New York State Court of Claims

New York State Court of Claims

FARAJYAN v. THE STATE OF NEW YORK, #2005-028-522, Claim No. 106187, Motion No. M-69155


Case Information

In the Matter of the Claim of KARINE FARAJYAN, as mother and natural guardian of ELINA FARADJIAN, an infant under the age of fourteen (14) years
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
JEFFREY A. MORSE, P.C.BY: Bernard A. Anderson, Esq.
Defendant's attorney:
BY: Rachel Goldberg, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 9, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


In reaching its decision on the present motion, the Court has read and considered the following papers:
(1) Notice of Motion for an in camera review of the quality assurance review file of the University Hospital of Brooklyn, dated September 23, 2004 and filed on September 27, 2004;

(2) Affidavit in Support of Jeffrey A. Morse, Esq. sworn to September 23, 2004 and filed on September 27, 2004 (Morse Affidavit);

(3) Affirmation in Opposition of Assistant Attorney General Rachel Goldberg dated November 5, 2004 and filed on November 12, 2004 with Exhibits A-D (Goldberg Affirmation);

(4) Reply Affirmation of Bernard A. Anderson, Esq., dated November 24, 2004 and filed on November 26, 2004 (Anderson Affirmation).

The application herein seeks an in camera inspection of the file and documents of the Downstate Medical Center as they relate to the Infant Claimant's treatment, excluding such documents that contain conclusions reached by a quality review committee (Notice of Motion, pp 1-2 [unpaginated]).

The State opposes the application, contending that the items sought by the Claimant are privileged (Goldberg Affirmation, pp 2-3 [unpaginated]). In reply, the Claimant's attorney argues that the State has failed to prove that any of the papers requested were part of the quality assurance file (Anderson Affirmation, p 4). It is alleged by Claimant that the files were compiled in the regular course of business and that, therefore, they are not protected by either Public Health Law §2805 or Education Law §6527.

Section 6527 of the Education Law provides in pertinent part:
Neither the proceedings nor the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program nor any report required by the department of health pursuant to section twenty-eight hundred five -1 of the public health law described herein, including the investigation of an accident reported pursuant to section 29.29 of the mental hygiene law, shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law. [emphasis added]

Section 2805(l) of the Public Health Law provides, again in pertinent part:

2. The following incidents shall be reported to the department:
(a) patients' deaths or impairments of bodily functions in circumstances other than those related to the natural course of illness, disease or proper treatment in accordance with generally accepted medical standards;

In interpreting these sections, the case law is well settled that quality assurance review material is not discoverable (see Marte v Brooklyn Hospital Center, 9 AD3d 41, 48 [2d Dept 2004]) and that the protection afforded to such material is broad (see generally Scinta v Van Coevering, 284 AD2d 1000 (4th Dept 2001) [credentialing files]; Zion v New York Hospital, 183 AD2d 386 (1st Dept 1992) [accreditation of hospital]; Albany Medical Center Hospital v Denis, 161 AD2d 1030 (3d Dept 1990) [minutes of professional misconduct proceedings]).

The basis for this privilege is the public policy rationale that the need for confidentiality of the review proceedings outweighs the need for discovery (see Lilly v Turecki, 112 AD2d 788 [4th Dept 1985]).

However, where the records are not part of the quality assurance process or where they are merely duplicative of general hospital records, they are discoverable (see Marte v Brooklyn Hospital Center, supra at p 48).

In support of the argument that the documents are not discoverable, the attorney for the Defendant relies on two affidavits. The first is the affidavit of Brenda Joseph, the Head Nurse at the Pediatric Intensive Care Unit at Downstate Medical Center. Based upon this affidavit, the Defendant maintains that the documents in question are for the purpose of a quality assurance investigation (Goldberg Affirmation, ¶ 15).

After reviewing the affidavit of Ms. Joseph, the Court is constrained to disagree with the conclusions of the Defendant. Most of the affidavit is an attempt at boot strapping. Ms. Joseph's affidavit is ostensibly offered to prove that the documents must have been part of a review process. However, Ms. Joseph has no recollection of the incident report or statements, and does not know if they were prepared at her request or at someone else's (Goldberg Affirmation, Exhibit C, ¶ 5). Neither does she know why the nurses provided the statements, though she assumes they were pursuant to an investigation of the incident (Goldberg Affirmation, Exhibit C, ¶¶ 7-8). Ms. Joseph also does not recollect if a quality assurance staff meeting was held or whether or not there was an educational follow-up, however, she states that if a formal meeting had been held, minutes would have been taken – and no minutes have been found (Goldberg Affirmation, Exhibit C, ¶¶ 9-10).

Similarly, the affidavit of Dalia Pastor, Senior Coordinator in the department of Risk Management, is bereft of any information other than to say that no file, report or record exists concerning this patient (Goldberg Affirmation, Exhibit D, ¶ 5).

Based upon all of the above, the Court cannot conclude with any degree of certainty that these statements and incident reports were prepared for quality assurance review, necessitating that they be shielded from disclosure. On the contrary, it appears that no risk assurance meetings appeared to have been held, and no file, report or records were ever made. The fact that some of the material sought to be withheld was found in the Hospital's medical record (Goldberg Affirmation, Exhibit D, ¶ 2) – and there is no indication where the remainder was found – further mitigates against the conclusion that this was part of a review file.

Based upon the foregoing, the Court partly grants the Claimant's motion with the exception that the incident report from January 26, 1994, which the Court finds relates to another patient, shall not be disclosed.

Accordingly, based upon the foregoing, the claimant's motion is granted, except as noted in the previous paragraph.

March 9, 2005
Albany, New York
Judge of the Court of Claims