New York State Court of Claims

New York State Court of Claims

LYNCH v. THE STATE OF NEW YORK, #2009-030-532, Claim No. 113645, Motion No. M-76297


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 guidelines.

Case Information

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.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 6, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion to compel


1,2 Notice of Motion, Affirmation in Support by Steven Gold, attorney for claimants

  1. Affirmation in Opposition by Cheryl Rameau, Assistant Attorney General and attached exhibits
  1. Reply Affirmation by Steven Gold
  1. 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[3]. 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 - 47.

The court remanded the matter to the trial court for in camera review, directing that

“. . . 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 said:
“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);[2]Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135 (2d Dept 2007);[3] see also Chardavoyne v Cohen, 56 AD3d 508 (2d Dept 2008).[4] 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 2008).[5]

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 Health.

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 frame.

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
White Plains, New York

Judge of the Court of Claims

[2]. 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.
[3]. 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., supra at 1136 )

[4]. 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.
[5]. “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 . . . (citations omitted). 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, supra at 747.