Johnston v. Hillis
| Decision Date | 08 May 2019 |
| Docket Number | 150897 |
| Citation | 64 Misc.3d 208,101 N.Y.S.3d 557 |
| Parties | Nicole JOHNSTON, Individually and as Mother and Natural Guardian of A.S., an infant, Plaintiff, v. Barbara D. HILLIS, C.N.M.; Jeffrey Greenberg, M.D.; Massena Memorial Hospital d/b/a North Country Women's Health; and Massena Memorial Hospital, Defendants. |
| Court | New York Supreme Court |
Bottar Law, PLLC (Michael A. Bottar, Esq., of counsel), attorney for Plaintiff;
Martin, Ganotis, Brown, Mould & Currie, P.C. (Charles E. Patton, Esq., of counsel), attorney for Defendants.
During the course of the examination before trial of Defendant Barbara D. Hillis, C.N.M. ("Hillis"), counsel for Plaintiff Nicole Johnston ("Johnston"), as parent and natural guardian of A.S., an infant, asked Hillis whether she was present at a quality assurance meeting ("Meeting") held at Defendant Massena Memorial Hospital ("MMH") concerning the labor and delivery at issue in this medical malpractice action. After stating she did not remember what she said at the Meeting, Hillis then testified that another named defendant — treating physician Jeffrey Greenberg, M.D. ("Greenberg") — was also present and spoke at the Meeting. After Hillis testified she remembered what Defendant Greenberg said, Plaintiff's counsel then asked her to recount what Greenberg said. Defense counsel then objected based on the "quality assurance" privilege in NY Education Law § 6527 (3), and instructed Hillis not to answer. Plaintiff now moves for an Order directing a supplemental deposition of Hillis as to what Greenberg said at the Meeting about Johnston's labor and delivery. For the reasons which follow, the Court grants Plaintiff's motion.
In her Complaint [Ex. A to Bottar aff.], Plaintiff alleges that she was admitted to MMH on December 27, 2016, for induction of labor, and that A.S. was delivered by emergency cesarean section
later that day. Complaint at ¶¶ 18-19. She alleges Defendant Hillis was her treating nurse midwife, and Defendant Greenberg was her treating physician. Id. at ¶¶ 3, 6. Johnston further alleges that, as result of Defendants' alleged medical malpractice during the course of labor and delivery, A.S. sustained severe and permanent bodily injury, including brain damage. Id. at ¶ 28.
In her deposition, Hillis testified that she was present at the Meeting1 — which she described as a — "about the labor and delivery for Mrs. Johnston." Hillis EBT [Ex. B to Bottar aff.] at 99-100. After testifying she did not remember what she said at the Meeting, Hillis testified that Greenberg also spoke there. Id. at 100. When asked if she recalled what Greenberg said, Hillis initially responded: "I would rather if he spoke for himself." Id. at 101. After then testifying that she did remember what Geenberg said, the following colloquy then ensued:
Q.Okay. What did [Greenberg] say?
I don't think you're entitled to ask this [defendant] witness what she heard another person say, even if [the other person is] a defendant at that.
Defense counsel asserted he and Plaintiff's counsel had a "legitimate disagreement on the law," and acknowledged he "may well be incorrect." Id. at 102, 105. Id. at 108. Based on his interpretation, Defense counsel "claim[ed] privilege and instruct[ed Hillis] not to answer." Id. at 102, 105. Defense counsel stated the attorneys "need to work [the issue] out with the judge." Id. at 108. Hillis' deposition then concluded.
Counsel agree that the motion before the Court presents a single, discrete, issue: May one defendant in a medical malpractice action be compelled to testify about statements made by another defendant who was in attendance at a meeting covered by Education Law § 6527 (3) ? See Patton aff. at ¶ 5; Bottar Reply aff. at ¶ 6. Defense counsel acknowledges that, despite "significant review of the case law relating to the issue", he was not able to identify any decision which supported Plaintiff's position. Patton aff. at ¶ 5. In response, Plaintiff's counsel does not cite any case directly on point, pointing instead to Defendants' inability to "cite a single case stating that the inquiry at issue is prohibited." Bottar Reply aff. at ¶ 11. The Court's research has not found any decision specifically addressing the question at hand. Accordingly, the issue is one of first impression.
Both parties point to and rely upon the language of Education Law § 6527 (3) to support their respective, divergent positions. In pertinent part, this section provides:
Neither the proceedings nor the records relating to performance of a medical or a 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 section twenty-eight hundred five-l of the public health law described herein [ ] shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law. No person in attendance at a meeting when a medical or a quality assurance review or a medical and dental malpractice prevention program or an incident reporting function described herein was performed [ ] shall be required to testify as to what transpired thereat. The prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.
Id. (emphasis added); see also Public Health Law § 2805-m.
Plaintiff argues that the final sentence — "[t]he [ § 6527 (3) ] prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting" — expressly permits questioning of one defendant [Hillis] as to what another defendant [Greenberg] said at the Meeting. Bottar aff. at ¶¶ 16-17.
In response, counsel for Defendants asserts the final sentence of Education Law § 6527 (3) permits a defendant to testify only about what that defendant stated at such a meeting. Patton aff. at ¶ 5. According to Defendants, testimony by one defendant as to what any other defendant said at a Quality Assurance meeting remains privileged. Id. Defendants assert that Plaintiff's position calls for an unwarranted expansion of the exception to Education Law § 6527 (3)'s quality assurance privilege. Patton aff. at ¶ 12. Defendants further argue that Plaintiff's interpretation of Education Law § 6527 (3) runs contrary to the legislative intent behind that provision, and would both: (1) have a "chilling effect upon the willingness of physicians and medical providers to participate in [ ] Quality Assurance meetings"; and, (2) "would create an incentive for the plaintiff's bar to identify all attendees at Quality Assurance meetings and then name them as defendants to circumvent the protections afforded [ ] by the Education Law." Id. at ¶¶ 12, 13.
The rules and general policy of discovery in New York and the "quality assurance privilege" further different purposes. New York encourages "open and far-reaching pre-trial discovery." Kavanagh v. Ogden Allied Maintenance Corp. , 92 N.Y.2d 952, 954, 683 N.Y.S.2d 156, 705 N.E.2d 1197 (1998) (internal quotation marks and citation omitted). In pertinent part, NY C.P.L.R. § 3101 (a), titled "Scope of disclosure," "entitles parties to ‘full disclosure of all matter material and necessary in the prosecution or defense of an action.’ " Cascade Bldrs. Corp. v. Rugar , 154 A.D.3d 1152, 1154 (3d Dep't 2017) (emphasis added) (quoting § 3101 [a] ). "The words, ‘material and necessary’, are [ ] to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." Allen v. Crowell-Collier Publ. Co. , 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 (1968) ; accord : Galasso v. Cobleskill Stone Prods., Inc. , 169 A.D.3d 1344, 1345, 95 N.Y.S.3d 376 (3d Dep't 2019). "The statute [ C.P.L.R. § 3101 (a) ] embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise." Forman v. Henkin , 30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 (2018) (internal quotation marks and citation omitted).
Consistent with the policy favoring liberal discovery, Third Department law is clear: "In conducting depositions, questions should be freely permitted unless a question is clearly violative of a witness' constitutional rights, or of some privilege recognized in law, or is palpably irrelevant." Kaye v. Tee Bar Corp. , 151 A.D.3d 1530, 1531, 58 N.Y.S.3d 695 (3d Dep't 2017) (internal quotation marks and citations omitted). "All questions posed at depositions should be fully answered unless they invade a recognized privilege or are palpably irrelevant." Tardibuono v. County of Nassau , 181 A.D.2d 879, 881, 581 N.Y.S.2d 443 (2d Dep't 1992). This Court has broad discretion in supervising discovery. DiCostanzo v. Schwed , 146 A.D.3d 1044, 1045, 45 N.Y.S.3d 625 (3d Dep't 2017) (). "[A]bsent an abuse of discretion or unreasonable interference with the disclosure of relevant and necessary material [the Appellate Division] will not disturb [Supreme Court's] determinations with regard thereto." Czarnecki v. Welch , 23 A.D.3d 914, 914, 803 N.Y.S.2d 817 (3d Dep't ...
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