A recent decision out of the New York State Appellate Division, Second Department, highlights the ongoing efforts of plaintiffs’ attorneys in New York to obtain nursing homes’ confidential records. When there is an incident at a nursing home, nursing homes often generate various incident reports and other quality assurance documentation regardless of whether there is any negligence or wrongdoing on behalf of the nursing home and its personnel. The purpose of this documentation is to permit review of nursing home practices and personnel and improve the quality of care at the nursing home.
Plaintiffs’ attorneys, for obvious reasons, are eager to obtain quality assurance documentation and use it against nursing homes in personal injury litigation. These documents, however, are privileged and confidential under Public Health Law § 2805-m, Education Law § 6527(3), and similar federal law.
In Robertson (2), a medical malpractice lawsuit against a nursing home, the plaintiff sought disclosure of four of the nursing home’s occurrence reports. Although it goes unstated in the Court’s decision, it is likely the occurrence reports were generated by or at the behest of the nursing home’s quality assurance committee. The Court concluded that the occurrence reports were not entitled to protection, and ordered that the occurrence reports be disclosed to the plaintiff’s attorneys. The Court declined to protect the documentation under § 2805-m or § 6527(3) because, according to the Court, the nursing home’s motion papers failed to show that the records were generated by or at the behest of a quality assurance committee. The decision reveals that the nursing home’s attorneys relied on the affidavit of the nursing home’s administrator as well as an in camera inspection of the reports by the lower court. The Robertson decision does not discuss in detail why the evidence was insufficient; however, a prior case out of the Appellate Division, Fourth Department, provides some clues.
In Slayton (2), the Fourth Department, much like the Second Department in Robertson, declined to protect a hospital’s patient/visitor occurrence report under § 6527(3) and § 2805-m. The hospital’s attorneys submitted the report for in camera inspection and submitted the affidavit of the hospital’s director of risk management. That affidavit stated “the report was prepared solely and exclusively in connection with the hospital’s malpractice prevention program.” The Court held the affidavit was conclusory and did not demonstrate the form was generated at the behest of the hospital’s malpractice prevention program.
The issue, the purported insufficiency of proof that facilities’ quality assurance records are entitled to protection under § 6527(3) and § 2805-m, is a recurring one (3). The courts in recent decisions appear to be looking for more evidence from nursing homes showing that particular records are quality assurance records and privileged. It is a troubling to watch a clear and important legislative purpose (medical malpractice tort reform and improved internal quality assurance practices) (4) frustrated and undermined by concerns as minor as the sufficiency of detail in a witness’s affidavit.
The disclosure of these quality assurance records can have devastating consequences in the underlying personal injury litigation. The natural result will be that participants in quality assurance committees and investigations will inevitably feel less secure and less able to conduct thorough investigations, make full internal disclosures, and issue the candid opinions that the statutory privileges sought to encourage. Barring a change in the current direction of the courts, counsel for nursing homes must be extra vigilant in protecting the sanctity of these records. The erosion of the privilege afforded to quality assurance documentation is bad for nursing homes and the residents they serve.
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(1) 2017 NY Slip Op 06204 (2) 111 AD3d 1314 (2013) (3) Cf. Matter of Coniber, 81 AD3d 1329 (4th Dept 2011)
(4) See Logue, 92 NY2d 13 (1998)