New York State Court of Claims

New York State Court of Claims
LINEN v. THE STATE OF NEW YORK, # 2018-053-520, Claim No. 127810, Motion No. M-91585, Cross-Motion No. CM-91723

Synopsis

Claimant's motion to compel the State to provide a complete response to her notice for discovery and inspection is denied and the State's cross motion for a protective order is granted.  The Court finds the demands overly broad, vague, and seek immaterial and privileged documents that are precluded under the Education Law and Public Health Law.  Claimant's motion for an extension of time to file the note of issue and certificate of readiness is granted.

Case information

UID: 2018-053-520
Claimant(s): BETTY J. LINEN
Claimant short name: LINEN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127810
Motion number(s): M-91585
Cross-motion number(s): CM-91723
Judge: J. DAVID SAMPSON
Claimant's attorney: THOMAS GUCCIONE, ESQ.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Indira Mahabir, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 26, 2018
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This is a claim for personal injuries arising out of a slip and fall which occurred on February 1, 2016 when claimant Betty J. Linen allegedly slipped on an accumulation of liquid in the corridor off the main lobby of the State University of New York (SUNY) Downstate Medical Center. Claimant moves to compel defendant to provide a full response to her notice for discovery and inspection dated July 31, 2017 and for an extension of time to file her note of issue and statement of readiness. Defendant opposes claimant's motion and cross- moves for a protective order.

By notice of discovery and inspection dated July 31, 2017 (Claimant's Exhibit C), claimant demanded that defendant produce the following:

"1. All documents, memoranda, minutes, notes and/or

reports prepared in the regular course of business in

connection with the 2013/2014 [FMEA] patient safety

initiative, as reflected in Defendant's Response to

Discovery and Inspection dated July 25, 2017, page 18.

2. All documents, memoranda, minutes, notes, and/or

reports prepared in the regular course of business in

connection with the monthly meetings of the Inter-

disciplinary Falls Prevention Team and its implemen-

tation of post-fall huddles, risk assessment tools and post

fall analysis tools, as reflected in Defendant's Response

to Discovery and Inspection dated July 25, 2017, Exhibit

A, page 18."

Both demands 1 and 2 of claimant's notice refer to defendant's response of July 25, 2017 to claimant's earlier demand for discovery and inspection. As part of its response to this earlier demand, defendant apparently produced a document entitled "WHAT EVERY RESIDENT, FELLOW, FACULTY and STAFF NEEDS TO KNOW". Page 18 of this document (see Claimant's Exhibit B), mentions a 2013/2014 FMEA (Failure Mode Effects Analysis) patient safety management program and mentions monthly meetings to oversee the falls reduction prevention team to implement post-fall huddles, risk assessment tools and post-fall analysis tools. In claimant's present demand (Claimant's Exhibit C), claimant requests every document, memoranda, minutes, notes and/or reports relating to the FMEA initiative and to the monthly meetings of the falls prevention team. Defendant objected to these demands on the grounds that they requested privileged documents, were vague, overbroad, and not likely to lead to relevant, admissible evidence. Defendant further objected as the claimant was not a patient of SUNY Downstate Medical Center at the time of the occurrence.

Public Health Law 2805-j requires every hospital to maintain a coordinated program for the identification and prevention of medical, dental and podiatric malpractice. Such a program must include a quality assurance committee to review the services rendered by the hospital. Public Health Law 2805-m and Education Law 6527 (3) exempt from disclosure documents relating to the performance of a medical or quality assurance review function or participation in a medical or dental malpractice prevention program (Logue v Velez, 92 NY2d 13 [1998]; Estate of Savage v Kredentser, 150 AD3d 1452 [3d Dept 2017]). "[The] purpose of the Education Law and Public Health Law discovery exclusions is to encourage a candid peer review of physicians, and thereby improve the quality of medical care and prevent malpractice" (Id., at 1455). It has long been recognized that Education Law 6527 (3), by incorporating Public Health Law 2905-l, requires hospitals to report incidents that go beyond medical care and treatment (see Katherine F. v State of New York, 94 NY2d 200 [1999]). Thus, the privileges of the Education Law and of the Public Health Law extend to all civil actions, and not just medical malpractice actions (DiCostanzo v Schwed, 146 AD3d 1044 [3d Dept 2017]).

Having asserted the statutory privileges of the Public Health Law and the Education Law, defendant bears the burden of establishing that the privileges are applicable. Defendant must show that it had a review procedure in place and that the documents requested were maintained or obtained in accordance with that procedure (Id., at 1046). In order to satisfy its burden, defendant offers the affidavit of Lynne Reid-McQueen, associate counsel at SUNY Downstate Medical Center.

Ms. Reid-McQueen, through her affidavit, established that SUNY Downstate Medical Center has in place a patient quality and safety management program which conducts proactive FMEA activities to reduce risks. According to Ms. Reid-McQueen, the 2013/2014 FMEA was to reduce falls and reduce injuries from falls. An interdisciplinary falls prevention team oversaw the falls reduction program and implemented post-fall huddles, risks assessment tools and post-fall analysis as part of the center's comprehensive quality and safety management program. This interdisciplinary falls prevention team is a component of SUNY Downstate Medical Center's Quality and Safety Management Program as required by the Public Health Law. Records generated and maintained by this program are solely for quality assurance and safety purposes and are, thus, privileged under the Education Law and the Public Health Law (Powers v Faxton Hosp., 23 AD3d 1105 [4th Dept 2005]).

Defendant furthers argues that both demands are overly broad in that they request any and all documents, no matter their relevance, and in that the second demand fails to even limit its scope. The Court concludes that claimant's notice of discovery and inspection dated July 31, 2017 is overly broad, vague, and seeks immaterial and privileged documents which are precluded from disclosure under the Education Law and the Public Health Law (DiCostanzo v Schwed, 146 AD3d 1044, supra at 1047).

Based on the foregoing, claimant's motion no. M-91585 to compel defendant to respond to claimant's July 31, 2017 notice of discovery and inspection is denied. Defendant's cross-motion no. CM-91723 for a protective order is granted and claimant's notice for discovery and inspection dated July 31, 2017 is hereby vacated. Finally, claimant's motion no. M-91585 is granted insofar as it requests an extension of time to file a note of issue and statement of readiness. Pursuant to a letter agreement dated January 4, 2018, and signed by counsel for both parties, the note of issue and statement of readiness shall be filed within sixty days after the filing of this decision and order.

April 26, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion no. M-91585 and supporting affirmation of Thomas Guccione, Esq. dated December 7, 2017, with annexed Exhibits A-D;

2. Notice of cross-motion no. CM-91723 and affirmation of Indira Mahabir, Esq. in opposition to claimant's motion and in support of defendant's cross-motion dated January 22, 2018;

3. Affidavit of Lynne Reid-McQueen, associate counsel of SUNY Downstate Medical Center in support of defendant's cross-motion sworn to January 22, 2018; and

4. Agreement dated January 4, 2018, signed by counsel for the parties.