Daly v. Brunswick Nursing Home, Inc.

• Decision Date: 30 May 2012
• Citation: 2012 N.Y. Slip Op. 04124,945 N.Y.S.2d 181,95 A.D.3d 1262
• Parties: Maryanne DALY, respondent, v. BRUNSWICK NURSING HOME, INC., appellant.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1262

945 N.Y.S.2d 181

2012 N.Y. Slip Op. 04124

Maryanne DALY, respondent,

v.BRUNSWICK NURSING HOME, INC., appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 30, 2012.

Law Office of Anthony P. Vardaro, P.C., Smithtown, N.Y. (Rosemary E. Martinson of counsel), for appellant.

Rosato & Lucciola, P.C., New York, N.Y. (Paul A. Marber of counsel), for respondent.

ANITA R. FLORIO, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), entered December 10, 2010, which granted the plaintiff's motion to compel disclosure of an incident report prepared by the defendant relating to an incident which occurred on March 31, 2007, and denied its cross motion for a protective order regarding such report.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for an in camera inspection of the incident report prepared by the defendant relating to the incident which occurred on March 31, 2007, to be supplied by the defendant, and thereafter a new determination of the plaintiff's motion to compel disclosure of the report and the defendant's cross motion for a protective order regarding such report.

On March 31, 2007, the plaintiff allegedly was injured when she fell out of a hospital bed while she was a patient in the defendant's care. During the course of discovery proceedings, the plaintiff sought the production of, among other items, “the accident report, pertaining to plaintiff's fall on March 31, 2007, prepared by a nurse in accordance with policy and procedure (as testified to by Lorraine Wedderburn at deposition on February 9, 2010).” The defendant claimed that the only report in its possession relating to the subject incident was privileged under Education Law § 6527(3) and Public Health Law § 2805–m. The Supreme Court granted the plaintiff's motion to compel disclosure of the report and denied the defendant's cross motion for a protective order exempting the report from disclosure.

The “quality assurance privilege” set forth in Education Law § 6527(3) shields from disclosure certain records and reports generated by a hospital in performing either a medical malpractice or quality assurance review ( see Logue v. Velez, 92 N.Y.2d 13, 15–17, 677 N.Y.S.2d 6, 699 N.E.2d 365). The statute confers confidentiality on three categories of documents: records relating to the performance of medical review and quality assurance functions; records reflecting “participation in a medical and dental malpractice prevention program”; and reports required by the New York State Department of Health (hereinafter the DOH) pursuant to Public Health Law § 2805– l(Education Law § 6527[3]; see Katherine F. v. State of New York, 94 N.Y.2d 200, 204, 702 N.Y.S.2d 231, 723 N.E.2d 1016). The party seeking to invoke the privilege has the burden of demonstrating that the document sought was prepared in accordance with the relevant statutes ( see Ross v. Northern Westchester Hosp. Assn., 43...