March 6, 2022

In its Opinion & Order dated December 22, 2021, the Supreme Court of the State of New York Appellate Division: Second Department (“New York Appellate Court”) held: “we conclude that the party asserting the quality-assurance privilege must demonstrate that any statements made at such a meeting that are claimed to be privileged were made by a nonparty. Therefore, where the meeting’s minutes do not identify the speaker, the party-statement exception to the quality-assurance privilege applies. Accordingly, the Supreme Court properly determined that statements contained in the defendant South Nassau Communities Hospital’s peer-review committee meeting minutes that were attributed to the “committee,” or wherein the speaker was not identified, were not entitled to the quality-assurance privilege afforded by Education Law § 6527(3) and Public Health Law § 2805-m(2), as it could not be determined if those statements were in fact made by a nonparty.”

New York’s liberal discovery policy, generally governed by CPLR 3101(a), broadly mandates full disclosure of all matter material and necessary in the prosecution or defense of an action. However, notwithstanding the broad right to disclosure, the CPLR establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney’s work product, also absolutely immune (CPLR 3101[c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship.

Public Health Law § 2805-j provides, in pertinent part, that “[e]very hospital shall maintain a coordinated program for the identification and prevention of medical . . . malpractice.” Such a program must include at least, among other things, the “establishment of a quality assurance committee with the responsibility to review the services rendered in the hospital in order to improve the quality of medical . . . care of patients and to prevent medical . . . malpractice” (§ 2805-j[1][a]).

Education Law § 6527(3) shields from disclosure under article 31 of the CPLR “the proceedings [and] the records relating to performance of a medical or a quality assurance review function or participation in a medical . . . malpractice prevention program,” as well as testimony of any person in attendance at such a meeting when a medical or quality assurance review function or medical malpractice prevention program was performed. 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. 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 medical care. Public Health Law § 2805-m(2) affords similar protection from disclosure for “records, documentation or committee actions or records” required pursuant to, inter alia, Public Health Law 2805-j.

However, both Education Law § 6527(3) and Public Health Law § 2805-m(2) provide for identical exceptions for the discovery of party statements, that is, statements made by any person in attendance at such a quality control or medical malpractice meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting. The evident purpose of this provision is to permit discovery of statements given by a physician or other health professional in the course of a hospital’s review of the facts and circumstances of an earlier incident which had given rise to a malpractice action. Those persons whose conduct is subject to review were not intended to benefit from the protections afforded by the statutes.

The New York Appellate Court stated in the case it was deciding: “Here, it is undisputed that the defendants met their initial burden of demonstrating that the “Trauma Peer Review Committee” meeting minutes at issue were prepared in accordance with the relevant statutes, Education Law § 6527(3), and Public Health Law § 2805-m, as they were created as part of a required quality-assurance review program, and therefore are protected from disclosure … However, this case presents the additional question of whether the privilege extends to those statements in the minutes that were attributed to the “committee” or wherein the speaker is not identified … we find that as the party seeking to assert the quality-assurance privilege, it was the defendants’ burden to demonstrate that the statements they sought to withhold from disclosure were not party statements subject to disclosure.”

Source Siegel v. Snyder, D67304.

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