Little v. Hicks

• Decision Date: 07 February 1997
• Citation: 653 N.Y.S.2d 740,236 A.D.2d 794
• Parties: April LITTLE, Individually and as Parent and Natural Guardian of Ryan Colin Little, an Infant, Appellant, v. William J. HICKS, M.D., and Highland Hospital of Rochester, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 740

653 N.Y.S.2d 740

236 A.D.2d 794

April LITTLE, Individually and as Parent and NaturalGuardian of Ryan Colin Little, an Infant, Appellant, v.William J. HICKS, M.D., and Highland Hospital of RochesterRespondents.

Supreme Court, Appellate Division Fourth Department.

Feb. 7, 1997.

Bernstein and Bernstein by Richard Bernstein, Rochester, for Appellant.

Osborn, Reed, Burke & Tobin, LLP(Thomas C. Burke, of counsel), Rochester, for Highland Hospital.

Hirsch & Tubiolo by Richard Tubiolo, Rochester, for William Hicks, M.D.

Before DENMAN, P.J., and GREEN, PINE, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

Plaintiff commenced this action for medical malpractice against defendants, William J. Hicks, M.D., and Highland Hospital of Rochester (Highland).Plaintiff alleges that Hicks was negligent in the delivery of her son and that, because it had notice of Hicks's "significant problems" in delivery procedures, Highland was negligent in permitting Hicks to maintain staff privileges and in failing to monitor Hicks during deliveries performed by him at the hospital.In the course of discovery, plaintiff's attorney became aware of four letters that had been sent by Highland to Hicks.After plaintiff's attorney served a notice to produce the letters, Hicks's counsel submitted them to Supreme Court for in camera review to determine whether they were privileged under Education Law § 6527(3).Highland moved for a protective order on the ground that the letters were privileged under Education Law § 6527(3).In an affidavit, Highland's Director of Quality Management averred that the four letters were records relating to the performance of Highland's medical and quality assurance review function, malpractice prevention programs, and the evaluation and improvement of the quality of care rendered in the hospital.The court granted the protective order.We affirm.

Education Law § 6527(3) provides in relevant part that "[n]either 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 * * * shall be subject to disclosure under article thirty-one of the civil practice law and rules."The protection encompassed within Education Law § 6527(3) is intended to "provid[e] confidentiality in order to encourage peer review"(Lilly v. Turecki, 112 A.D.2d 788, 789, 492 N.Y.S.2d 286) and to "encourag[e] frank and open discussion in evaluating personnel, treatment and procedures designed to improve health care and eliminate malpractice"(Matter of Albany Med. Ctr. Hosp. v. Denis, 161 A.D.2d 1030, 557 N.Y.S.2d 523).The four letters were written in connection with the performance of Highland's medical and quality assurance review function.Thus, they come within the statutory prohibition against disclosure (see, Education Law § 6527[3];Crea v. Newfane Inter-Community Mem. Hosp., 224 A.D.2d 976, 637 N.Y.S.2d 843;McGlynn v. Grinberg, 172 A.D.2d 960, 568 N.Y.S.2d 481;Parker v. St. Clare's Hosp., 159 A.D.2d 919, 553 N.Y.S.2d 533).

The contention of plaintiff that Highland may not assert that the letters are privileged because Hicks rather than Highland possesses them is without merit.Whether a record is privileged under the Education Law turns upon its...