New York State Court of Claims

New York State Court of Claims

MUCKOVA v. THE STATE OF NEW YORK, #2006-013-011, Claim No. 97318, Motion No. M-68703


Case Information

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:
Defendant’s attorney:
Attorney General of the State of New York
Assistant Attorney General

For Strong Memorial Hospital:EDWARD G. CASE, ESQ.
Third-party defendant’s attorney:

Signature date:
April 4, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


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 motion.

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 denied.

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 the autopsy.

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 day.

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[3]). 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 improving care....

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.

April 4, 2006
Rochester, New York

Judge of the Court of Claims