Estate of Savage v. Kredentser

• Decision Date: 11 May 2017
• Citation: 150 A.D.3d 1452,55 N.Y.S.3d 484
• Parties: ESTATE OF Joyce SAVAGE et al., Appellants, v. Daniel C. KREDENTSER et al., Defendants, and St. Peter's Hospital Center of the City of Albany, Inc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1452

55 N.Y.S.3d 484

ESTATE OF Joyce SAVAGE et al., Appellants,

v.Daniel C. KREDENTSER et al., Defendants,andSt. Peter's Hospital Center of the City of Albany, Inc., et al., Respondents.

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

May 11, 2017.

Savage Law Group, PLLC, Beaufort, South Carolina (Denise L. Savage of counsel), for appellants.

Maguire Cardona, PC, Albany (Amanda Kuryluk of counsel), for respondents.

Before: PETERS, P.J., GARRY, DEVINE, MULVEY and AARONS, JJ.

PETERS, P.J.

Appeals (1) from that part of an order of the Supreme Court(Connolly, J.), entered June 1, 2016 in Albany County, which partially denied plaintiffs' motion to, among other things, compel the production of certain documents, and (2) from an order of said court, entered June 7, 2016 in Albany County, which, among other things, granted a cross motion by defendants St. Peter's Hospital Center of the City of Albany, Inc. and St. Peter's Nursing and Rehabilitation Center, Inc. for a protective order.

Plaintiffs commenced this medical malpractice action against defendants seeking damages for personal injuries and derivative losses allegedly sustained by Joyce Savage(hereinafter decedent) and plaintiffHoward Alvin Savage in connection with a debulking surgery performed by defendantDaniel C. Kredentser in August 2011.Plaintiffs alleged that, after undergoing said surgery and as a result of alleged complications associated with it, decedent experienced bleeding from her bladder and vaginal cavity, which, among other things, caused her to delay the commencement of her chemotherapy treatment by five months.After undergoing various treatment options, decedent died.

Plaintiffs' previous medical malpractice action against defendants was dismissed without prejudice.However, during the discovery phase of that action, defendants St. Peter's Hospital Center of the City of Albany, Inc. and St. Peter's Nursing and Rehabilitation Center, Inc.(hereinafter collectively referred to as defendants) responded to discovery demands and provided plaintiffs with, among other things, a two-page "Department Review Form"(hereinafter the report) dated November 23, 2011 as part of the hospital chart relating to the care and treatment of decedent.When responding to identical discovery demands in this action, defendants did not disclose the report.Plaintiffs thereafter demanded that defendants produce all documentation related to the report.Defendants countered that the report was privileged under Education Law § 6527(3)andPublic Health Law § 2805–m, and Supreme Court permitted defendants to submit a privilege log, which they filed in their second supplemental response to plaintiffs' discovery demands.Insofar as is relevant here, plaintiffs subsequently moved for an order compelling production of all documents related to the report, and defendants opposed the motion and cross-moved for a protective order.After conducting an in camera review of the report and hearing oral argument on the motions, Supreme Court determined that the report was privileged and issued a protective order precluding the discovery of all quality assurance reports and preventing plaintiffs from offering evidence of the report at trial.Plaintiffs appeal.

Education Law § 6527(3)andPublic Health Law § 2805–m protect from disclosure records relating to performance of a medical or quality assurance review function or participation in a medical malpractice prevention program (seeLogue v. Velez,92 N.Y.2d 13, 16–17, 677 N.Y.S.2d 6, 699 N.E.2d 365[1998];Daly v. Brunswick Nursing Home, Inc.,95 A.D.3d 1262, 1263, 945 N.Y.S.2d 181[2012];Powers v. Faxton Hosp.,23 A.D.3d 1105, 1106, 803 N.Y.S.2d 871[2005];Orner v. Mount Sinai Hosp.,305 A.D.2d 307, 310, 761 N.Y.S.2d 603[2003];see alsoKatherine F. v. State of New York,94 N.Y.2d 200, 203–205, 702 N.Y.S.2d 231, 723 N.E.2d 1016[1999] ).

The party asserting these statutory privileges bears the burden of establishing their applicability by demonstrating that a review procedure was in place and that the requested documents were prepared in accordance with such procedure (seeDicostanzo v. Schwed,146 A.D.3d 1044, 1046, 45 N.Y.S.3d 625[2017];Bluth v. Albany Med. Ctr.,132 A.D.3d 1131, 1132, 18 N.Y.S.3d 224[2015];Slayton v. Kolli,111 A.D.3d 1314, 1314, 974 N.Y.S.2d 831[2013];Stalker v. Abraham,69 A.D.3d 1172, 1173, 897 N.Y.S.2d 250[2010] ).

As a threshold matter, we reject plaintiffs' contention that defendants waived the report's privilege by providing it to them in the first action.The prior disclosure of the report was inadvertent, and defendants' failure to file a privilege log earlier and to timely move for a protective order, while not condoned, did not amount to "the intentional relinquishment of [a] known right"(Matter of Khan v. New York State Dept. of Health, 17 A.D.3d 938, 941, 794 N.Y.S.2d 145[2005];seeKinge v. State of New York,302 A.D.2d 667, 670, 754 N.Y.S.2d 717[2003];Little v. Hicks,236 A.D.2d 794, 795, 653 N.Y.S.2d 740[1997];McGlynn v. Grinberg,172 A.D.2d 960, 961, 568 N.Y.S.2d 481[1991] ).

Addressing the merits, we find that defendants failed to meet their burden of establishing the report's privilege.Defendants did not submit an affidavit or other information from anyone with first-hand knowledge establishing that a review procedure was in place or that the report was obtained or maintained in accordance with any such review procedure (seeKneisel v. QPH, Inc.,124 A.D.3d 729, 730, 2 N.Y.S.3d 195[2015];Slayton v. Kolli,111 A.D.3d at 1314–1315, 974 N.Y.S.2d 831;Matter of Coniber v. United Mem. Med. Ctr.,81 A.D.3d 1329, 1330, 916 N.Y.S.2d 398[2011];Kivlehan v. Waltner,36 A.D.3d 597, 598–599, 827 N.Y.S.2d 290[2007];compareMatter of Subpoena Duces Tecum to Jane Doe,99 N.Y.2d 434, 441–442, 757 N.Y.S.2d 507, 787 N.E.2d 618[2003];Dicostanzo v. Schwed,146 A.D.3d at 1046, 45 N.Y.S.3d 625;Stalker v. Abraham,69 A.D.3d at 1173–1174, 897 N.Y.S.2d 250 ).Nevertheless, defendants argue that the face and content of the report clearly establish that it is a quality assurance review which is precluded from disclosure.Yet, nothing in the report reflects that the hospital's Department of Patient Safety and Quality Improvement ever reviewed it (seeBush v. Dolan,149 A.D.2d 799, 800–801, 540 N.Y.S.2d 21[1989] ).¹Further, the report's conclusory statement that it was prepared for quality assurance purposes and was shielded by the subject statute...