The New York Supreme Court, Warren County recently issued a ruling precluding from disclosure a hospital’s quality assurance review investigation file and the deposition of its Director of Risk Management under the statutory privileges found in Education Law § 6527(3) and Public Health law § 2805-m.
In Bovee v. Champlain Valley Physicians Hospital Medical Center, plaintiff-decedent sued defendant-hospital for failure to provide appropriate care after the results of an abnormal EKG test were not shared with plaintiff-decedent. See 56-1-2015-0397, at *2 (N.Y. Sup. Ct. Warren Cty. August 14, 2017). Plaintiff-decedent returned to the emergency room a few months later and underwent a cardiac catheterization which was unsuccessful, and plaintiff-decedent ultimately died. After plaintiff-decedent’s wife, plaintiff Lisa Bovee, raised concerns about her husband’s care during a meeting with the hospital’s Director of Risk Management, an investigation was conducted by the hospital’s quality assurance review team. During discovery, plaintiff requested the investigation file and the deposition of the Director. In response, the hospital moved for a protective order precluding disclosure of the investigation file and production of the Director for deposition by asserting the statutory privileges found in Education Law § 6527(3) and Public Health law § 2805-m.
After an in camera review of the investigation file, and a affidavit from the Director detailing the duties as Director of Risk Management and attaching copies of the hospital’s Risk Management Program and Integrated Performance Improvement Plan, Justice Robert Muller determined the file and the deposition were confidential under Education Law § 6527(3) and Public Health law § 2805-m, and thus not discoverable. Justice Muller found that “the file was created and maintained in strict conformance with [the hospital’s] review procedures”, and therefore granted defendants’ request barring plaintiff from deposing the Director and obtaining the investigation file. Similarly, the plaintiff-decedent’s primary care physician moved to compel the production of any notes of records created to memorialize the meeting between the Director and plaintiff Bovee. Justice Muller determined that this meeting did not precede the quality assurance review team’s investigation, but rather was the first step in the investigation. Therefore, any documentation from the meeting was also confidential under Education Law § 6527(3) and Public Health law § 2805-m, and not discoverable.
Justice Muller’s ruling should serve as an important reminder that the statutory privileges available to protect hospitals from disclosing confidential materials and information during discovery include preventing the depositions of personnel engaged in risk management functions.