The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) stated in its Memorandum and Order dated May 4, 2018 that Education Law § 6527 (3), which “shields from disclosure the proceedings [and] the records relating to performance of a medical or a quality assurance review function,” nonetheless contains an exception where the disputed materials are “statements made by any person in attendance at . . . a [medical or quality assurance review] meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.” Education Law § 6527 .
In the case the New York Appellate Court was deciding, the plaintiff had suffered a stroke and was treated briefly at the emergency department of Millard Fillmore Suburban Hospital (“MFSH”) before being transferred to Buffalo General Medical Center (“Buffalo General”). Both MFSH and Buffalo General are part of defendant Kaleida Health’s hospital network.
At Buffalo General, the plaintiff began treating with defendant Robert N. Sawyer, Jr., M.D. The plaintiff alleged that at some point during that treating relationship, defendant Sawyer showed the plaintiff and the plaintiff’s daughter a PowerPoint slide show describing the plaintiff’s treatment. The parties did not dispute that defendant Sawyer presented the same slide show to a quality control committee at MFSH, where he served as Chief of Stroke Services.
During the discovery process after the plaintiff filed his New York medical malpractice action, he sought disclosure of the slide show that defendant Sawyer had shown him and his daughter. The defendants moved for a protective order, asserting that the slide show is privileged under Education Law § 6527 (3).
The New York Appellate Court stated that there is an exception to the quality assurance review privilege where: (1) the statements were made during a quality assurance review meeting; (2) that review meeting concerned the same subject matter as the malpractice action; and (3) the statements were made by a defendant in the action. The New York Appellate Court stated that “statements” include written statements, such as letters, notes, and the PowerPoint slide show at issue in the present case.
The New York Appellate Court held that inasmuch as the plaintiff alleges medical malpractice beginning with his treatment at MFSH, Sawyer is named as a defendant in the action, and Sawyer admittedly presented the slide show at a quality assurance review meeting that concerned, inter alia, plaintiff’s care, the trial court had properly denied the defendants’ motion for protective order and properly directed disclosure of the disputed slide show.
Source Drum v. Collure, 166 CA 17-00022.
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