The New York Appellate Division, Third Division, analyzed, in a recent decision, the ability of defendants in New York medical malpractice lawsuits to assert statutory privileges during the discovery process. The court upheld the trial court’s ruling that the plaintiff’s discovery request was overly broad and vague, and therefore, the defendants did not have to disclose the information requested. The court relied on the analysis in a seminal case on the subject, Stalker v. Abraham, which outlines the statutory requirements of the privilege and the burden on defendants to prove its applicability.
When available, defendants often invoke the prohibitions on disclosure contained in the New York Education Law and the Public Health Law in tandem. These provisions are part of a policy to encourage open discussions with physicians about the credentialing process. The idea is that if the discussions are discoverable in litigation, physicians would not speak as candidly during these assessments. The hospital bears the burden of establishing the availability of the privilege. The hospital must show the following elements: (i) the hospital has a review procedure, and (ii) the information for which the privilege is asserted was obtained in connection with that review procedure. Without the protection of the privilege, any information the hospital has maintained related to a physician’s alleged negligence is generally relevant and subject to disclosure.
The defendant in Stalker, to support its assertion of privilege, submitted an affidavit from a medical credentialing specialist. She stated that the information requested would only be available through the credentialing process. She further stated that the purpose for the hospital’s credentialing process was to comply with any and all legal obligations that require that hospitals have established procedures in place to reduce medical malpractice. Moreover, it was in the specialist’s opinion that all of the information requested by the plaintiff was the sort of information gathered through peer review, credentialing, and quality assurance processes.
Based on this evidence, the appeals court affirmed the ruling and agreed that the defendant had successfully invoked the privileges against disclosure under the New York Education Law and the Public Health Law. The legislative policy of providing confidentiality in order to encourage peer review outweighs a plaintiff’s need for evidence in order to prove a cause of action, according to the court.
Physicians and other medical professionals are required to act within an established standard of care when diagnosing, treating, and monitoring patients. Sometimes this does not happen, and patients can suffer injuries as a result of medical malpractice. If you would like to speak to a Rochester attorney about your medical malpractice case, call DeFrancisco & Falgiatano Personal Injury Lawyers at 315-479-9000 or contact us online.
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