Marte v. Brooklyn Hosp. Ctr.

Marte v Brooklyn Hosp. Ctr.

2004 NYSlipOp 05212

Decided on June 14, 2004

Appellate Division, Second Department

Santucci, J.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2004

APPELLATE DIVISION : SECOND JUDICIAL DEPARMENT

FRED T. SANTUCCI, J.P.

GABRIEL M. KRAUSMAN

ROBERT W. SCHMIDT

REINALDO E. RIVERA, JJ.

2003-05653

APPEAL by the plaintiff in an action to recover damages for personal
injuries, from so much of an order of the Supreme Court (Randolf
Jackson, J.), dated April 30, 2003, and entered in Kings County, as
granted the defendant’s motion for a protective order with respect to
certain discovery demands.

Madeline Lee Bryer, P.C., New York, N.Y. (Jonathan I.
Edelstein of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP, White
Plains, N.Y. (Deborah J. Denenberg
of counsel), for respondent.

SANTUCCI, J.P.This appeal arises out of a dispute concerning the
extent of disclosure required by a hospital in a civil lawsuit which
stems from a physical attack upon one of its patients by an intruder.
To determine this issue we are called upon to examine the scope of the
disclosure exemption created by the interplay of two statutes: Public
Heath Law ? 2805-l and Education Law ? 6527(3). The former requires
hospitals to report to the Department of Health the death of or injury
to a patient other than that related to his or her illness, while the
latter provides that neither any “quality assurance review” record nor
any reports which are required to be filed under Public Health Law ?
2805-l shall be subject to disclosure under CPLR article 31. The
defendant Brooklyn Hospital Center (hereinafter the Hospital) moved for
a protective order contending that the interplay of these statutes
prohibits it from disclosing the material demanded by the plaintiff. In
opposition, the plaintiff argues that the material sought relates only
to the Hospital’s security function and, therefore, is not exempt from
disclosure. Based upon its interpretation of the above statutes, the
Supreme Court, inter alia, granted the Hospital’s motion for a
protective order.

[*2]

On
January 10, 2002, the plaintiff, Catiuska Marte (hereinafter the
plaintiff) was a patient in a room in a ward on the fourth floor of the
Caledonia Campus of the Hospital when the third-party defendant,
Ferdinand Santiago, entered the room through an open door and attempted
to sexually assault her. The plaintiff, alleging that Santiago was an
intruder upon the Hospital’s premises and that the Hospital provided
negligent security by allowing him to remain in a patient ward after
visiting hours had concluded, commenced this action against the
Hospital which, in turn, filed a third-party complaint against
Santiago.

Following commencement of the action, the plaintiff served a
notice for discovery and inspection listing various demands. In
response, the Hospital objected to the following demands, asserting,
inter alia, that the items were protected by a statutory privilege
“pursuant to Education Law ? 6527(3) and Public Health Law ? 2805-1 for
quality assurance by hospitals”:

3. . . . copies of any and all reports or memoranda made of the aforementioned occurrence, in the normal course of business.

5.
Names, addresses, captions and index numbers, of . . . legal
proceedings concerning and/or alleging the negligence of the defendants
regarding security of the premises . . . for a period of three years
prior to January 10, 2002.

6. Incident reports
and records of rape, attempted rape, sexual assault . . . and other
crimes which took place at [the premises] for a period of three years
prior to January 10, 2002.

7. Records of
complaints received by visitors concerning security of the premises for
a period of 3 years prior to January 10, 2002.

8.
Internal directives, memoranda, orders and the like concerning security
measures for the premises . . . for a period of three years prior to
January 10, 2002.

9. Copies of the Brooklyn
Hospital Center’s internal investigation, including but not limited to
incident reports, photos, interviews, and other records of the incident
and assault made in the regular course of business involving Catiuska
Marte which took place on January 10, 2002.

10. Statements, tapes, recordings, and records of any type of Catiuska Marte.

12.
Names and addresses of witnesses to the incident including but not
limited to patients at the ward, visitors, volunteers and/or employees.
For employees no longer employed, copies of their last known addresses.

15.
Records and logs of visitors to the Caledonian campus of BROOKLYN
HOSPITAL CENTER including but not limited to such relating to visitors
to the wards and to the fourth floor of the [*3]Caledonian campus of BROOKLYN HOSPITAL CENTER designated as 4C on the date in question.”

To
the extent that these demands sought disclosure of medical records of
“other patients and visitors,” the Hospital argued that under Public
Health Law ? 18 and CPLR 4504, it was prohibited from revealing such
information absent authorization from the individuals involved.

By order to show cause dated November 14, 2002, the Hospital moved
for a protective order with respect to the demands numbered 3, 5-10,
12, and 15. By order dated April 30, 2002, the Supreme Court granted
the Hospital’s motion, reasoning in part as follows:

“It is apparent that the Education Law ? 6527(3)
exempts three categories of documents from disclosure: records relating
to medical review and quality assurance functions; records reflecting
participation in a medical and dental malpractice prevention program;
and reports required by the Department of Health pursuant to Public
Health Law ? 2805-1, including incident reports prepared pursuant to
Mental Hygiene Law ? 29.29. See Katherine F. v State of New York, 94 NY2d 200.

“The Court of Appeals defined incident reports as ‘reports of accidents and injuries affecting patient health and welfare’. See Katherine F. supra. . . . [T]he reports of the attempted assault herein and the related material fall within the above category.”

The court did not address the Hospital’s claims of privilege under Public Health Law ? 18(6) and CPLR 4505.

On appeal, the plaintiff argues that the Education Law privilege
against disclosure is limited only to material generated for a peer
review or quality assurance purpose aimed at reducing incidents of
malpractice, and that the court improperly expanded the scope of the
privilege to include material which deals solely with a hospital’s
security functions.

Education Law ? 6527(3)
pertains to the practice of medicine. The statute covers the liability
of individuals who serve on medical review committees, such as
committees formed for the prevention of medical malpractice under
Public Health Law ? 2805-j, and persons who participate in the
preparation of incident reports required by the Department of Health
under Public Health Law ? 2805-l (see Education Law ? 6527[3][d] and [e]). The section states:

“[n]either the proceedings nor the records relating to
performance of a medical or quality assurance review function or
participation in a medical and dental malpractice prevention program
nor any report required by the department of health pursuant to [Public
Health Law ? 2805-l] . . . including the investigation of an incident
reported pursuant to [Mental Hygiene Law ? 29.29], shall be subject to
disclosure under [CPLR Article 31] except as hereinafter provided or as
provided by any other provision of law.”

Public Health
Law ? 2805 pertains to hospitals. Section 2805-l requires hospitals to
report certain incidents to the Department of Health. Among the
“reportable” incidents set forth are the following:

“2(a) patients’ deaths or impairments of bodily functions in circumstances [*4]other than those related to the natural course of illness, disease or proper treatment . . . ;

(b) fires in the hospital which disrupt the provision of patient care services or cause harm to patient or staff;

(c)
equipment malfunction during treatment or diagnosis of a patient which
did or could have adversely affected a patient or hospital personnel;

(d) poisoning occurring within the hospital;

(e) strikes by hospital staff;

(f) disasters or other emergency situations external to the hospital environment which affect hospital operations.

In
our opinion, the language of Public Health Law ? 2805-l, when examined
as a whole, including the expansive list of “reportable” incidents set
forth therein, leads to the conclusion that the Hospital would be
required to report the assault of the plaintiff “as an impairment to
the patient’s bodily functions in circumstances other than those
related to the natural course of [her] illness.” In this regard, we
note that in the Department of Health Notice of Adoption found in the
New York State Register (Vol. VII, Issue 39, p. 17 [Sept. 25, 1985]),
the stated legislative objective behind the Public Health Law
requirement that hospitals report incidents affecting patient welfare
was “to assure quality care to all patients in hospitals” by requiring
the “timely reporting of emergencies and other incidents that threaten
the safety of the patients or staff in a hospital.” It was further
noted that such legislation was necessary since “[o]n numerous
occasions, [the Department of Health’s Office of Health Systems
Management] ha[d] learned of emergencies or other situations that
threaten the safety and well-being of the patients or the staff in
hospitals, well after the emergency or incident occurred, or through
the news media.” Certainly, an alleged assault upon a patient is one of
these “other situations” which threatens the safety of patients and
staff, and would therefore be required to be reported.

In the case of Katherine F. v State of New York, 94 NY2d
200, 205, the Court of Appeals recognized that the Education Law ?
6527(3), by incorporating Public Health Law ? 2805-l, “require[s]
hospitals to report incidents that extend well beyond medical care and
treatment.” Therefore, the Hospital was required to investigate and
report the assault of the plaintiff to the Department of Health under
Public Health Law ? 2805-l.

However, the fact that the Hospital was required to report the
incident does not necessarily mean that it did so, or that all the
documents sought by the plaintiff are exempt from disclosure. It is the
burden of the entity seeking to invoke the privilege to establish that
the documents sought were prepared in accordance with the relevant
statutes (see Orner v Mount Sinai Hosp., 305 AD2d 307; Crawford v Lahiri, 250 AD2d 722; Van Caloen v Poglinco, 214
AD2d 555). 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). Moreover, some of
the documents demanded are not the type that would be subject to the
privilege, such as records of complaints made [*5]by
visitors, and the production of visitor logs. Accordingly, the Hospital
is not entitled to a blanket protective order with respect to the
demands set forth above.

On the other hand, the plaintiff was not entitled to all the
documents requested in her discovery demands. Many of the demands are
overbroad and seek records pertaining to a campus of the Hospital which
is not the subject of this litigation. In addition, in her brief on
appeal, the plaintiff has significantly circumscribed the scope of
numerous demands. In particular, the plaintiff limits demand number 8
to rules, regulations, and procedures concerning security measures that
were in place at the time of the incident, rather than the original
broad request for internal directives, memoranda, and orders for both
campuses of the Hospital for a three-year period preceding the
incident. Furthermore, the plaintiff now asserts that demand number 10
for “statements, tapes, recordings, and records of any type of [the
plaintiff]” merely seeks her own statement under CPLR 3101(e). This is
duplicative of demand number 1, which has not been challenged by the
Hospital. In addition, in demand number 15, the plaintiff originally
sought records and logs of visitors to the Hospital’s Caledonia campus
on the date of the incident, including the fourth floor ward, but now
asserts that the purpose of this demand is to establish the movements
of the assailant. Clearly, the document demand can be limited to
fulfill that purpose.

Furthermore, some of the demanded documents may, in fact, be
subject to privileges under Public Health Law ? 2805-l and Education
Law ? 6527(3) and/or under Public Health Law ? 18(6), which prevents
disclosure of third-party health records without authorization, and/or
CPLR 4505, the physician/patient privilege, and/or the Federal Health
Insurance Portability and Accountability Act of 1996 (hereinafter
HIPAA), colloquially known as the Patient Privacy Act. For example, if
the revelation of a patient’s location in a hospital would, by simple
deduction, also reveal that patient’s medical status, such discovery
would run afoul of CPLR 4505 and the intent behind HIPAA (see Gunn v Sound Shore Med. Ctr. of Westchester,5 AD3d 435).

Therefore, upon remand, 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, as well as CPLR 4505 and Public Health Law ?
18(6).

A recent decision by the Court of Appeals entitled Matter of Subpoena Duces Tecum to Doe, 99
NY2d 434, provides guidance regarding which records utilized by a
hospital quality assurance committee would be privileged and which
would be subject to disclosure. 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. The Court of Appeals also
stated:

“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.”

(Matter of Subpoena Duces Tecum to Doe, supra at 442).

Accordingly, we reverse the order insofar as appealed from, on
the law and in the exercise of discretion, deny the defendant’s motion,
and remit the matter to the Supreme Court, [*6]Kings County, for further proceedings consistent herewith.

KRAUSMAN, J.P., SCHMIDT and RIVERA, JJ., concur.

ORDERED that the order is reversed insofar as appealed from, on
the law and as a matter of discretion, with costs, the motion is
denied, and the matter is remitted to the Supreme Court, Kings County,
for further proceedings consistent herewith.

ENTER:

James Edward Pelzer

Clerk of the Court