the requested documents are not for use in an action against either a particular physician or the hospital itself, the policy justifications underlying nondisclosure do not apply to this case. Because the insurance company here seeks the relevant documents in order to defend a breach of contract claim and to prevent insurance fraud, there is no basis for nondisclosure under either Public Health Law § 2805-m or Education Law § 6527(3).
The cases cited by Staten Island are distinguishable. In two of those cases-- Armenia v. Blue Cross of Western New York, Inc., 190 A.D.2d 1025, 593 N.Y.S.2d 648 (N.Y. App. Div., 4th Dep't 1993), and Shapiro v. Central General Hosp., 171 A.D.2d 786, 567 N.Y.S.2d 507 (N.Y. App. Div., 2d Dep't 1991)--the relevant documents were protected from disclosure due in part to the fact that disclosure would compromise the peer review and quality assurance functions of the health care providers involved. In contrast, the documents that Paul Revere seeks from Staten Island will not be used against the hospital, or against Dr. Tartaglia in his professional capacity.
The third case cited by Staten Island-- Daly v. Genovese, 96 A.D.2d 1027, 466 N.Y.S.2d 428 (N.Y. App. Div., 2d Dep't 1983)--involved an action for defamation between two physicians based upon allegedly slanderous statements made during the course of peer committee review proceedings. Although the case did extend the privilege embodied in Education Law § 6527(3) to discovery material in a case not involving a medical malpractice action, the case upheld precisely the policy goals underlying the confidentiality statute -- encouraging the open discussion and investigation of instances of misconduct of hospital physicians in order to improve medical care and reduce instances of medical malpractice. In this case, the legislative policy of encouraging hospitals to review the shortcomings of their physicians would not be furthered by protecting the relevant documents from disclosure, because there is no threat of litigation against those involved in Staten Island's peer review and quality assurance functions. Indeed, Paul Revere eliminates the danger of such litigation by offering to enter into a confidentiality agreement with Staten Island that limits the scope of distribution and allowable uses of the hospital's documents. Under the circumstances, the Court finds that neither Public Health Law § 2805-m nor Education Law § 6527 applies in the context of this litigation to the documents withheld by Staten Island.
2. Public Health Law § 230.
Staten Island claims that several documents concerning communications between the hospital and the New York State Department of Health Office of Professional Medical Conduct ("OPMC") are protected from disclosure by Public Health Law § 230. That provision creates a state board authorized to investigate instances of professional misconduct and requires hospitals to report to the OPMC information "which reasonably appears to show that a licensee is guilty of professional misconduct." N.Y. Pub. Health Law § 230(11)(a) (McKinney 1990 & Supp. 1996). The statute further states that complaints filed with the board "shall remain confidential and shall not be admitted into evidence in any administrative or judicial proceeding." Id.
The statute was enacted to "encourage disclosure of medical malpractice and physician misconduct and to alleviate complainants' fear of litigation resulting from doing so." Axelrod v. Sobol, 78 N.Y.2d 112, 115, 571 N.Y.S.2d 902, 903, 575 N.E.2d 388, 389 (1991). The policy reasons underlying this confidentiality provision thus parallel those that underlie Public Health Law § 2805-m and Education Law § 6527. The Court's analysis of those policy reasons with respect to the facts of this case applies to Staten Island's claim of privilege under this statute as well. The purpose of Public Health Law § 230 would not be furthered by applying its confidentiality provision to the facts of this case, since here there is no risk of litigation against either the hospital or the individual physicians involved in Staten Island's peer review and quality assurance process. Therefore, Staten Island cannot rely on Public Health Law § 230 to shield its records from discovery in this breach of contract action.
3. Mental Hygiene Law § 33.13.
Staten Island also relies on Mental Hygiene Law § 33.13, which requires certain facilities to maintain clinical records for patients. It provides that those records shall not be released to any person except, inter alia, "pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality." N.Y. Mental Hyg. Law § 33.13(c)(1) (McKinney 1996).
First, Paul Revere notes that a number of the documents that Staten Island claims are protected by this privilege do not appear to be clinical records of patients at all, but instead letters or memoranda regarding Dr. Tartaglia's conduct. Staten Island, the party with the burden in claiming this privilege, does not dispute this point. Therefore, to the extent that the documents in the privilege log do not appear in actual clinical records, they are not covered by this privilege.
Second, if any of the records concern Dr. Tartaglia as a patient, Paul Revere has possession of a medical release signed by Dr. Tartaglia that would alleviate the hospital's confidentiality concerns regarding those particular records. (Paul Revere's Mem. of Law. at 17.)
Finally, in this particular matter, the interests of justice significantly outweigh the need for confidentiality of the patient records. Paul Revere has indicated that it will enter into a confidentiality agreement with Staten Island with regard to all of the records involved in this case. With regard to clinical patient records that fall with the scope of Mental Hygiene Law § 33.13, identifying patient information should be redacted as part of such an agreement. Paul Revere has a serious need for access to the documents withheld by Staten Island to prove that it is entitled to rescind Dr. Tartaglia's insurance contracts and obtain repayment of the benefits it has already dispersed. Under the circumstances, the Court finds that the insurance company's interest in avoiding insurance fraud and in defending this breach of contract action warrants disclosure of the patient records, subject to an appropriate confidentiality agreement and redaction.
4. The Attorney-Client Privilege.
Staten Island also claims that a number of documents are protected from disclosure by the attorney-client privilege, which protects communications made in confidence by a client to her lawyer to obtain legal advice. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981); Fisher v. United States, 425 U.S. 391, 403, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976); Vingelli v. United States, 992 F.2d 449 (2d Cir. 1993). Paul Revere contends that only three of the relevant documents reflect communications between the hospital and an attorney, and that the rest of the documents "appear to have been generated as part of Staten Island's medical review process, not for the purpose of obtaining legal advice." (Paul Revere's Mem. of Law at 18.) Staten Island, the party bearing the burden, does not rebut Paul Revere's claim.
With regard to this claim of privilege, only the three documents that actually reflect communications between Staten Island and an attorney, (Privilege Log, Exh. H to Paul Revere's Order to Show Cause, Bates Nos. 156, 157, 184), may be withheld from discovery by Staten Island. The remaining documents are not protected by the attorney-client privilege.
5. The Doctor-Patient Privilege.
Finally, Staten Island claims that certain documents are protected from disclosure by the doctor-patient privilege, (Privilege Log, Exh. H to Paul Revere's Order to Show Cause, Bates Nos. 24-27, 29, 30-31). That privilege protects from disclosure information that a health professional "acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." N.Y. C.P.L.R. § 4504 (McKinney 1992 & Supp. 1996).
As discussed above, to the extent that any of the records concern Dr. Tartaglia as a patient, Paul Revere has possession of a medical release signed by Dr. Tartaglia that should alleviate the hospital's confidentiality concerns regarding those particular records. With regard to the clinical records of unknown patients, although it is not clear from the privilege log that the relevant documents actually contain confidential patient information, an appropriate confidentiality agreement should satisfy Staten Island's fears. Accordingly, the Court finds that the hospital may not withhold the relevant documents from discovery.
In accordance with the foregoing, IT IS HEREBY ORDERED that Paul Revere's motion for an order compelling non-party Staten Island Hospital to produce and permit inspection and copying of documents in response to the subpoena served on it is granted except as to documents numbered 156, 157, and 184 on Staten Island's privilege log, which documents are protected from disclosure by the attorney-client privilege. Staten Island is hereby ordered to comply with the subpoena dated June 12, 1996, with regard to all other documents on its privilege log. Prior to disclosure, the parties are directed to execute and submit to the Court an appropriate confidentiality agreement.
Dated: New York, New York
December 17, 1996
Sidney H. Stein, U.S.D.J.