New York State Court of Claims

New York State Court of Claims

McCARTHY v. THE STATE OF NEW YORK, #2009-045-025, Claim No. 113700, Motion Nos. M-76394, CM-76695


Case Information

JAMES McCARTHY, as Executor of the Estate of SUSAN McCARTHY, deceased and JAMES McCARTHY, individually
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:
Pegalis & Erickson, LLCBy: Rhonda L. Meyer, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Alisa R. Lebensohn, AAG
Third-party defendant’s attorney:

Signature date:
October 20, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 hospital.

“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[1], to 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.

October 20, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].The Court of Appeals has stated that: “[W]e 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” (Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434, 442 [2003]).