THOMAS P. JOUSMA AND ELLENE PHUFAS-JOUSMA, PLAINTIFFS-RESPONDENTS,
DR. VENKATESWARA R. KOLLI AND KALEIDA HEALTH, DOING BUSINESS AS DEGRAFF MEMORIAL HOSPITAL, DEFENDANTS-APPELLANTS.
BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (JOHN P. DANIEU
OF COUNSEL), FOR DEFENDANT-APPELLANT DR. VENKATESWARA R.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (VICTOR A.
OLIVERI OF COUNSEL), FOR DEFENDANT-APPELLANT KALEIDA HEALTH,
DOING BUSINESS AS DEGRAFF MEMORIAL HOSPITAL.
FRANCIS M. LETRO, BUFFALO (CAREY C. BEYER OF COUNSEL), FOR
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND
from an amended order of the Supreme Court, Niagara County
(Ralph A. Boniello, III, J.), entered March 2, 2016. The
amended order compelled disclosure of various documents and
ordered a second deposition of defendant Dr. Venkateswara R.
hereby ORDERED that the amended order so appealed from is
unanimously reversed on the law without costs and
plaintiffs' motion is denied.
Defendants appeal from an amended order compelling disclosure
of various documents and ordering a second deposition of
defendant Dr. Venkateswara R. Kolli. At Dr. Kolli's first
deposition, his attorney directed him not to answer certain
questions relating to alleged prior instances of malpractice
on his part. Plaintiffs thereafter moved for disclosure of
Dr. Kolli's credentialing and personnel files, held by
defendant Kaleida Health, doing business as DeGraff Memorial
Hospital, and for leave to conduct a second deposition of Dr.
Kolli with regard to the information contained in those
files. Supreme Court granted plaintiffs' motion over
defendants' objections that the documents are privileged.
We now reverse.
the discoverability of Dr. Kolli's credentialing file, we
note that such files "fall squarely within the materials
that are made confidential by Education Law § 6527 (3)
and article 28 of the Public Health Law" (Logue v
Velez, 92 N.Y.2d 13, 18; see Lamacchia v
Schwartz, 94 A.D.3d 712, 714; Scinta v Van
Coevering, 284 A.D.2d 1000, 1001-1002). That privilege
shields from disclosure " the proceedings [and] the
records relating to performance of a medical or a quality
assurance review function or participation in a medical...
malpractice prevention program' " (Logue,
92 N.Y.2d at 16-17). Here, defendants established that the
credentialing file was "generated in connection with a
quality assurance review function pursuant to Education Law
§ 6527 (3) or a malpractice prevention program pursuant
to [article 28 of the] Public Health Law" (Matter of
Coniber v United Mem. Med. Ctr., 81 A.D.3d 1329, 1330
[internal quotation marks omitted]). We therefore conclude
that the credentialing file is privileged and that the court
improperly ordered defendants to disclose it (see
there is an exception to the privilege, the exception is
limited to those statements made by a doctor to his or her
employer-hospital concerning the subject matter of a
malpractice action and pursuant to the hospital's
quality-control inquiry into the incident underlying that
action (see Logue, 92 N.Y.2d at 18; Bryant v
Bui, 265 A.D.2d 848, 849; Swartzenberg v
Trivedi, 189 A.D.2d 151, 152-154, appeal
dismissed 82 N.Y.2d 749). Contrary to plaintiffs'
contention, that exception does not apply here because the
injury underlying this action was never the subject of such
an inquiry. Byork v Carmer (109 A.D.2d 1087, 1088),
relied upon by plaintiffs, is distinguishable. In that case,
plaintiff sought to question a hospital employee about the
hospital's knowledge of prior alleged incidents of
malpractice by a particular doctor. We rejected the defendant
hospital's invocation of the privilege accorded by
Education Law § 6527 (3) inasmuch as "information
regarding [the hospital's] knowledge of alleged prior
incidents of negligence by [the doctor]" does not fall
under that privilege (Byork, 109 A.D.2d at 1088).
Here, in contrast, plaintiffs do not seek to question Dr.
Kolli merely about "information"; they seek access
to his entire credentialing file, and that file is privileged
(see § 6527 ).
the discoverability of Dr. Kolli's personnel file, we
conclude that plaintiffs' general request for that entire
file is overly broad (see Haga v Pyke, 19 A.D.3d
1053, 1055; Conway v Bayley Seton Hosp., 104 A.D.2d
1018, 1019-1020), and we therefore deny that request in its
entirety. We thus have no occasion to decide whether any
privilege might apply to specific documents in the personnel
file (see generally Conway, 104 A.D.2d at 1020).
light of our determination to reverse the amended order
compelling disclosure of the above documents, a second
deposition of Dr. Kolli to explore the issues raised in the
documents is unneccessary. We have reviewed defendants'