The following papers were read on motion by Defendant for an order compelling
disclosure from a non-party:
Notice of Motion, Corrected Affirmation and Exhibits
Opposing Affirmations and Exhibits and Sealed Exhibits
Reply Affirmation and Exhibit
Filed Papers: Claim; Answer
Upon the foregoing papers, this motion is granted.
In this motion the Defendant seeks an order compelling disclosure from a
non-party, the University of Rochester, Strong Memorial Hospital (Strong), where
Claimant was a first year resident at the time of the underlying incident
herein. This claim arises from an autopsy of an inmate from a State
correctional facility at which she alleges that she was exposed to tuberculosis.
The Defendant asserts, without challenge, that the details of the autopsy at
issue, Strong’s policies and procedures and the conduct of its employees,
are relevant to CPLR article 16 apportionments and may also provide a proximate
cause defense. The Claimant takes no position with respect to this
As part of the claim against the State, the Defendant served non-party
subpoenas for certain documents relating to said autopsy and the deposition of
Leon A. Metlay, M.D., who purportedly would provide relevant testimony relative
to this claim.
Strong has opposed the disclosure of what it contends are legally protected
confidential quality assurance materials. In question are two document requests
originally sought by subpoena (Exhibit 1 to the moving papers). First is a memo
authored by Dr. Metlay, dated March 24, 1996, a redacted copy of which has
previously been supplied to the Defendant (Exhibit 4 to the moving papers and
Exhibit C to the opposing papers), and an unredacted copy of which has been
submitted “under seal” to me (Exhibit D to the opposing papers)
should I decide to review the same in camera. For ease of reference this will
be referred to as the Metlay memo.
The second document request seeks the records of any reports made and/or
investigations into the July 22, 1995 autopsy of Jesus Carderas (95-A-167N)
and/or the precautions at said autopsy. Again Strong produced one document to
the Defendant, but alleges that the remaining documents fall under the rubric of
quality assurance materials and copies of the documents sought hereunder have
been submitted “under seal” to me (Exhibit G to the opposing papers)
should I decide to review the same in camera. For ease of reference these
documents will be referred to as the Carderas materials.
Initially, I note that in its opposing papers Strong has supplied as Exhibit F
a listing of documents that it asserts are immune from discovery as quality
assurance documents (CPLR 3122[b]), to wit, the privilege log ( Park Assoc.
[In re Subpoena Duces Tecum to Doe -- New York State Attorney Gen., Medicaid
Fraud Control Unit], 99 NY2d 434, 442). I am satisfied that the issue of
such alleged privilege was the subject of ongoing discussions between the
Defendant and Strong, the privilege log has now been supplied, and there was no
waiver of the privilege. Defendant’s request in that regard is
Accordingly, I now address the substance of the motion and privilege(s)
asserted. Addressing the issues seriatim, the Defendant first disputes
the applicability of the protections for quality assurance review materials of
Education Law §6527(3), as it contends that the statutory purpose is to
benefit patient care. Since the materials in question here relate to an autopsy
of Carderas, who was never a patient at Strong, and the autopsy in question was
performed pursuant to a contractual obligation, Defendant disputes
Strong’s reliance upon a statute not designed to apply to non-patients.
In so doing, it reviews Education Law §6527(3)(b) and its reference to a
committee responsible for the evaluation and improvement of the quality of care
rendered in a hospital, urging that since Carderas received neither health
services nor medical care, because he was never a patient, the statute does not
apply. In sum, no medical care or health services provided to the non-patient
decedent, ergo, no statutory or common law privilege relating to the records of
This line of thinking raises an unaddressed but eventual question. Would the
statute apply if Carderas had been a patient at Strong for treatment of his
tuberculosis, yet the subject for the ostensible quality assurance review
committee was limited to his autopsy and its sequelae?
Query whether one’s status as a patient or a non-patient trumps the nature
of the review? Too much speculation for today, but a question for another
Moving forward, assuming arguendo that even if the autopsy records of a
non-patient would qualify as quality assurance review materials, Defendant
argues that Strong must demonstrate that the records in question were produced
because of a quality assurance review. In so arguing, Defendant parses that
part of the redacted Metlay memo which is addressed to the Director of Clinical
Support Services, not a quality assurance committee, and notes that the subject
of the memo is an “Autopsy Work Plan”, ostensibly not concerning
quality assurance purposes, and that the memo appears to be in response to a
letter from the New York State Department of Health (DOH). Thus, the Defendant
postulates that the memo was prepared to respond to a DOH inquiry and therefore
cannot be related to the “performance of a medical or a quality assurance
review function” (Education Law §6527). Specifically addressing
the DOH inquiry, the Defendant preemptively argues that since none of the
contested documents constitute a report required pursuant to Public Health Law
§2805-l, they are not protected by Education Law §6527(3).
Finally, Defendant contends that an in camera inspection would not be
appropriate or necessary if I agree that the autopsy records of a non-patient
are not protected by the statutory privilege. Thus Defendant concludes that it
is entitled to all the materials in question and then it will proceed to conduct
the deposition of Dr. Metlay.
Needless to say, Strong vigorously opposes the release of any of these
materials and asserts its privilege. First, the amount of discovery already
provided by Strong to the Defendant is not dispositive of the question before
me, to wit, the entitlement to the documents in dispute. Second, the
designation on the redacted Medlay memo “CONFIDENTIAL - QUALITY ASSURANCE
MATERIAL” no way impedes my inquiry, although one might reasonably infer
that it was prepared with that penumbra and a presumed expectation of privilege.
Indeed, Dr. Medlay avers that the Autopsy Review Committee was appointed to
serve on ad-hoc basis pursuant to Strong’s Quality Assurance Plan (see
Exhibit E to the opposing papers). Dr. Medlay makes the plausible argument that
autopsies and autopsy service have implications in the control of infection to
staff and other patients, but plausible as that may be, it does not transform
Carderas to the status of a patient of Strong. Absent such designation, the
requested materials are not privileged by statute.
In Katherine F. v State of New York (94 NY2d 200, 205), the Court of
Appeals observed that the “thrust of section 6527 (3) is to promote the
quality of care through self-review without fear of legal reprisal....
‘to assure that medical review committees “may frankly and
objectively analyze the quality of health services rendered” by
hospitals’ [citations omitted] [emphasis supplied].” The use of
the highlighted terminology reinforces the notion that the statute is intended
to cover the care and health services rendered to patients. I have found no
judicial precedent to guide me on this path, and no appellate authority that
includes non-patients, as in the instant matter, within the statute’s
otherwise broad umbrella.
I found interesting the comments in Lexstat 3-16 Treatise on Health Care Law
§ 16.06, in a discussion on Hospital Incident Reports, defined as:
any event that is not consistent with the routine operation of the hospital or
the routine care of a particular patient.... It may be an accident or a
situation that might result in an accident. A hospital produces incident
reports to document the facts related to an incident, to alert its insurer to a
potential liability, to create data that will permit review of the number and
type of incidents occurring in the hospital, or because such incident reports
are required by statute or regulation to be filed with an administrative agency.
Although peer review investigations may be protected by a non-discoverability
statute, the hospital may not be able to establish that an incident report
constitutes a medical review function and, therefore, is entitled to protection.
Typically, incident reports will not be protected under state peer review
statutes, because such reports represent a contemporaneous statement of fact
generated in response to a specific event rather than a general concern with
I do not question the Legislature’s protection of quality assurance
materials, and have little doubt that confidentiality allows candid and critical
reviews to blossom, but with all due respect to Strong’s passionate
argument, it seems hyperbolic to believe that my ruling here might imperil the
lives of patients.
My holding is narrow and specific, and is not intended to pierce the veil of
honesty and forthrightness statutorized in Education Law §6527(3). The
Fourth Department has recently reiterated the trial court’s duty to apply
the “unambiguous language of the statute” (Roberts v State of New
York, 11 AD3d 1000, 1001) in considering legislative intent, albeit in
another context. These materials are to be released merely because the decedent
was never a patient at Strong. Since I find that the statute provides no
protection to Strong here, it is not necessary for me to review in camera the
materials provided by Strong.
Moreover, given my determination that the statute does not apply to this
non-patient, it is similarly not necessary for me to examine whether Strong has
met its purported burden of demonstrating that the Autopsy Review Committee was
appointed pursuant to its Quality Assurance Plan, or whether Strong’s
proffered “Hospital-Wide Quality Improvement Plan, 1995” (Exhibit E
to the opposing papers) satisfies the requirements of 10 NYCRR 405.6.
Similarly, it is not necessary for me to divine whether the Autopsy Review
Committee or the Infection Control Committee were investigating and reporting on
this matter at the direction of Strong’s Quality Assurance Committee or
its Coordinator, a circumstance which might require a plenary hearing. Again,
the seminal issue for me is the statute’s applicability to non-patients,
not whether Strong is trying to extend the quality assurance privilege to, for
want of a better expression, non-quality assurance committees.
Accordingly, the motion is granted and Strong is directed to supply the
Defendant with the materials in question within 30 days of service upon it of a
file-stamped copy of this order, for use at a deposition of Dr. Metlay, unless
there is an appeal herefrom, in which event this order shall be deemed stayed
pending appellate review.