/2017 02:50 PM INDEX NO. 900156/2015 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 . and the cr~dentialing file is maintained for the purpose of ~ssessing Dr. Kredentser's competence . I I for renewing privileges, and, upon in camera review, their demonstration that the documents included in the credentialing file consist of the d~cuments Dr. Hanks noted would be obtained for I ' review prior to making a determination as to whether. a physician's request for privileges should be I granted (see generally, Stalker v Abraham, 69 AD3d 1172 pd Dept 201 OJ). ' It is to be noted however, that the Court is not granting a protective order as to each I document located within the credentialing file within the possession of the St. Peters' Defendants, to the extent they were created and/or maintained outside :of the credentialing file, as Dr. Hank's affidavit solely addressed such 355 documents in the privilege log to the extent they are maintained II . I within the credentialing file (c.f Bluth v Albany Med Ctr!, 132 AD3d 1131 [3d Dept 2015]; see •r \ • I , ' generally, Gabriels v Vassar Bros. Hosp., 135 AD3d 903 [2nd Dept 2016]). There has been no . . demonstration via affidavit of a representative of the St. Peters' Defendants as to whether certain documents contained in the credentialing file were created ot maintained outside of the credentialing I process and whether (and on what basis) they are subject to cl privilege, such as.the.quality assurance I privilege (see Bluth, supra). It would appear from the coJrt's in camera review that a number. of . I ~ . I . . such submitted documents may have been generated for purposes unrelated to Dr. Kredentser's credentialing file, some of which may be subject to other privileges, however, the documents alone ' ' I ' do not evidence the right to such privileges, and the St. Pe*rs' Defendants have not demonstrated any entitlement to a privileges. _I As to demand 26, seeking a copy of all repprts unler 10 NYCRR §405.8 concerning the deceased and any documents relating to any investigations !in connection therewith, the St. Peters' ' -7- 7 of 11 [*FILED: 8] ALBANY COUNTY CLERK 04/18/2017 02:50 PM INDEX NO. 900156/2015 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: .900156-15 Defendants assert that they are not in possession of any docm;nents responsive to such demand and, I ! I accordingly; no protective order need be issued with respectito such demand. I As to demand 40, seeking transcripts of interviews of the defendants' employees and I • I representatives by the State Department of Health of and concerning the deceased, t~e St. Pe~ers' Defendants assert that they are not in possession of any documents responsive to such demand and, ! accordingly, no protectiv~ order need be issued with respec~ to such demand. i As to demand 41, seeking retrospective investigafion reports conducted by physicians employed by or associated with the defendant hospital of or concerning the deceased, the St. Peters' I Defendants assert that they are not in possession of any docuµients responsive to such demand other I . than the November 25, 2011 Report of the Department of Public Safety and Quality Improvement I which has already been addressed by the Court. ! As to demand 64, seeking a full and complete copy ,of any and all statements, testimony or I documentation, in writing or other form, made by the physician defendants, to any hospital peer. . . .. ! review or credentialing committee regarding the treatmerit provided to the deceased during her I admissions, the St. Peters' Defendants assert that they a~e not in possession of any documents responsive to such demand. Upori in camera review, Document 223 is responsive to such demand, I and is not entitled to protection via a protective order as it is subject to the exception to the immunity • I provided by Education Law §6527(3) and Public Health Law §2805-m(2) as such document is a statement to the credentialing committee concerning the pla~ntiffs' case (see Logue v Velez, 92 NY2d i 13 [1998]; Syvartzenbergv Trivedi, 189AD2d151, 153 [41h pept 1993]). Such document, however, should be redacted to the extent it includes reference to -8- 8 of 11 J unrelated matter as noted by item "2". I [*FILED: 9] ALBANY COUNTY CLERK 04/18/2017 02:50 PM INDEX NO. 900156/2015 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 . i As to demand 13 0, -the St. Peters' Defendants assert lthat the personnel files for three nurses I were previously provided, however as defendant Dr. Krede:htser is not and was not an employee of I ~ ' .I . St. Peter's Hospital, the answering defendants assert that they are not in possession, custody, or i control of his personnel file. Additionally, as to the other ph~sician, as such physician was a resident at Albany Medical Center and not an employee of St. Peter's Hospital, the answering defendants are I ! i not in possession, custody or control of his personnel file. Ai.ccordingly, no protective order need be issued with respect to such demand. Otherwise, the Court has reviewed the parties' remaining arguments and finds them either . ' I - . unpersuasive or unnecessary to consider ·given the Court's determination. I I Accordingly, it is hereby ORDERED that the motion of the Kredentser Def~ndants for a protective order iS granted ! . . solely with respect to the 355 documents, except for docurµent 223, constituting Dr. Kredentser's I . credentialing file provided that such documents are not oth~rwise subject to disclosure due to their creation or maintenance by the St. Peters' Defendants for nurposes unrelated to such credentialing file; and it is further ORDERED that document 223 be disclosed in redacted form (as discussed in the Decision · and Order herein) to plaintiffs within twenty (20) days of the date cif this Decision and Order; and it is further I ORDERED that the St. Peters' Defendants are i directed to submit an affidavit of a representative of such defendants addresSing such one pagl ~dated "Report" and the applicability I of any asserted exemption with respect thereto, within twenty (20) days of the date of this Decision I I I -9- 9 of 11 [*FILED: 10] ALBANY COUNTY CLERK 04/18/2017 02:50 PM NYSCEF .. DOC. INDEX NO. 900156/2015 NO. 124 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 and Order; and it is further ORDERED that with respect to the one page undated "report",. such portion of the I I Kredentser Defendants' motion is stayed pending such further submissions; and it is i ORDERED that remaining portion of the Kredents6r Defendants' motion that has not been . I . granted or stayed, is otherwise denied. This shall constitute the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for the Kredentser Defe~dants. The below referenced original papers are being retained by chambers. A copy of the Decision and Order is being transferred to the Albany County Clerk's Office. The signing of this Decisio* and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry. SO ORDERED. ENTER I £M·4v. Dated: April _l1:__, 2017 Albany, New York Gerald:w. Connolly Acting:~u reme 8ourt Justice : 2. 3. 4. i ' : I. ~/".-o I-... ' :+-- Papers Considered: . .. ~- ( ~./"/7 c.(? . Order to Show Cause dated September 16, 2016; Attorney Affidavit ofM. McFarland, Esq. dated September 13, 2016; accompanying exhibits A-F; Memorandum of Law dated September 13, 2017 Notice ofD. Savage, Esq.'s Affirmation in sµpport of Motion Against Dr. Daniel C. Kredentser and Women's Cancer Care Asso,ciates for Sanctions under C~LR 3125, · Plaintiffs' Costs, Expenses and Fees Under t2 NYCRR 130-1.1, and Opposition to Any Proposed Stay of This Court's September 7, 2016 Ruling dated September 14, 2016; Affirmation ofD. Savage, Esq. dated September 14, 2016 with accompanying exhibits 1-4; ! Affidavit in Response to Co-Defendants' Orqer to Show Cause for a Protective Order of A. Kuryluk, Esq. dated October 12, 2016 with accompanying affidavit of Dr. Steven Hanks dated September 30, 2016; I · . · Attorney Affidavit of M. McFarland, Esq. dated October 7, 2016 with accompanying exhibits A-B which include the Affidavits of Dr. Kredentser dated October 6, 2016 I -10- 10 of 11 [*FILED: 11] ALBANY COUNTY CLERK 04/18/2017 02:50 PM .. ' ....DOC. NYSCEF NO. 124 INDEX NO. 900156/2015 RECEIVED NYSCEF: 04/18/2017 Savage v. Kredentser, et al. Index No.: 900156-15 . 5. 6. 7. · 8. 9. 10. I , and Tammy Sweet dated October 6, 2016; Memorandum of Law dated October 7, I 2016· . : Denise L. Savage's Affirmation in reply dated October 21, 2016; Reply Affidavit of M. McFarland, Esq. dated October 2·1, 2016 with accompanying ! exhibit A; Court Order of September 22, 2016; Decision and Order of October 19, 2016; :Oecision and Order of January 9, 201 7; . Letter from the St. Peters' Defendants' Co~nsel dated February 10, 2017; Fifth Supplemental Response to Plaintiffs Combined Discovery Demands dated February 10, 2017 with accompanying privilege log; Affidavit of Dr. Hanks dated February 3, 2017; In Camera Review of Dr. Kredentser's ~redentialing File and One Page Report i Listing Patient Complaints/Grievances. ' I I . ! ' ·, -11- 11 of 11

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