Syposs v. United States

Syposs v. United States

Opinion

 [*302] DECISION AND ORDER

JURISDICTION

This matter was referred to the undersigned on May 26, 1998 for determination of any non-dispositive matters. In a Decision and Order, dated July 1, 1998 ("D&O"), the court granted Plaintiffs' motion to enforce subpoenas issued to non-parties Sisters of Charity Hospital ("Sisters Hospital") and Erie County Medical Center ("ECMC"),  [**2]  dated April 13, 1998 and denied non-party Children's Hospital of Buffalo's ("Children's Hospital") ("the hospitals") motion to quash Plaintiffs' subpoena, dated April 14, 1998. Treating the non-parties appeals of the Decision and Order as a motions for reconsideration, the matter was referred to the undersigned by the district judge on July 24, 1998.

BACKGROUND

Plaintiffs' subpoenas seek "peer review" records as to procedures undertaken by Dr. Lorenzo T. Teruel and applications, including supporting documentation, submitted by Dr. Teruel for privileges at each of the non-party hospitals. Dr. Teruel was a Veteran's Administration Hospital physician whose surgery is at issue in this Federal  [*303]  Tort Claims Act case. Relying on New York Education Law § 6527 subd. 3 and New York Public Health Law § 2805-m, each of the non-party hospitals refused compliance asserting the requested information was privileged and thus exempt from disclosure under these statutes.

Section 6527 subd. 3 of the Education Law exempts from disclosure pursuant to Article 31 of the New York Civil Practice Act and Rules, providing for pretrial discovery in state court civil cases, "proceedings or records relating [**3]  to performance of a medical or quality assurance review function." N.Y. Educ.L. § 6527 subd. 3 (McKinney 1985). As relevant, section 2805-m of the Public Health Law creates a similar exemption from disclosure for records relating to review of the quality of medical care given in hospitals, evaluation of staff privileges and credentials and capacity of health care providers employed by or associated with a hospital. N.Y.Public Health L. 2805-m (McKinney 1993). ] The statutes do not apply to statements made by a person attending a meeting of a quality assurance committee if the person is a party to an action the subject of which was reviewed at the meeting. Both statutes exclude the testimony of persons participating in such reviews as to what occurred at a quality assurance meeting. Additionally, both statutes provide for immunity from suit as to statements or actions taken in connection with such quality assurance review functions unless based on information which is "untrue and communicated with malicious intent." N.Y. Public Health Law § 2805-m (McKinney 1993). However, as the ] instant action is one pursuant to the Federal Tort Claims Act, the existence of an asserted privilege is [**4]  a federal question to be determined in accordance with Fed. R. Evid. 501 (where federal law provides the rule of decision asserted privileges are to be determined in accordance with principles of the common law and based on "reason and experience"). Based on its review of relevant authority, the court found that a medical "peer review" privilege should not be recognized in federal actions. D&O at 12-13. Accordingly, it granted Plaintiffs' motion to compel and denied Children's Hospital's motion to quash.

Oral argument on the motion for reconsideration was conducted on January 28, 1999. Supplemental material in the form of copies of legislative history related to the New York statutes relied upon by the hospital non-parties were submitted on March 1, 1999 by Children's Hospital (Doc. # 106). Affidavits were also submitted by the medical director of each hospital (Affidavit of Charles Massaro, M.D., Medical Director, Sisters Hospital dated July 7, 1999) ("Massaro Affidavit") (Doc. # 107); Affidavit of Margaret W. Paroski, M.D., Medical Director, Erie County Medical Center dated July 15, 1999) ("Paroski Affidavit") (Doc. # 81); Affidavit of Paul Montgomery, M.D., President of the Medical [**5]  Staff, Kaleida Health, successor to Children's Hospital, dated July 2, 1999) ("Montgomery Affidavit" (Doc. # 108). ECMC and Children's Hospital also submitted, in accordance with the court's order dated June 23, 1999, privilege logs describing the information relevant to Plaintiffs' subpoena as to which the privilege is asserted. (Doc. #'s 80, 109, respectively). Sisters Hospital had filed a privilege log with its opposition to Plaintiff's motion. For the reasons discussed, the non-parties' motion for reconsideration is GRANTED and upon reconsideration the court adheres to its Decision and Order of July 1, 1998 declining to recognize a medical peer review privilege.

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