LYNCH v. THE STATE OF NEW YORK, #2009-030-532, Claim No. 113645, Motion No.
Motion to compel disclosure of incident reports, internal rules and regulations,
etc. in claim alleging assault by fellow patient at Bronx State Psychiatric
Center, and alleged negligent failure by State personnel to protect patient,
including failure to properly supervise and train staff. Defendant did not
establish that records sought were prepared exclusively for quality assurance
purposes. Defendant to produce records for in camera inspection, disclose last
known address of former employee, provide copies of regulations applicable on
the day of the incident with regard to eye-to-eye contact; table of contents for
department manual and clinical procedure manuals in effect, or provide an
affidavit by a person with knowledge attesting to the lack of such manuals or
|LEILA LYNCH and KEVIN LYNCH, as Co-Guardians of the person of RONALD LYNCH
1 1.The caption has been amended to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
THE COCHRAN FIRM/WEITZ, KLEINICK & WEITZ, LLPBY: STEVEN GOLD, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: CHERYL RAMEAU, ASSISTANT ATTORNEY GENERAL
May 6, 2009
See also (multicaptioned
The following papers were read and considered on claimant’s motion to
1,2 Notice of Motion, Affirmation in Support by Steven Gold, attorney for
Affirmation in Opposition by Cheryl Rameau, Assistant Attorney General and
Reply Affirmation by Steven Gold
Sur-Reply by Cheryl Rameau and attached exhibits
6,9 Filed papers: claim, answer, amended answer, counter-claim
Claimants are the co-guardians of the person of Ronald Lynch. When Ronald
Lynch was a patient in Bronx State Psychiatric Center, he was allegedly
assaulted by a fellow patient, Christopher F., on January 17, 2003, sustaining
injury. Among the theories of liability advanced is the alleged negligence of
the facility in failing to protect Ronald Lynch from an assault by his fellow
patient, failing to supervise, and failing to adequately train staff.
A dispute concerning consent discovery was brought to the court’s
attention, and is the subject of this motion practice. Specifically, a notice
to produce in letter form sent to defendant’s attorney resulted in a
letter response from same indicating objections to production based upon the
privileges associated with Mental Hygiene Law §29.29; Public Health Law
§2805-l, and the privileges afforded to documents prepared by health
facilities for quality assurance purposes under Education Law §6527(3).
Claimants move for an order compelling production of incident reports related
to the assault of the claimant on January 17, 2003 after in camera inspection of
same; copies of guidelines and rules and regulations defendant “previously
agreed to produce,” the “logs of bed checks and 15 minute rounds on
Ward 3 on January 17, 2003 from 8 p.m. to midnight” with appropriate
redaction as to all patients except Mr. Lynch’s alleged assailant,
Christopher F.; a further deposition of Dr. Battaglia to replace testimony lost
by the court reporter and for additional testimony regarding outstanding
discovery, and other relief. [Affirmation in Support by Steven Gold, ¶2].
In additional demands, claimant seeks production for deposition of Nurse
Virginia Sali, who was identified as having been one of the staff members on
duty on Ward 3 between 9:00 p.m. and midnight on January 17, 2003. [See
ibid. Exhibit A].
Defendant has produced photocopies of “patient verification check”
forms for Ward 3 for January 17, 2003 [see Sur-Reply, ¶4, Exhibit B]
indicating that such production is responsive to the request for bed check logs,
and also writes that the “rules concerning one to one eye contact”
are irrelevant given that the medical records produced concerning Mr. F. show
that he “was not on one to one eye contact the day of the incident.”
[Ibid. ¶5]. Counsel also indicates that Nurse Virginia Sali is no
longer a State employee.
With regard to further deposition of Dr. Battaglia, defendant has agreed to
produce the witness for further deposition with regard to the portions of the
deposition lost by the court reporter, but will not produce him for the purpose
of further testimony concerning the investigation of the incident.
In this regard, while Civil Practice Law and Rules §3101(a) provides that
“there shall be full disclosure of all matter material and necessary in
the prosecution . . . of an action,” certain documents generated in
connection with the “performance of a medical or a quality assurance
review function” are not subject to disclosure. Education Law §
6527. Similarly, no reports which are required to be filed under Public
Health Law § 2805-l, “including the investigation of an incident
reported pursuant to section 29.29 of the mental hygiene law, shall be subject
to disclosure” under Civil Practice Law and Rules §3101,
“except as hereinafter provided or as provided by any other provision of
law.” [Ibid.]. It is the party raising the privilege who has the
burden of establishing that the documents sought were prepared in accordance
with the relevant statutes. See Marte v Brooklyn Hosp. Ctr., 9
AD3d 41 (2d Dept 2004). Records generated at the behest of a quality assurance
committee for quality assurance purposes, including compilations, studies or
comparisons derived from multiple records should be privileged, whereas records
simply duplicated by the committee are not necessarily privileged. Incident
reports are defined as “reports of accidents and injuries affecting
patient health and welfare.” Mental Hygiene Law §29.29.
What does defendant need to do to establish its burden of demonstrating that
the reports sought are privileged from disclosure? The Second Department noted,
in refusing to impose a “blanket protective order” in a lawsuit
involving an assault on a patient by an intruder, that
“[a] review of the affirmation in support of the Hospital’s motion
for a protective order and the attached documents does not reveal any statement
by the Hospital that it actually prepared any committee review incident reports
for the Department of Health as required under Public Health Law §2805-l.
The Hospital thus failed to establish its burden that any documents were
prepared under Public Health Law §2805-l and/or Education law
§6527(3).” Marte v Brooklyn Hosp. Ctr., supra at 46 -
The court remanded the matter to the trial court for in camera review, directing
“. . . the Supreme Court, in the exercise of its discretion, should
limit the scope of discovery as it deems proper. If the Hospital can establish
that it conducted a review process in accordance with Public Health Law
§2805-l, then the Supreme Court should conduct an in camera review of the
documents for which the Hospital asserts a privilege under Education Law
§6527(3) and Public Health Law §2805-l . . .” Marte v
Brooklyn Hosp. Ctr., supra at 47-48.
The Court of Appeals, too, has indicated that all records are not necessarily
privileged, in a lawsuit involving medicaid fraud and interpretation of a
federal statute protecting quality assurance materials. See Matter of
Subpoena Duces Tecum to Jane Doe, 99 NY2d 434 (2003). The Court of Appeals
“For the future, we recommend that a party seeking to protect documents
from disclosure compile a privilege log in order to aid the court in its
assessment of a privilege claim and enable it to undertake in camera review. The
log should specify the nature of the contents of the documents, who prepared the
records and the basis for the claimed privilege . . .(citation
omitted).” Matter of Subpoena Duces Tecum to Jane Doe,
supra at 442.
Since Katherine F. v State of New York
, 94 NY2d 200 (1999) was decided
there appears to have been a recognition that at a minimum in camera review of
documents such as those requested here will protect all concerned. Fray v
Fulton Commons Care Center, Inc.
, 51 AD3d 968 (2d Dept
2008);Ross v Northern Westchester Hosp.
, 43 AD3d 1135 (2d Dept 2007); see
also Chardavoyne v Cohen
, 56 AD3d 508 (2d Dept
Even when the Appellate Division found
that the trial court had erroneously released documents to the plaintiff in a
personal injury action, the fact of in camera review is noted and implies that
such is warranted as a matter of course given the countervailing interest of
full disclosure in a serious lawsuit. See e.g. LaPierre v Jewish Bd.
of Family and Children Services, Inc.
, 47 AD3d 896 (2d Dept 2008);
Klingner v Mashioff
, 50 AD3d 746 (2d Dept
Here, defendant has submitted an affidavit - actually two affidavits - by an
employee of the Bronx Psychiatric Hospital, Gerald Peet. [Affirmation in
Opposition by Cheryl Rameau, Exhibit A; Sur-reply, Exhibit A]. These assert in
conclusory fashion that the privilege applies to the requested documents. The
second affidavit - reflecting counsel for claimant’s argument that the
affiant did not indicate that any reports were sent to the Department of Health
- adds a sentence to the effect that the reports were sent to the Department of
At this phase, the court finds that the defendant has not sustained its burden
of demonstrating that the documents sought were prepared in accordance with the
relevant statutes alone. Accordingly, defendant is directed to provide the
court with copies of the requested documents for in camera review, together with
a privilege log, and an affidavit by a person with knowledge indicating the
purpose or purposes for the preparation of same, by whom the documents were
prepared, the purpose or regulation under which they have been prepared, and
where the requested documents have been disseminated within forty (40) days of
the filing of this decision and order in the Office of the Clerk of the Court of
Claims. Matter of Subpoena Duces Tecum to Jane Doe, supra.
Defendant is directed to disclose the last known address of Nurse Virginia Sali
[see Public Officers Law Article 6-A], and is further directed to either
provide copies of the regulations applicable on the day of the incident with
regard to one-to-one eye contact; the table of contents for Bronx Psychiatric
Center’s department manual, and clinical procedure manual in effect in
2003, or provide an affidavit by a person with knowledge attesting to the lack
of such manuals or guidelines, all within the same forty (40) day time
Of necessity, the time within which to file a Note of Issue and Certificate of
Readiness is extended to December 30, 2009 for completion of discovery.
May 6, 2009
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
. Remanded for in camera inspection to
determine if sought documents - incident reports and investigative reports -
are privileged, in lawsuit involving death of nursing home resident.
. Remanded for in camera inspection of
documents in malpractice case involving injury to patient falling out of bed.
“Since it is impossible upon this record to ascertain what documents are
in the defendant’s possession, and to determine the nature of those
documents, we remit the matter to the Supreme Court, Westchester County, to
determine, after an in camera review, which of the documents or parts thereof,
if any, are protected from disclosure by the statutory privileges.”
Ross v Northern Westchester Hosp. Assn.
at 1136 )
. Remitted for in camera inspection of
documents sought in lawsuit alleging tortious interference with contract.
“However, the court erred in issuing a blanket denial of the plaintiff's
document requests based on the confidentiality privileges accorded records of
the medical peer-review process under Education Law § 6527 and Public
Health Law § 2805-m. Although the Supreme Court properly determined that
the defendants and nonparties
. . . established, prima facie, that the documents sought were prepared in
accordance with the relevant statutes and as part of . . . [a] peer-review
process . . .(citations omitted) it improperly rejected the plaintiff's
assertions that the documents sought were not legitimately generated as part of
the peer-review process and, therefore, were not entitled to the statutory
privilege and, in addition, that they are material and necessary to the
prosecution of her action . . . The Supreme Court should have conducted an in
camera inspection of the documents responsive to the plaintiff's request to
enable it to determine which of the documents, or portions thereof, if any, are
entitled to the statutory privileges . . . (citations omitted).”
Chardavoyne v Cohen, supra at 509.
. “The Supreme Court properly directed
the defendant . . . Hospital to submit to the court the documents set forth in
the Hospital's privilege log for in camera inspection in order to assist the
court in determining whether the documents in fact are privileged under
Education Law § 6527(3) and Public Health Law § 2805-m . . .
). After conducting an in camera inspection of the
documents, the Supreme Court properly concluded that the documents are
privileged. Upon this Court’s review of the documents, it is clear that
each was prepared in connection with a quality assurance review function and/or
a malpractice prevention program of the Hospital pursuant to Public Health Law
§ 2805-j, and/or as part of the Hospital's required incident reporting to
the Department of Health pursuant to Public Health Law § 2805-l. Thus, the
documents are exempt from disclosure under Education Law § 6527(3) and
Public Health Law § 2805-m . . . (citation omitted
Klingner v Mashioff