The following papers numbered 1 to 22 were read on the motion by plaintiff for an order compelling defendants to provide a copy of the incident/accident reports identified in item three of defendants’ supplemental response to plaintiff’s notice to produce and the annexed privilege log, and for such other and further relief as this Court deems just and proper. PAPERS NUMBERED Notice of Motion / Affirmation of Good Faith / Affirmation in Support /Exhibits / Affidavit of Service 1-17 Affirmation in Opposition / Exhibits 18-20 Affirmation in Reply / Affidavit of Service 21-22 DECISION AND ORDER Plaintiff seeks to recover damages for injuries allegedly sustained on March 23, 2021 when she sat in a wheelchair at defendant hospital. It is alleged that defendants failed to ensure plaintiff was provided a safe wheelchair, failed to properly open and lock the wheelchair for plaintiff to sit in, and failed to properly supervise and assist plaintiff when she was sitting in the wheelchair, causing plaintiff to sustain injuries. It is alleged that defendants instructed and permitted plaintiff to sit in a wheelchair that was not opened or was not locked. Plaintiff asserts claims sounding in negligence, negligent hiring, negligent training, and negligent supervision (NYSCEF Doc. #1). Plaintiff served a notice to produce dated July 30, 2021 seeking, in relevant part, accident reports, incident reports and/or any other reports that were completed with respect to the alleged incident (Plaintiff’s Exhibit 1, p. 6, 8, demands 3, 32, 33). In defendants’ supplemental response to plaintiff’s notice to produce, defendants objected to providing the documents sought, asserting in part that the documents are privileged quality assurance documents pursuant to Public Health Law §2805-j (Plaintiff’s Exhibit 6, p. 2). Plaintiff now seeks an order compelling defendants to exchange the documents at issue, arguing defendants cannot meet their burden of showing that the subject reports are privileged. Plaintiff argues that this case does not arise out of any alleged negligent medical care or treatment of the plaintiff and the reports do not assess the care and treatment rendered to plaintiff, but merely report an incident that occurred (Perecman’s Affirmation in Support, p. 4, 7). Furthermore, plaintiff asserts that one of the reports was created at the request of plaintiff (Perecman’s Affirmation in Support, p. 1). Plaintiff submits an affidavit stating that shortly after the incident and while she was still in the hospital, she spoke to the floor supervisor in the emergency room and made formal report of the incident (Plaintiff’s Exhibit 11). In opposition, defendants contend that plaintiff was examined by a physician in the Emergency Department, who ordered an x-ray of the left foot. Defendants argue that radiology technologist Ralph Donato was to take plaintiff to obtain the x-ray and it was during this transfer that plaintiff was allegedly injured (Accumanno’s Affirmation in Opposition, p. 2). Defendants provided a privilege log dated April 6, 2022, asserting occurrence reports were created by Kathleen Rosa, R.N. and Ralph Donato on March 23, 2021 regarding an incident involving the plaintiff. The privilege log states the reports were generated pursuant to the defendant hospital’s reporting procedure at the behest of the hospital’s Patient Safety and Risk Management Department (Defendants’ Exhibit A). Defendants object to the production of the occurrence reports prepared in connection with this case, asserting the reports are privileged pursuant to Education Law §6527(3) and Public Health Law §§2805-j, 2805-l, and 2805-m. Alternatively, defendants request that the reports be reviewed by the Court in camera to determine whether the materials are privileged. The quality assurance privilege set forth in Education Law §6527(3) shields from disclosure the proceedings and records related to performing either a medical review or quality assurance review function, records related to participation in a medical malpractice prevention program, and any adverse event report required by the Department of Health pursuant to Public Health Law §2805-l. Similarly, Public Health Law §2805-m(2) shields from disclosure records, documentation or committee actions or records required pursuant to Public Health Law §2805-j (Hernandez v. City of New York, 207 AD3d 450 [2d Dept 2022]; Daly v. Brunswick Nursing Home, Inc., 95 AD3d 1262 [2d Dept 2012]; Leardi v. Lutheran Med. Ctr., 67 AD3d 651 [2d Dept 2009]). Public Health Law §2805-j requires each hospital to maintain a coordinated program for the identification and prevention of medical, dental and podiatric malpractice, which shall include, inter alia, the establishment of a quality assurance committee with the responsibility to review the services rendered in the hospital in order to improve the quality of care and to prevent medical malpractice; and a procedure for the prompt resolution of grievances related to accidents, injuries, treatment and other events that may result in claims of medical malpractice (Public Health Law §2805-j[1][a], [d]). This Court notes that the statutory requirements imposed on hospitals under Public Health Law §2805-j extend beyond the coordination of a medical malpractice prevention program to include other quality assurance functions, including the maintenance and continuous collection of information concerning the hospital’s experience with incidents injuries to patients, patient grievances, professional liability premiums, and costs related to patient injury prevention and safety improvement activities (Public Health Law §2805-j[1][e]). Contrary to plaintiff’s contentions, the quality assurance privilege is not limited to medical malpractice actions, but may also apply to ordinary negligence claims against hospitals (see Creekmore v. PSCH, Inc., 2008 NY Slip Op 30585 [U] (Sup Ct, New York County 2008), citing Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434 [2003]). A party seeking to assert the quality assurance privilege bears the burden of demonstrating that the documents demanded were prepared in accordance with the relevant statutes (Daly, 95 AD3d at 1262); Kivlehan v. Waltner, 36 AD3d 597 [2d Dept 2007]; Marte v. Brooklyn Hosp. Ctr., 9 AD3d 41 [2d Dept 2004]). The party is required to demonstrate that it has a quality assurance review procedure and that the information claimed to be privileged was obtained or maintained in accordance with that quality assurance review procedure (Hernandez, 207 AD3d at 450; Ramos v. Lopez, 2018 NY Slip Op 33458[U] [Sup Ct, Westchester County 2018], citing Kivlehan, 36 AD3d at 597). The privilege attaches to the work product of a hospital’s quality assurance committee (Donato v. Nutovits, 2017 NY Slip Op 32034[U] (Sup Ct, Westchester County 2017), citing Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d at 434). Records generated by or at the behest of a quality assurance committee for quality assurance purposes are privileged. Documents simply duplicated by the quality assurance committee are not necessarily privileged (Kivlehan, 36 AD3d at 597; Marte, 9 AD3d at 41). “The purpose of the discovery exclusion is to enhance the objectivity of the review process and to assure that medical review committees may frankly and objectively analyze the quality of health services rendered by hospitals” (Logue v. Velez, 92 NY2d 13 [1998][internal quotations and citation omitted]). Defendants submit an affidavit by Dympna Kennedy, Assistant Vice President of Performance Improvement at St. John’s Riverside Hosptial. Performance Improvement is responsible for quality assurance at the hospital and Ms. Kennedy is involved in overseeing quality assurance activities on a day to day basis (Defendants’ Exhibit B, p. 1). She states that the hospital also maintained a quality assurance committee in accordance with the New York State statutes. She avers that the activities of the quality assurance committee at the hospital during the time frame at issue included, in relevant part, the review of care provided by doctors, nurses, and staff employed by or associated with the hospital, and the review of medical records, incidents, and staff suggestions regarding patient care and safety. Ms. Kennedy states that to the extent that plaintiff may have been injured at the hospital on March 23, 2021, the investigation and preparation of a report of such incident would have been the responsibility of the quality assurance committee at the hospital (Defendants’ Exhibit B, p. 2). Ms. Kennedy states that “[t]he documents referred to in the privilege log…were based on information collected and maintained as part of the Quality Assurance purpose of the hospital and are examples of documentation that Performance Improvement, in its role of providing quality assurance at St. John’s Riverside Hospital, generated as part of its usual custom and practice so that Performance Improvement has readily available chronological and contemporaneous summaries of adverse events (Defendants’ Exhibit B, p. 3). Defendants demonstrate that the hospital has a quality assurance review process and the documents at issue were generated by or at the behest of the hospital’s quality assurance committee for a quality assurance purpose (see Bennett v. Stybel, 59 AD3d 652 [2d Dept 2009][finding incident reports prepared by defendant hospital relating to the incident at issue were privileged]; LaPierre v. Jewish Bd. of Family & Children Servs., Inc., 47 AD3d 896 [2d Dept 2008][finding defendant sustained its burden of demonstrating the documents sought wer prepared in accordance with the relevant statutes]). Ms. Kennedy’s detailed affidavit states the investigation and preparation of a report of such incident would have been the responsibility of the quality assurance committee at the hospital. She also states the documents were based on information collected and maintained as part of a quality assurance purpose and generated as part of a custom and practice to have readily available chronological and contemporaneous summaries of adverse events (Defendants’ Exhibit B, p. 3). Ms. Kennedy’s affidavit is sufficient to demonstrate the subject documents were generated by or at the behest of the quality assurance committee for a quality assurance purpose (see Kivlehan, 36 AD3d at 597; Marte, 9 AD3d at 41). With respect to the two documents noted in defendants’ privilege log, the Court finds they are protected from disclosure as privileged quality assurance material (see Defendant’s Exhibit A; Education Law §6527[3]; Public Heath Law §§2805-j[1] and 2805-m[2]). Insofar as the parties’ additional contentions are not specifically addressed herein, these contentions have been considered and are without merit. Accordingly, it is hereby ORDERED that plaintiff’s motion to compel defendants to provide a copy of the incident/accident reports identified in defendants’ privilege log is denied; and it is further ORDERED that all parties are directed to appear for a virtual compliance conference on September 23, 2022 at 10:30 a.m. via Teams subject to confirmation by the Teams link to be sent by the Part; and it is further ORDERED that within ten days of the date hereof, defendants shall serve a copy of this Decision and Order with notice of entry upon all parties and file proof of service on NYSCEF. The foregoing constitutes the Decision and Order of the Court. Dated: September 16, 2022
