| Stalker v Abraham |
| 2010 NY Slip Op 00431 [69 AD3d 1172] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Susan Stalker, Appellant, v Akiva Abraham et al.,Defendants, and Samaritan Hospital, Respondent. |
—[*1] Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (William C. Firth of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered October 21,2008 in Saratoga County, which, among other things, granted the cross motion of defendantSamaritan Hospital for a protective order.
Plaintiff commenced this medical malpractice action against defendant Akiva Abrahambased, in part, on procedures Abraham performed at defendant Samaritan Hospital (hereinafterdefendant). Plaintiff alleged that defendant knew or should have known that Abraham wasincompetent and unfit to practice medicine and nevertheless allowed him to continue performingservices at its facility. Plaintiff moved to compel testimony from defendant's representativeregarding defendant's staff physician certification process generally and regarding defendant'sdecisions to certify and recertify Abraham in particular. Supreme Court granted defendant's crossmotion for a protective order on the basis that the information was confidential and notdiscoverable. Plaintiff appeals.
Defendant invoked the statutory prohibitions on disclosure contained in Education Law§ 6527 (3) and Public Health Law § 2805-m. These provisions safeguardinformation collected as part of a medical review committee's periodic assessment of physicians'credentials and competence in order to encourage frank and objective discussion during thecredentialing process (see Logue v Velez, 92 NY2d 13, 17 [1998]). The Education Lawexpressly precludes a plaintiff from questioning deponents with respect to the proceedings of ahospital's credentials committee, which performs "a 'medical review function' within themeaning of section 6527" (Larsson v Mithallal, 72 AD2d 806 [1979]). "Public HealthLaw § 2805-m confers complete confidentiality on information gathered by a hospital inaccordance with Public Health Law §§ 2805-j and 2805-k, expressly exempting itfrom disclosure under CPLR article 31" (Logue v Velez, 92 NY2d at 17 [citationomitted]). The party asserting the Education Law privilege bears the burden of establishing itsapplicability (see Kivlehan vWaltner, 36 AD3d 597, 598 [2007]). "In order to assert the privilege, '[a] hospital isrequired, at a minimum, to show that it has a review procedure and that the information forwhich the exemption is claimed was obtained or maintained in accordance with that reviewprocedure' " (id. at 599, quoting Bush v Dolan, 149 AD2d 799, 800-801 [1989])."In the absence of a properly asserted privilege, any 'knowledge the hospital may have hadregarding [a staff physician's] alleged incompetence is . . . relevant and subject todisclosure,' where, as here, the plaintiff[ ] contend[s] that the defendant hospital was negligent ingranting privileges to the defendant [physician]" (Van Caloen v Poglinco, 214 AD2d555, 557 [1995], quoting Byork v Carmer, 109 AD2d 1087, 1088 [1985]).
Defendant submitted a detailed affidavit from Christie Harris, its medical staff credentialingspecialist, who stated that she was familiar with defendant's records and procedures with respectto credentialing. She described the information that Abraham was required to submit for hisinitial credentialing and subsequent biannual recredentialing, and she stated that "[t]he only way[defendant] would be permitted to obtain such information . . . would be throughthe credentialing process." She explained the steps that defendant takes to independentlyascertain whether a physician has provided full and complete information in applying forprivileges, and affirmed that such steps had not revealed any issues with respect to medical careand treatment provided by Abraham. Harris noted that defendant monitors the quality of careprovided by physicians to whom it has issued privileges, and the legal obligation defendant hasto report any incidents involving such physicians to the Department of Health. She described therole of defendant's credentialing committee in reviewing an applicant's information and in anydisciplinary action taken, including any restriction of privileges. Harris stated that the solepurpose for the credentialing process was to comply with legal requirements mandating thathospitals have a mechanism in place to prevent medical malpractice. She noted that defendantwould only become aware of a malpractice claim against a physician through the credentialingprocess. Finally, Harris stated that all of the information sought by plaintiff was "gatheredthrough the peer review, credentialing and quality assurance processes" and that defendant reliedon the statutory privileges against disclosure of that information in conducting internalinvestigations and maintaining the effectiveness of its statutorily required medical malpracticeprevention program.
We agree with Supreme Court that defendant adequately invoked the privileges againstdisclosure contained in the Education Law and the Public Health Law. To be sure, "[t]here aremany ways in which [defendant] might have acquired knowledge of . . . allegedprior negligence of [a] defendant doctor wholly apart from any review committee meeting. Suchinformation is discoverable by [the] plaintiff as is information as to whether, armed with suchknowledge, the hospital took any action to limit staff privileges extended to [a defendantdoctor]" (Byork v Carmer, 109 AD2d at 1088; see Megrelishvili v Our Lady ofMercy Med. Ctr., 291 AD2d 18, 24-26 [2002], lv dismissed 99 NY2d 532 [2002];Bryant v Bui, 265 AD2d 848, 849 [1999]). However, "[t]he legislative policy ofproviding confidentiality in order to encourage peer review outweighs [a] plaintiff['s] need forevidence in order to prove [a] cause of action. A hospital's knowledge of a physician's negligencemay be provable without reference to medical review proceedings" (Lilly v Turecki, 112AD2d 788, 789 [1985], citing Byork v Carmer, 109 AD2d at 1088; see Zion v NewYork Hosp., 183 AD2d 386, 389 [1992]). Indeed, plaintiff has already discovered evidencefrom public sources that she claims evince defendant's prior awareness of Abraham's allegedincompetence. Now, however, plaintiff is specifically seeking deposition testimony regarding thevery information to which the statutory privilege applies. "[I]nformation which is privileged isnot subject to disclosure no matter how strong the showing of need or relevancy" (Lilly vTurecki, 112 AD2d at 789; seeSmith v Delago, 2 AD3d 1259, 1260 [2003]). Accordingly, we perceive no abuse ofdiscretion in granting the protective order.
Spain, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.