In its Memorandum and Order entered on July 26, 2023, the Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) held that an email from a doctor to the chief operating officer of a hospital and to six other recipients must be disclosed to the New York medical malpractice plaintiffs.
The plaintiffs had moved to compel the defendants to disclose an email sent by defendant Miranda Harris-Glocker, M.D., to the chief operating officer of defendant Highland Hospital and six additional recipients. Defendants William O’Malley, M.D., Matthew Bresler, M.D., Highland Hospital, and University of Rochester Medical Center cross-moved for a protective order on the ground that the subject email was privileged pursuant to Education Law § 6527 (3) and
Public Health Law § 2805-m (2). The trial court granted the defendants’ motion and denied the plaintiffs’ motion. The plaintiffs appealed.
New York Appellate Court Order
The New York Appellate Court stated that there is no dispute that the subject email is material and necessary in the prosecution of the plaintiffs’ medical malpractice claim. Furthermore, the defendant hospital failed to establish that the email was generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j. “One of the seven email recipients, Highland Hospital’s chief operating officer, averred in support of the cross-motion that she was responsible for Highland Hospital’s quality assurance program; however, the remaining six email recipients were neither Highland Hospital employees nor involved in Highland Hospital’s quality assurance review process. Further, although Highland Hospital’s senior quality improvement coordinator averred that the email contained information that she would have requested from Harris-Glocker for quality assurance review purposes, “[a] party does not obtain the protection of [Education Law § 6527(3)] merely because ‘the information sought . . . could have been obtained during the course of a hospital review proceeding . . . [T]he exemption applies only where the information was in fact so obtained’ ” (Crea v Newfane Inter-Community Mem. Hosp., 224 AD2d 976, 977 [4th Dept 1996]). Thus, the subject email is not exempted from disclosure under CPLR article 31 pursuant to the confidentiality conferred on information gathered by defendant in accordance with Education Law § 6527 (3) and Public Health Law § 2805-m … In light of our conclusion, plaintiffs’ alternative contention that the email falls within a statutory exception to the privilege is academic.”
Source Dipasquale v. Lim, M.D., CA 22-00469.
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