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Mills v. Terence Cardinal Cooke Health Care Center

Supreme Court, New York County

April 25, 2011

RUTH MILLS, as Administratrix of the Estate of NERVELLA MCKENZIE, deceased, Plaintiff,

Unpublished Opinion

Motion Date 3/15/11



In this negligence action, defendant Terence Cardinal Cooke Health Care Center ("defendant") moves pursuant to CPLR 2304 to quash a subpoena served upon defendant's former Quality Improvement Nurse, Mattie Smith, "R.N. ("Smith"), and for a protective order pursuant to CPLR 2304 and 3103 with respect to Smith's deposition.

Factual Background

Ruth Mills ("plaintiff) commenced this action as guardian of the decedent, Nervelia McKenzie ("McKenzie") for personal injuries McKenzie sustained while a resident at defendant Terence Cardinal Cooke Health Care Center from July 25, 2001 through December 6, 2005. Plaintiff alleges that defendant violated various sections of the Public Health Law from January 1, 2004 to December 6, 2005, by, inter alia, negligently causing McKenzie to sustain unexplained leg fractures and failing to prevent and treat her ulcers (Bill of Particulars, ¶¶3, 10, 18), which allegedly led to her death.

Pursuant to a June 22, 2010 compliance conference order, defendant provided plaintiff with Smith's last known address, advising that Smith had conducted the investigation into McKenzie's leg injuries.

Thereafter, defendant served a judicial subpoena dated November 24, 2010 upon Smith for her deposition and served notice of the such deposition upon defendant. It is noted that the subpoena served on Smith did not include a demand upon her to produce any documents (Motion, Exh. J).

Defendant now moves to quash the deposition subpoena and for a protective order as to such deposition. Defendant argues that a protective order pursuant to CPLR §3103 against plaintiff taking Smith's deposition is warranted as plaintiff s judicial subpoena is facially defective, because it neither contained, nor was accompanied by a notice setting forth the reason why such disclosure was sought as required pursuant to CPLR 3101(a)(4).

In any event, argues defendant, plaintiff cannot establish special circumstances to warrant Smith's deposition, which is established by showing that the information sought cannot be obtained from other sources. Plaintiff has a copy of the Department of Health's report regarding the agency's investigation into the incident. The Department of Health conducted its own investigation, and would have been privy to the results of the defendant's quality assurance internal investigation. Thus, plaintiff cannot claim that the information sought from Smith is not obtainable from any other source.

Plaintiffs only reason for seeking Smith's deposition is to obtain information regarding the internal investigation she conducted as part of her quality assurance duties and mandatory reporting to the NYS Department of Health, which, is shielded from disclosure under federal and state law pursuant to 42 U.S.C.S. § 1395i-3(b)(1)(B)(ii), Education Law §6527(3) and NYPHL §2803-d(6)(e), which protects from disclosure those records created or generated for quality assurance purposes. The sole purpose of her investigations into accidents and incidents was to identify any deficiencies in care, which would then be discussed only at the Quality Improvement Committee meetings, in order to devise a plan of correction and to prevent any future recurrence. Requiring Smith to testify about her subsequent investigation and action would be in contravention of that which the above statutes and public policy seeks to avoid, namely, the facility being penalized for encouraging the review of errors or shortcomings by having records relating to the quality review function used by the plaintiff to demonstrate the facility's liability in a negligence action. Since the information plaintiff seeks to obtain from Smith is protected by statute, plaintiff is not entitled to it despite any showing of special circumstances.

Since Smith conducted the internal investigation, her deposition will reveal the circumstances surrounding the decedent's injuries. That plaintiff does not have a theory as to the cause of the decedent's leg injuries does not entitle plaintiff to disclosure of testimony and materials which are protected by statute.

Defendant further argues that given that Smith was not an observer or participant with respect to the decedent's leg injuries, and that any knowledge she may possess came from a second-hand source and after the fact due to her internal investigation into the incident, Smith has no first hand knowledge of the incident, and thus, plaintiff cannot show that Smith would provide testimony that is unavailable from other sources. Plaintiff has already had a full and complete opportunity to inquire as to the events that transpired on the date of the incident from the witnesses who were present, including C.N.A. Sonia Oates and C.N.A. Simone John. According to her deposition, Ms. Oates was the certified nurse's aide who discovered the resident's leg injuries on September 7, 2005, and immediately reported it to the nurse in charge. Plaintiff deposed defendant's employee, Simone John, the certified nurse's aide who was assigned to the decedent on the shift prior to Ms. Oates. Plaintiff also deposed the defendant's supervising administrator, Peter Karow, about his involvement in reporting the decedent's injuries to the Department of Health in September 2005. Smith's name was not mentioned by any of the employees who were deposed as a fact witness to the incident involving the decedent or contained in the decedent's nursing home record as a staff member who rendered any care or treatment to the decedent during her residency. Smith's sole involvement was limited to conducting the internal investigation into the decedent's bilateral leg injuries at the direction of the quality improvement team and within her role as the quality improvement nurse. Therefore, the plaintiffs basis for seeking the deposition of Smith is improper, as any documents and testimony concerning the nursing home's quality review process is privileged by state and federal laws.

Plaintiff opposes defendant's motion, and cross moves to strike defendant's Answer or compel defendant to produce witness statements of the accident ...

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