Edward A. Hale, Jr., as Administrator of the Estate of Edward A. Hale, Deceased, Plaintiff,
Odd Fellow & Rebekah Health Care Facility et al., Defendants. Huber Construction, Inc., Third-Party Plaintiff,
Custom Sheet Metal & Fabricating, Inc., Third-Party Defendant.
Renaldo, Myers & Palumbo, P. C. (James I. Myers of counsel), for plaintiff.
Smith, Sovik, Kendrick & Sugnet, P. C. (Daniel A.
Bronk of counsel), for Odd Fellow & Rebekah Health Care Facility and others, defendants.
John P. Lane, J.
Edward Hale allegedly was injured and died on May 19, 1999 following a fall through a hole in the first floor of Odd Fellow & Rebekah Health Care Facility, where he resided. The hole had been created during an ongoing construction project. Plaintiff has submitted a comprehensive motion to compel disclosure by defendants Odd Fellow & Rebekah Health Care Facility, Odd Fellow & Rebekah Health Care Facility, Inc., and Charles Horoak, who have cross-moved for an order of protection. Most of the issues raised by the motion and the cross motion have been resolved. The issues remaining relate to disclosure of certain minutes of the facility quality assurance committee and of a plan of correction prepared for defendants by a consultant and plaintiff's use of materials he obtained from the Department of Health.
Defendants have produced minutes of the regular meetings of the quality assurance committee from July 9, 1998 through July 1, 1999 and minutes of a meeting of members of that committee with representatives of the construction contractor held on May 27, 1999 for in camera review. Defendants assert that these minutes are privileged under Education Law § 6527 (3) and 42 U.S.C. § 1395i-3.
Section 1395i-3 (b) (1) (B) of U.S.C. title 42 provides, in pertinent part, that a State may not require the disclosure of records of a quality assessment and assurance committee required to be maintained by a skilled nursing home such as the Odd Fellow facility, except insofar as disclosure is related to compliance by the committee with the requirements of paragraph (1) that the facility provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident. [*]
Only one court appears to have construed 42 U.S.C. § 1395i-3 (b) (1) (B). In State ex rel. Boone Retirement Ctr. v Hamilton (946 S.W.2d 740 [Mo]) the Supreme Court of Missouri held that " the privilege created by the Congress in the referenced statute[ ] bars a state grand jury from compelling
disclosure of records of a quality assurance committee" (946 S.W.2d at 741). InBoone, a Grand Jury investigating allegations of criminal neglect in the care of residents of a nursing facility issued a subpoena directing the production of any and all records and reports generated by or submitted to the quality assurance committee during a two-year period. The Missouri Supreme Court concluded that the use of the word " State" in establishing the privilege signaled an intent by Congress to prohibit " the whole of the functional, legal entity organized to act as a government" (946 S.W.2d at 742), and therefore a state Grand Jury, from compelling disclosure of records generated by quality assurance committees but not to materials created outside those committees and submitted to them for review.
The privilege created by Education Law § 6527 (3) is narrower than the federal privilege in that it applies only to disclosure sought in civil actions (see, Matter of Grand Jury Subpoena [People--New York City Health & Hosps. Corp.], 272 A.D.2d 214; Matter of St. Elizabeth's Hosp. v State Bd. of Professional Med. Conduct, 174 A.D.2d 225). Otherwise, the State privilege, which extends to information generated as a part of a quality review process outside of quality assurance review committee proceedings (see, vanBergen v Long Beach Med. Ctr., 277 A.D.2d 374; Sonsini v Memorial Hosp. for Cancer & Diseases, 262 A.D.2d 185; Crea v Newfane Inter-Community Mem. Hosp., 224 A.D.2d 976) as well as to reports received by the Department of Health pursuant to Public Health Law § 2805-l, is broader than its federal counterpart as interpreted by the Boone court.
Most of the information contained in the minutes of the regular meetings of the quality assurance committee appears to be privileged under Education Law§ 6527 (3). However, the entries found in these minutes under the heading " Maintenance," which include references to inspections of the premises, are not proceedings and records relating to quality review functions or the other situations addressed by Education Law § 6527 (3) (see, Smith v State of New York, 181 A.D.2d 227, 230). Although section 6527 (3) extends confidentiality to some reports of nonmedical incidents prepared by hospitals pursuant to Public Health Law § 2805-l (see, Katherine F. v State of New York, 94 ...