Within the last month, the Appellate Division, Second Department created a new paradigm with respect to the discovery of quality assurance materials in the course of medical malpractice litigation. On Dec. 22, 2021, the court decided Siegel v. Snyder, ___ NYS 3d ___, 2021 NY Slip Opinion 07264, which broadly expands discovery of quality assurance documents and statements despite the clear statutory prohibitions of §6527 of the Education Law and §2805-m(2) of the Public Health Law. Before this error is corrected by the legislature or the Court of Appeals, it should be expected that there will be considerable activity in this area of discovery for pending malpractice cases.
The underlying facts are simple enough, involving a patient who died following admission through the emergency room after he was struck by a car and sustained a brain injury. Within several months after the patient’s treatment in 2015, the quality of the care provided was reviewed at three meetings of the hospital’s Trauma Peer Review Committee, whose activities the court described as having been in accordance with the relevant statutes. A lawsuit by the decedent’s estate followed in 2016, and discovery of the minutes of the peer review committee was demanded in the course of discovery. The institutional defendants sought a protective order based upon the verbatim prohibition of discovery contained in both statutes, and offered a redacted version of the minutes consistent with their interpretation of what was discoverable. The Supreme Court, following in camera inspection of the unredacted minutes, ordered a much broader disclosure of their content, which resulted in the issue being presented to the Appellate Division.
The pertinent provisions of the statutes are those by which the legislature partially delegated quality assurance responsibilities of the New York State Department of Health to the health care facilities themselves, charging them with the responsibility of maintaining a committee for the evaluation and improvement of the quality of care rendered. Neither the proceedings nor the records of such committees are subject to discovery under the CPLR, nor is any person who participates in the process required to testify as to what transpired. The single exception provided by these statutes permits discovery of “the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.” To appreciate how narrow the exception is, consider the fact that following release of the statement, the author would still not be authorized to testify as to what transpired. Further, according to the language of the statutes, a statement is discoverable only if made by a person who was a party to a lawsuit at the time the statement was made.
The decision of the Appellate Division ultimately expands the parameters of the clearly worded statutes to require disclosure of the statements of parties to a lawsuit who were not parties until well after the statements were given. Also expanded is the concept of a person’s “statement” to whatever interpretation the committee’s secretary may have recorded. However, the significant change is that the court expanded discovery to any content in the minutes not clearly attributed to non-parties, requiring that the defendants establish their right to statutory confidentiality by proving that all references to “statements” withheld were made by persons who were not parties to the subsequent lawsuit. Siegel, supra. The expansion of access to previously prohibited disclosure is novel to say the least, considering that these quality assurance committees have operated statewide for more than 50 years.
The Siegel decision includes a lengthy discussion of dissimilar statutory “privileges” of the individual as its rationale for this foray into the domain of the legislature. The thinking seems to be that the statutes create a quality-assurance “privilege”, which is a term found in the discussion of the cited statutes, but not used in the text of the statutes themselves. Where the legislature speaks of the attorney-client or other statutory privileges, it uses that word. That is likely because the attorney-client and other denominated privileges involve disclosure of confidences by a client to a consulted professional in a context where the privilege is clearly personal to the individual possessing the right to waive or assert it. In contrast, with quality assurance, no individual is in the position to possess, assert or waive a “privilege”, nor can one accurately determine the scope of a participant’s privilege.
The more apt comparison would be to an institutional area of confidentiality such as the Freedom of Information laws which expressly prohibit access to records under various scenarios, mostly related to the function of the agency whose records are requested. Cf. Gould v. NYC Police Dept., 89 N.Y.2d 267 (1996); Public Officers Law §87(2). The discussion should not focus upon privilege or who can assert it, but rather the balance between transparency and the inherent risk of disclosure of sensitive material related to the operation of the organization. Where those engaged in the activity have done so in good faith with the expectation of confidentiality, the purpose established by the confidentiality provisions is only served by consistent application. Capital Newspapers v. Burns, 67 N.Y.2d 562 (1986).
From the evidentiary perspective, the approach in the Siegel decision provides no offsetting benefit for a sweeping decrease in confidentiality. Presumably, a statement authored by a participant in treatment which is the subject of litigation could be relevant as an admission or otherwise. The author would be in a position to have direct knowledge of the facts of the treatment, and the statement would have weight in the determination of the claims against the speaker. However, the same does not hold true for articulations of unidentified speakers, whose statements involve the quality assurance goal, but have no evidentiary weight in the malpractice case. The unidentified speaker’s statement is hearsay, it is not known whether the speaker had any direct knowledge of the subject matter, it is unknowable whether the speaker had interests adverse to the defendants, and the speaker will not be available for cross examination. Moreover, the weight of the evidence is incapable of assessment. The lack of knowledge as to the identity of the speaker renders the statement worthless as evidence in the malpractice case. Measuring the value of unattributed statements against the damage to the quality assurance function is pointless because the statements have no weight whatsoever.
The decision also suffers from the fallacious assumption that there is identity of interest among those participating in the quality review process. The materials ordered to be released by the court include statements in the minutes which were clearly attributed to the “committee”, a clear reference to the Trauma Peer Review Committee itself. It is a fair inference that the committee would not include treating doctors evaluating the quality of their own actions. Thus, the court has gone out of its way to order disclosure of statements which originated from persons who were clearly engaged in the peer review function, and had no role in the treatment.
In any committee meeting of 20 or more persons engaged in the discussion of a topic of interest to all of them, one would not expect the person keeping the minutes to be able to correctly identify the source of every statement, but the court suggests a more sinister motive for the references to unidentified speakers. The court suggests an incentive to cite “the Committee” as the source of information to avoid disclosure, a problem which has not been of concern to other courts in identical circumstances. In re Subpoena Duces Tecum to Jane Doe, Esq., 99 N.Y.2d 434 (2003). The Court of Appeals has accurately referred to the legislative history of the statutory program as promoting the ability to “frankly and objectively analyze the quality of health services rendered by hospitals” (Logue v. Velez, 92 N.Y.2d 13, 17 (1998), citing Bill Jacket, L.1971, ch. 990, at 6), and “to promote the quality of care through self-review without fear of legal reprisal” (Katherine F. ex rel. Perez v. State, 94 N.Y.2d 200, 205 (1999)). Only the Siegel court has expressed concern about subverting the otherwise nonexistent legislative intent to permit the discovery of statements made by parties at incident review meetings. Siegel, supra.
The new paradigm creates a multitude of practical issues. Cases are frequently reviewed in groups involving patients whose HIPAA protection has never been waived. Individual practitioners may have markedly different interests from the institutions which control the narrative in the minutes. Having judges review thousands of sets of quality assurance minutes to determine what is discoverable necessarily weakens the confidentiality of the quality review process. The uncertainty as to what will be discoverable will only have a chilling effect on the quality review goals. It is difficult to quantify the interim effect of the disputes over existing quality assurance data which will arise before those programs are able to adjust to their new responsibilities. Until this problem is rectified, only the quality assurance programs which do not take statements from the participants in the care and document that practice will avoid disrupting uncertainty. This is clearly an area where the legislature should have been permitted to address the perceived problem without this intrusion.
This article is also on Law.com: An Unfortunate Ruling on Discovery of Quality Assurance Minutes