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Quality Assurance Committees Take Note — Identify the Speaker or Lose the Privilege

New York State and federal law both contain confidentiality provisions protecting quality assurance committee materials from disclosure to “encourage thorough and candid peer review” and to “sustain a culture of quality improvement.”[i] These protections also extend to certain mandatory adverse event reporting and peer review committees. The concern underlying such confidentiality laws is that committees, if subject to the harsh scrutiny of government agencies and private litigants, will conduct themselves in a defensive manner and be incentivized to minimize quality issues and defend past practices and procedures, as opposed to engaging in aggressive and exacting review and quality improvement activities. It is a laudable policy goal that is reflected elsewhere in the law, such as the subsequent remedial measures doctrine, which prohibits litigants from introducing evidence of corrective measures taken after an injury as evidence of negligence or fault.

Despite the important policy objective served by such confidentiality laws, the courts have repeatedly denied the confidentiality of such committee materials. These court decisions risk contributing to uncertainty and fear among committee participants. Courts when applying these confidentiality laws to actual cases and controversies are presented with difficult questions that written statutes and regulations do not resolve. As a result, courts must necessarily balance important legal and policy considerations or otherwise refuse to rule and thereby cease to function themselves. By continuing to resolve that balance in favor of disclosure, however, and continuing to burden facilities and health care providers with demonstrating in exacting detail that their committees’ materials are entitled to privilege enshrined in state and federal law, the courts risk undermining the important state and federal policy objectives behind such laws.

The New York courts ended 2021 with another blow to such confidentiality in a medical malpractice case. Plaintiff sued various defendants, including a community hospital and treating physicians, alleging that Plaintiff’s decedent died after being struck by a car due to the negligence of the defendant health care providers. Plaintiff demanded access to the reports of a defendant’s peer review committee, which had reviewed the treatment provided to the decedent. The defendants opposed such disclosure and moved for a protective order.

The protection afforded by Public Health Law § 2805-m, one of the confidentiality laws, contains a party-statement exception. The party statement exception states that “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” are not protected from disclosure. The trial court examined the unredacted reports in camera and denied the defendants’ motion for a protective order. The court concluded, in summary, that it could not determine who made the statements from the committee meeting minutes as such statements were all attributed therein to the committee as a whole as opposed to particular individuals. On appeal, the Appellate Division affirmed the trial court’s decision.

Despite the unfortunate result, the Court in that case cannot be said to have passed on the question of confidentiality lightly. The Appellate Division devoted pages to its analysis and reasoning. Ultimately, if the public policy is not served by well-reasoned court decisions, the legislature must act to clarify or reinforce its laws. For the moment, hospitals and nursing homes should react by ensuring that their committees accurately and contemporaneously attribute any statements in their meeting minutes and reports. For facilities and committees looking to implement this requirement, the current state of the law and the Court’s decision leave some flexibility.

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Quality Assurance Committees Take Note - Identify the Speaker or Lose the Privilege
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2022 Law Offices of Pullano & Farrow PLLC

[i] Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434 (2003)


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