Opinion
# 2011-009-030 Claim No. 119370 Motion No. M-79807 Cross-Motion No. CM-79979
11-01-2011
RUVA v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to suppress certain information as privileged under the Public Health Law and Education Law was granted. Case information
UID: 2011-009-030 Claimant(s): ROSANNE M. RUVA, Individually and as Executor of the Estate of FRANK D. RUVA, Deceased Claimant short name: RUVA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant (s): Claim number(s): 119370 Motion number(s): M-79807 Cross-motion number CM-79979 (s): Judge: NICHOLAS V. MIDEY JR. PORTER NORDBY HOWE, LLP Claimant's attorney: BY: Eric C. Nordby, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Senta B. Siuda, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: November 1, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has brought this motion (M-79807) seeking an order to suppress certain information previously obtained by claimant, contending that the information is privileged and therefore not subject to disclosure, pursuant to the Public Health Law and the Education Law. Claimant has responded with a cross-motion (CM-79979), not only in opposition to defendant's motion, but also seeking an order to compel the examination before trial of certain State employees, and to order the disclosure of further information regarding a specific ACTS Complaint/Incident Investigation Report.
The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation of Senta B. Siuda, Esq., Assistant Attorney General, with Exhibit 1,2(Reply) Affirmation of Senta B. Siuda, Esq., Assistant Attorney General, Affirmation of David Duggan, M.D., with Exhibit 5,6
Notice of Cross-Motion to Compel Disclosure, Affirmation of Eric C. Nordby, Esq., with Exhibit 3,4
Claimant, Rosanne M. Ruva has brought this claim alleging medical malpractice and negligence by the State University of New York Upstate University Hospital ("Upstate"), based upon the care and treatment provided to her husband, Frank D. Ruva, in 2009. As set forth in the claim, Mr. Ruva was admitted to Upstate on May 26, 2009, complaining of shortness of breath, and remained hospitalized there until he was discharged on June 8, 2009. Mr. Ruva was then re-admitted to Upstate later that same day, June 8, 2009, and remained hospitalized until his death on June 23, 2009. The claim is essentially based upon the circumstances surrounding Mr. Ruva's discharge on June 8, 2009, and the medication and instructions given to him at that time.
Prior to filing her claim, claimant made a request to the Department of Health ("DOH") under the Freedom of Information Law (FOIL) for all records pertaining to a complaint she had made against Upstate regarding the care and treatment provided to her husband. By correspondence dated April 28, 2010, a response was provided by the DOH Records Access Office, consisting of 34 pages of documents.
In his Affirmation in Opposition to Defendant's Motion, claimant's attorney affirms that Mrs. Ruva actually received 25 pages of records in response to her FOIL request.
Thereafter, claimant filed her Verified Claim with the Clerk of the Court of Claims on January 18, 2011.A Verified Answer was filed on April 4, 2011. In her claim, claimant quoted language from certain records which had been provided to her in the FOIL response of April 28, 2010, and also included copies of those records with her claim.
An Amended Verified Claim was filed on February 9, 2011, containing "Exhibit A" which, although referenced, had not been included with the original claim.
In its motion for a protective order (M-79807), defendant contends that certain information provided to claimant in the FOIL response of April 28, 2010 from DOH is privileged and protected from disclosure, and was voluntarily disclosed to claimant in response to her FOIL request.
Although there is considerable discussion in the motion papers regarding the various reports and documents provided to claimant, defendant's motion is limited to two specific excerpts contained in those reports which were in fact quoted by claimant in her claim (and amended claim) at paragraphs 48 and 50. In other words, defendant does not seek a protective order with respect to the entire response made to claimant's FOIL request, but rather contends that certain information which was provided consists of "Quality Assurance" information which is exempt from disclosure under the Public Health Law and the Education Law, and should not have been disclosed in the FOIL response.
The specific quoted language for which the protective order is sought is contained in the "ACTS Complaint/Incident Investigation Report" provided to claimant (set forth as Exhibit A-O6 to claimant's Notice of Cross-Motion to Compel Disclosure). Although defendant does not contend in this motion that the entire "ACTS Complaint/Incident Investigation Report" is privileged, it does contend that certain language under "Allegation #2" contained in that report constitutes Quality Assurance information and is therefore privileged. As stated above, the same language was quoted by claimant in her filed claim at paragraphs 48 and 50.
In response to claimant's cross-motion, defendant has submitted the Affirmation of David Duggan, M.D., an employee of Upstate and currently the physician in charge of Quality Assurance for Upstate. Dr. Duggan affirms that the language quoted by claimant in paragraph 48 of her claim is contained in the Quality Review performed by the Pharmacy and Therapeutics Committee concerning the medical treatment provided to Mr. Ruva. He further affirms that this departmental review is a component of Upstate's Quality Assurance review function.
With regard to the quoted language set forth in paragraph 50 of the claim, Dr. Duggan affirms that this information was part of the Quality Review made by the Medicine Department, pertaining to the medical treatment provided to Mr. Ruva, and that this review as well is a component of Upstate's Quality Assurance review function.
Additionally, and although not specifically referenced in the filed claim, Dr. Duggan affirms that two sentences at the end of "Allegation #2" in the "ACTS Complaint/Incident Investigation Report" referred to the findings of the "hospital's investigation", that such investigation also constitutes a quality review, and that those findings therefore are Quality Assurance material and should also be exempt from disclosure.
Pursuant to Education Law § 6527(3) and Public Health Law § 2805-m, proceedings, records and information generated by a hospital in connection with a Quality Assurance review function, including programs for the identification and prevention of medical malpractice, are confidential and therefore privileged and not subject to disclosure (Logue v Velez, 92 NY2d 13). The purpose of this statutory privilege is "to promote the quality of health care through self-review without fear of legal repercussions by assuring confidentiality to those performing the review" (Brazinski v New York Chiropractic Coll., 284 AD2d 647, 648).
In this particular matter, defendant has established that Upstate was required to undertake a Quality Assurance review of the treatment provided to Mr. Ruva, and to report its findings to DOH. Through the Affirmation of Dr. Duggan, defendant has satisfied the Court that the language set forth in paragraphs 48 and 50 of this claim, and quoted from the "ACTS Complaint/Incident Investigation Report" were in fact obtained from Upstate's Quality Assurance review, and therefore the quoted language is entitled to statutory confidentiality (Smith v Delago, 2 AD3d 1259).
Although not set forth in the claim, this finding of statutory confidentiality also applies to the two sentences set forth at the end of Allegation #2 in the "ACTS Complaint/Incident Investigation Report", referred to by Dr. Duggan in his Affirmation.
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As set forth in its cross-motion papers, claimant first contends that defendant has not sustained its burden of establishing that the language in dispute consisted of Quality Assurance information. However, based upon the Affirmation of Dr. Duggan, the physician in charge of Quality Assurance for Upstate, as well as a clear reading of the disputed language, this argument is unavailing.
Claimant further contends that Upstate should not be permitted to withhold this information, since it intentionally withheld the results of the investigation from the claimant. As stated above, however, this Court has found that the information in question was clearly generated in response to Upstate's internal Quality Assurance review obligations under Public Health Law Article 28. There is no exception to the statutory confidentiality requiring or authorizing disclosure to a complainant, as Article 28 provides a complete confidentiality for Quality Assurance review material.
Finally, claimant contends that the State waived any privilege since the quoted language was voluntarily disclosed by DOH in its response to claimant's FOIL request. Although the "ACTS Complaint/Incident Investigation Report" may itself be discoverable, the statutorily privileged material should have been redacted prior to its disclosure. DOH has acknowledged that the disclosure of this information was inadvertently made (see letter from Robert "Jake" LoCicero, Esq., dated February 14, 2001 [Exhibit 1 to Items 1, 2]), and it is important to note that this disclosure was made not by Upstate (which was required to provide its Quality Assurance review investigation to DOH) but rather by DOH. The Court finds that under these circumstances, there was no waiver of the statutory confidentiality provisions by Upstate (Smith v Delago, supra).
Since the Court has found that the prior disclosure contained statutorily privileged information, and that the privilege was not waived, the more difficult aspect of this motion is to therefore fashion a proper remedy to correct this inadvertent disclosure. The issue is made even more complicated by the fact that claimant directly quoted privileged information in her filed claim. Therefore, it will be necessary for claimant to serve and file a "Second Amended Claim" which must not utilize any of the quoted (privileged) language currently contained in paragraphs 48 and 50 of the claim currently on file. Additionally, since Exhibit A to the claim also contains the Quality Assurance material which is the subject of this motion that exhibit, if included with the Second Amended Claim, must be redacted to remove any such reference or material.
Additionally, claimant and her counsel must cease and desist from any further use of the privileged material, nor make any further dissemination of this privileged material. Furthermore, if claimant and/or her counsel have made any prior dissemination of the privileged material, they are hereby directed to take reasonable steps to retrieve it.
As to claimant's cross-motion (CM-79979), and based upon the determination on defendant's motion, claimant's request for an order compelling the examination before trial of three State employees with regard to the circumstances surrounding the preparation and disclosure of the "ACTS Complaint/Incident Investigation Report", as well as for an order directing additional disclosure pertaining to this report, is hereby denied.
Accordingly, it is
ORDERED, that Motion No. M-79807 is hereby GRANTED; and it is further
ORDERED, that the quoted language set forth in paragraphs 48 and 50 of the filed claim, as well as the two sentences contained at the end of "Allegation #2" in the "ACTS Complaint/Incident Investigation Report" constitute privileged material exempt from disclosure; and it is further
ORDERED, that within 30 days from the date of filing of this Decision and Order, claimant shall serve and file her "Second Amended Claim", as directed herein, without use of any of the material determined to be privileged herein; and it is further
ORDERED, that if claimant attaches her "Exhibit A" to the "Second Amended Claim", such exhibit must be redacted to remove any reference to or use of the material determined to be privileged herein; and it is further
ORDERED, that claimant and her counsel are hereby directed to cease and desist from any further use of the privileged material, to make no further dissemination of the privileged material, and to take reasonable steps to retrieve the privileged material, if any prior dissemination has been made; and it is further
ORDERED, that the Clerk of the Court is hereby directed to seal the previously filed "Claim" and "Amended Claim", as well as all motion papers on file concerning this motion and cross-motion; and it is further
ORDERED, that Cross-Motion No. CM-79979 is hereby DENIED.
November 1, 2011
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims