| Lamacchia v Schwartz |
| 2012 NY Slip Op 02464 [94 AD3d 712] |
| April 3, 2012 |
| Appellate Division, Second Department |
| John Lamacchia, Individually and as Administrator of the Estate ofLinda Lamacchia, Deceased, Appellant, v Mark A. Schwartz, Defendant, and GoodSamaritan Hospital, Respondent. |
—[*1] Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville, N.Y. (Geoffrey H. Pforr ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from(1) an order of the Supreme Court, Suffolk County (Molia, J.), dated November 23, 2010, whichdenied his motion pursuant to CPLR 3124 to compel discovery of certain records and granted thecross motion of the defendant Good Samaritan Hospital pursuant to CPLR 3103 for a protectiveorder with respect to those records, and (2) an order of the same court dated April 6, 2011, whichdenied his motion for leave to renew and reargue.
Ordered that the order dated November 23, 2010, is modified, on the law, (1) by deleting theprovision thereof denying that branch of the plaintiff's motion which was to compel discovery ofa credentialing file maintained by the defendant Good Samaritan Hospital regarding thedefendant Mark A. Schwartz, and any separate written record of the administrative peer reviewhearing conducted by the defendant Good Samaritan Hospital which resulted in the revocation ofthe attending privileges of the defendant Mark A. Schwartz, and substituting therefor a provisiongranting that branch of the motion to the extent of directing the defendant Good SamaritanHospital to produce those records to the Supreme Court for an in camera review to determinewhether such records contain statements by the defendants regarding the subject matter of thisaction, and if so, for disclosure pursuant to Education Law § 6527 (3) and Public HealthLaw § 2805-m (2) of those portions of the records which contain such statements, and (2)by deleting the provision thereof granting that branch of the cross motion of the defendant GoodSamaritan Hospital which was for a protective order with respect to the aforementionedcredentialing file and any separate written record of the aforementioned administrative peerreview and substituting therefor a provision denying that branch of the cross motion to the extentof allowing the aforementioned in camera review and subsequent disclosure of those portions ofthe records, if any, which contain statements by the defendants regarding the subject matter ofthis action; as so modified, the order dated November 23, 2010, is affirmed, and the matter isremitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith; andit is further,
Ordered that the appeal from so much of the order dated April 6, 2011, as denied [*2]that branch of the plaintiff's motion which was for leave to reargueis dismissed, as no appeal lies from an order denying reargument (see Latopolski v Rudge, 35 AD3d390 [2006]); and it is further,
Ordered that the appeal from so much of the order dated April 6, 2011, as denied that branchof the plaintiff's motion which was for leave to renew that branch of his motion which was tocompel discovery of, and his opposition to that branch of cross motion of the defendant GoodSamaritan Hospital which was for a protective order with respect to, those portions of theaforementioned credentialing file and any separate written record of the aforementionedadministrative peer review, which contain statements by the defendants regarding the subjectmatter of this action, is dismissed as academic in light of the determination on the appeal fromthe order dated November 23, 2010; and it is further,
Ordered that the order dated April 6, 2011, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action against the defendants, Mark A. Schwartz (hereinafterSchwartz) and Good Samaritan Hospital (hereinafter the Hospital), alleging that, as a result of thedefendants' malpractice, his wife sustained a heart attack during a procedure to insert a deviceknown as a port-a-cath, which administers medication. The plaintiff alleged that the Hospitalnegligently allowed Schwartz to have attending privileges at the Hospital. The plaintiff alsoclaimed that, following an internal administrative peer review hearing conducted by the Hospitalafter the decedent died, the Hospital revoked Schwartz's attending privileges.
The plaintiff moved to compel discovery of the personnel and credentialing files which theHospital maintained regarding Schwartz. The Hospital cross-moved for a protective order toprevent such disclosure, arguing that it had no personnel file relating to Schwarz since he was notan employee, and that the credentialing file was protected from disclosure by statutory privilege.The Supreme Court denied the motion and granted the cross motion, concluding, inter alia, thatthe credentialing file was related to the Hospital's "quality assurance function and medicalmalpractice prevention" and, thus, was protected from disclosure pursuant to the Education Lawand the Public Health Law. The plaintiff thereafter moved for leave to renew and reargue, but theSupreme Court denied that relief.
Credentialing files "fall squarely within the materials that are made confidential by EducationLaw § 6527 (3) and article 28 of the Public Health Law" (Logue v Velez, 92 NY2d13, 18 [1998]; see Stalker vAbraham, 69 AD3d 1172, 1173 [2010]). However, both Education Law § 6527(3) and Public Health Law § 2805-m (2) contain identical exceptions for the discovery of "'statements made by any person in attendance at such a [quality control or medical malpractice]meeting who is a party to an action or proceeding the subject matter of which was reviewed atsuch meeting' " (Logue v Velez, 92 NY2d at 18, quoting Education Law § 6527[3]; Public Health Law § 2805-m [2]). "The evident purpose of this provision is to permitdiscovery of statements given by a physician or other health professional in the course of ahospital's review of the facts and circumstances of an earlier incident which had given rise to amalpractice action" (Logue v Velez, 92 NY2d at 18-19; see Swartzenberg vTrivedi, 189 AD2d 151, 153 [1993]). Here, the record suggests that such statements mayhave been made at the administrative peer review hearing conducted by the Hospital prior to itsrevocation of Schwartz's attending privileges, and that such statements are contained either in hiscredentialing file or in a separate written record of such review.
Accordingly, the Supreme Court should have granted that branch of the plaintiff's motionwhich was to compel discovery of the credentialing file maintained by the Hospital regardingSchwartz, and any separate written record of the administrative peer review hearing conducted bythe Hospital which resulted in the revocation of Schwartz's attending privileges, to the extent ofdirecting the Hospital to produce those records to the Supreme Court for an in camera review todetermine whether such records contain statements by the defendants regarding the subjectmatter of this action, and if so, for disclosure pursuant to Education Law § 6527 (3) andPublic Health Law § 2805-m (2) of those portions of the records which contain suchstatements. The Supreme Court should have denied that branch of the Hospital's cross motionwhich was for a protective order with respect to the aforementioned credentialing file and anyseparate written record of the aforementioned administrative peer review, to the extent ofallowing the aforementioned in camera review and subsequent disclosure of those portions of therecords, if any, which contain statements by the defendants regarding the subject matter of theaction. We therefore remit the matter to the Supreme Court, Suffolk County, to accomplish the incamera review.
The parties' remaining contentions are without merit. Rivera, J.P., Leventhal, Roman andSgroi, JJ., concur.