Opinion
# 2012-015-319 Claim No. 118317 Motion No. M-80802
03-30-2012
ROCKWELL v. THE STATE OF NEW YORK
Synopsis
Motion to compel disclosure was granted, in part. Case information
UID: 2012-015-319 Claimant(s): DONNA ROCKWELL, Individually and as Administratrix of the Estate of PAMELA ANN ROCKWELL Claimant short name: ROCKWELL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant (s): Claim number(s): 118317 Motion number(s): M-80802 Cross-motion number (s): Judge: FRANCIS T. COLLINS Maguire Cardona, P.C. Claimant's attorney: By: Randall J. Ezick, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Anthony Rotondi, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: March 30, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for an Order pursuant to CPLR 3124 and 3126compelling defendant to produce certain items of discovery for which it asserts a privilege under Education Law § 6527 (3), Mental Hygiene Law § 29.29 and Public Officers Law § 96 and to sanction defendant for its failure to provide certain records.
Claimant's citation of CPLR 3042 appears to have been in error as she failed to identify a demand for a bill of particulars to which defendant failed to comply.
Claimant's daughter Pamela Ann Rockwell died on May 22, 2009 while a resident of the Kenwood Residence ("Kenwood") in Bethlehem, New York. Kenwood is a facility owned and operated by the State of New York through its Office of Mental Retardation and Developmental Disabilities.Claimant alleges that her daughter, who had been diagnosed with moderate mental retardation and Down Syndrome, was the victim of several incidents of abuse and that her injuries and death were due to the negligent training and supervision of defendant's employees and the manner in which it operated and supervised the facility where she resided. Claimant served a Second Demand For Production Of Documents (claimant's Exhibit C) dated October 28, 2011 requesting, as relevant here, the following:
Defendant admitted this allegation in the claim (see claim, par. 6, and defendant's answer thereto).
"1. Any Report of Consumer Death folder, Report of Death memo and/or other documents relating to the death of Pamela Rockwell on May 22, 2009.
2. All documents, correspondence, notes and records relating to the administration of any medications or drugs to Pamela Rockwell during the period May 8, 2009 through and including May 22, 2009, including, but not limited to, any; Medication Charts, Receipt of Prescription Medication Forms, Prescription Medication Information Forms, Disposition of Used Drug Forms and Medication Administration Record Forms that cover any portion of that period in time . . .
4. The complete personnel files of the following individuals:
Larry Hill, Mary Ann Dennis, Zoricka Joseph, Jane Martinec and Latayia Hutcherson."
Defendant responded to claimant's discovery demand on November 22, 2011, objecting to claimant's first demand set forth above on the ground the requested documents are privileged under Education Law § 6527 (3) and Mental Hygiene Law § 29.29. Defendant asserts in response to the second demand that it provided the requested documents and, with respect to the fourth demand, it provided the requested personnel records for the Court's in camera review.
Education Law § 6527 (3) exempts from the disclosure provisions of CPLR article 31 records relating to the performance of medical or quality assurance reviews, including incident reports prepared pursuant to Mental Hygiene Law § 29.29 (see also Katherine F. v State of New York, 94 NY2d 200, 204 [1999]). Mental Hygiene Law § 29.29 requires the Commissioner of the Office for People with Developmental Disabilities to establish policies and procedures for investigating and reporting "accidents and injuries affecting patient health and welfare". Matters required to be reported to the facility director specifically include, inter alia, incidents involving violent behavior by patients or employees, frequency and severity of injuries occurring on the premises, medication errors and recommendations for corrective action (Mental Hygiene Law § 29.29 [1]). As stated by the Court of Appeals in Katherine F. v State of New York (94 NY2d at 204):
"The language of the statute is unequivocal. Education Law § 6527 (3) exempts three categories of documents from disclosure: records relating to medical review and quality assurance functions; records reflecting 'participation in a medical and dental malpractice prevention program;' and reports required by the Department of Health pursuant to Public Health Law § 2805-l , including incident reports prepared pursuant to Mental Hygiene Law § 29.29."
The purpose of the privilege is to "promote the quality of care through self-review without fear of legal reprisal" (Katherine F. v State of New York, 94 NY2d at 205). It is the burden of the party "seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes" (Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 46 [2004]; LaPierre v Jewish Bd. of Family & Children Servs., Inc., 47 AD3d 896, 896 [2008]). "In order to assert the privilege, '[a facility] is required, at a minimum, to show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure' " (Kivlehan v Waltner, 36 AD3d 597, 599 [2007] [citation omitted]; see also Stalker v Abraham, 69 AD3d 1172, 1173 [2010]).
Defendant in the instant matter submitted an affidavit from Marcia J. Coyle-Ellis who is employed by the New York State Office for People With Developmental Disabilities (OPWDD) as a Treatment Team Leader and Incident Manager. Ms. Coyle-Ellis avers that a total of seven pages contained in the "Consumer Death Folder" were withheld from discovery. One such report is a two-page "OMR 147 Incident Report" used to document reportable incidents (affidavit of Marcia J. Coyle-Ellis, ¶ 2). This report was sent to both the Commission on Quality Care as well as the Special Review Committee, which was "created to ensure OPWDD was in compliance with Mental Hygiene Law 29.29" (Id. at ¶ 4). The other document is a five-page "Form QCC-100 Report of Death" prepared pursuant to Mental Hygiene Law § 45.19and forwarded only to the Commission on Quality Care (Id. at ¶ 7). Neither of the reports were submitted for the courts in camera inspection, however, and a responsible determination regarding application of the privilege cannot be based solely upon defendant's generalized description of the nature of the documents and the purpose for which they were generated (Leardi v Lutheran Med. Ctr., 67 AD3d 651 [2009]; Fray v Fulton Commons Care Ctr., Inc., 51 AD3d 968 [2008]; Chardavoyne v Cohen, 56 AD3d 508 [2008]; Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135 [2007]). Accordingly, absent waiver, an in camera inspection is necessary in order to determine whether the reports or any portions thereof are protected from disclosure by the quality assurance privilege.
It does not appear that reports of death prepared pursuant to Mental Hygiene Law § 45.19 are privileged under Education Law § 6527 (3).
Claimant's counsel contends that defendant waived the privilege by permitting him to review the reports together with other documents when he performed a document inspection on defendant's premises. Defendant counters this contention with an affidavit from Debra Musa-Cross who avers that:
"the Report of Consumer Death Folder is not part of the clinical record and was inadvertently placed with the clinical records at some point. It should not have been. Items in that file were not meant to be disclosed. During the course of the first file inspection by Claimant's Counsel, I recall leaving the room to obtain more of the clinical file for his review. When I returned, I believe he had already read the file. I stated, in sum and substance, that the file was inadvertently in with the clinical records, that the file is not part of the clinical records and that it is not a file we would disclose because we deem it privileged. The file was not intentionally turned over to Counsel. To be clear, I am alleging no wrongdoing on the part of Counsel" (affidavit of Debra Musa-Cross, ¶5).
The inadvertent disclosure of documents otherwise privileged does not effect a waiver of the privilege where the party asserting it acts promptly after discovering the disclosure to remedy the situation and the party who received the disclosure will suffer no undue prejudice should a protective order be granted (Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392 [1987]; see also New York Times Newspaper Div. of N.Y. Times Co. v Lehrer McGovern Bovis, 300 AD2d 169 [2002]; Curry Rd. v K-Mart Corp., 191 AD2d 905 [1993]). Here, the affidavit of Ms. Musa-Cross establishes that the disclosure of the reports was inadvertent and that claimant's counsel was advised of this fact immediately after the disclosure occurred. Moreover, claimant makes no argument that she will be prejudiced in the event disclosure of the documents is denied. Under these circumstances the Court concludes that the defendant's inadvertent disclosure of the reports at issue did not effect a waiver of any privilege which may attach by operation of Education Law § 6527 (3) and Mental Hygiene Law § 29.29. As a result, defendant is directed to submit to the Court the reports it claims are privileged for in camera review.
To the extent claimant seeks to compel compliance with her demand for all "records relating to the administration of any medications or drugs to Pamela Rockwell during the period May 8, 2009 through and including May 22, 2009 . . ." (claimant's Exhibit C, demand # 2), defendant represents that all such records have been provided.
Lastly, with respect to claimant's request for the personnel files of the four employees responsible for the decedent's care, the Personal Privacy Protection Law § 96 protects "any record of personal information" from disclosure absent certain circumstances or a court order (Personal Privacy Protection Law § [1] and [1] [k]). The personnel records of the individuals who were primarily responsible for the decedent's care are relevant only to the extent they relate to a cause of action for negligent hiring and/or training. Where it is undisputed that an employee was acting within the scope of his or her employment when the conduct giving rise to the claim occurred, a cause of action alleging negligent hiring and/or training may not be maintained (see Cheng Feng Fong v New York City Tr. Auth., 83 AD3d 642 [2011]; Leftenant v City of New York, 70 AD3d 596, 597 (2010); Passucci v Home Depot, Inc., 67 AD3d 1470 [2009], lv denied 72 AD3d 1658 [2010]). Here, however, claimant alleges not only that defendant is vicariously liable for the conduct of its employees, but that it was negligent in hiring and training those employees. Inasmuch as claimant is entitled to plead incompatible theories of recovery in the alternative (CPLR 3014), she sustained her burden of establishing the relevance of the requested personnel files (Pickering v State of New York, 30 AD3d 393 [2006]). Accordingly, defendant is directed to provide claimant's counsel with certified copies of those portions of the personnel records of Larry Hill, Mary Ann Dennis, Zoricka Joseph, Jane Martinec and Latayia Hutcherson dated prior to May 22, 2009. Defendant is directed to carefully redact the names of any consumers or patients (other than the decedent), social security numbers and bank account numbers.
Based on the foregoing, claimant's motion is granted to the extent of Ordering the defendant to provide the Court with certified copies of the documents it claims are privileged under Education Law § 6527 (3) within 15 days of the date this Decision and Order is filed and, further, to provide claimant's counsel with certified copies of its employees' personnel records, as indicated herein, within 30 days of the date this Decision and Order is filed.
The date by which the note of issue and certificate of readiness must be filed and served is hereby extended to July 1, 2012.
March 30, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated December 21, 2011;
2. Affidavit of Randall J. Ezick sworn to December 21, 2011 with exhibits;
3. Affirmation of Anthony Rotondi dated January 10, 2012;
4. Affidavit of Marcia J. Coyle-Ellis sworn to January 4, 2012;
5. Affidavit of Debra Musa-Cross sworn to January 4, 2012;
6. Affidavit of Randall J. Ezick sworn to January 13, 2012.