The following papers were read and considered by the Court on these motions:
Claimant’s Notice of Motion, Affirmation in Support with Annexed Exhibits
A-N, Defendant’s Notice of Cross-Motion, Affirmation in Support of
Cross-Motion and in Opposition to Claimant’s Motion with Annexed Exhibits
A-H; Claimant’s Affirmation in Opposition to Cross-Motion with Annexed
Exhibits A-E and Defendant’s Reply Affirmation.
Claimant moves this Court for an order compelling, defendant, the State of New
York, to provide copies of any incident reports and any Infection Control
documents pertaining to the care of the decedent. Claimant also seeks any
reports pertaining to the testing for contamination regarding decedent. In the
alternative, claimant seeks an order compelling production of the documents for
an in camera review. Defendant opposes the motion and moves for a
protective order pursuant to CPLR 3103(a).
Briefly, the underlying wrongful death action sounds in medical malpractice and
concerns the allegedly negligent medical care and treatment rendered to decedent
at the Stony Brook University Hospital during a course of treatment beginning on
June 7, 2006 and continuing through July 31, 2006. Claimant contends, inter
alia, that the negligent medical treatment led to an infection which caused
decedent’s death on July 31, 2006.
Claimant initially sought production of numerous documents demanded throughout
the discovery process in this matter. However, in response to this motion,
defendant has apparently exchanged all the outstanding documents requested by
claimant with the one exception of producing a computer log entry known as a
Patient Safety Net (PSN). Consequently, claimant now requests that the Court
review the PSN to determine if any portion of the report is privileged.
Defendant argues that the PSN is a privileged confidential electronic tool used
for quality assurance improvement under the directives of PHL 2805 j, k, l, m
and Education Law 6527. Defendant contends that as a result the PSN log is not
discoverable. In support of its position, defendant presented the Affirmation
of William Greene, M.D., the Chief Quality Officer at the Stony Brook University
Hospital. Dr. Greene explained that, inter alia, the PSN is an
electronic reporting system used exclusively for the purpose of carrying out the
quality assurance, patient safety and quality improvement initiatives of the
“Pursuant to Education Law § 6527 (3), certain documents generated
in connection with the ‘performance of a medical or quality assurance
review function,’ or which are ‘required by the department of health
pursuant to’ Public Health Law § 2805-l, are generally not
discoverable” (Fray v Fulton Commons Care Ctr., Inc., 51 AD3d 968,
969 [2d Dept 2008]; see also Ross v Northern Westchester Hosp. Assn., 43
AD3d 1135 [2d Dept 2007]). Defendant, as the party seeking to invoke the
privilege, has the burden of demonstrating that the documents sought were
prepared in accordance with the relevant statutes (Ross v Northern
Westchester Hosp. Assn., 43 AD3d 1135, 1136 [2d Dept 2007]; Marte v
Brooklyn Hosp. Ctr., 9 AD3d 41, 46 [2d Dept 2004]). At this juncture the
Court finds that defendant has not sustained its burden of demonstrating that
the entire PSN log for this incident was prepared in accordance with the
relevant statutes alone.
Therefore, for the foregoing reasons, defendant is directed to submit to the
court the PSN entries related to the underlying incident for an in camera
review, together with its privilege log
the extent it exists, within 45 days of the date this Decision and Order is
filed in the Office of the Clerk of the Court of Claims.
After the in camera review the Court will determine which portions, if
any, are subject to disclosure and direct defendant accordingly.