Within the last month, the Appellate Division, Second Department created a new paradigm with respect to the discovery of quality assurance materials in the course of medical malpractice litigation. On Dec. 22, 2021, the court decided Siegel v. Snyder, ___ NYS 3d ___, 2021 NY Slip Opinion 07264, which broadly expands discovery of quality assurance documents and statements despite the clear statutory prohibitions of §6527 of the Education Law and §2805-m(2) of the Public Health Law. Before this error is corrected by the legislature or the Court of Appeals, it should be expected that there will be considerable activity in this area of discovery for pending malpractice cases.

The underlying facts are simple enough, involving a patient who died following admission through the emergency room after he was struck by a car and sustained a brain injury. Within several months after the patient's treatment in 2015, the quality of the care provided was reviewed at three meetings of the hospital's Trauma Peer Review Committee, whose activities the court described as having been in accordance with the relevant statutes. A lawsuit by the decedent's estate followed in 2016, and discovery of the minutes of the peer review committee was demanded in the course of discovery. The institutional defendants sought a protective order based upon the verbatim prohibition of discovery contained in both statutes, and offered a redacted version of the minutes consistent with their interpretation of what was discoverable. The Supreme Court, following in camera inspection of the unredacted minutes, ordered a much broader disclosure of their content, which resulted in the issue being presented to the Appellate Division.