14 Jan Siegel – Is the QA Privilege Eroding?
Written by: Joshua T. Reece, Esq.
Edited by: Nicole A. Callahan, Esq.
At the end of 2021, the Appellate Division, Second Department revisited disclosure and New York’s Quality Assurance (“QA”) privilege in Siegel v. Snyder, No. 6612/2016, 2021 WL 6057821 (2d Dept. Dec. 22, 2021). The long-standing privilege shields from disclosure certain materials and statements related to hospital, medical/psychiatric facility, and nursing home programs intended to promote quality of care through self review. Under Siegel, the QA Privilege arguably has been circumscribed.
The primary statutory basis of the QA privilege is Education Law § 6527(3), which essentially provides that “[n]either the proceedings nor records relating to … perform[ing] a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program … shall be subject to disclosure ….” Adverse event reports to the Department of Health under Public Health Law § 2805-l, and the Department of Mental Hygiene under Mental Hygiene Law § 29.29, are also protected. Additionally, Public Health Law § 2805-m(2) affords confidentiality to these materials.
The Court of Appeals identified three categories of documents protected by the privilege: “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 …” Katherine K. v. State, 94 NY2d 200, 204 (1999). However, the QA privilege explicitly excludes “statements made by any person in attendance at [a QA] meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.” Education Law § 6527(3).
Defendants asserting the privilege bear the burden of demonstrating that it applies. Conclusory assertion of the privilege is insufficient. Ross v. Northern Westchester Hosp. Ass’n, 43 AD3d 1135, 1136 (2d Dept 2007). At a minimum, the facility must “show 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.” Bamberg-Taylor v. Strauch, 181 AD3d 432, 433 (1st Dept 2020) (citing Kivlehan v. Waltner, 36 AD3d 597 [2d Dept 2007]).
Recently, in Siegel, the court considered “whether a party asserting the [QA] privilege … has the burden of demonstrating that any statements made at such a meeting, claimed to be privileged, were made by a [non-party].” 2021 WL 6057821 at *1. In this case, the defendants moved for a protective order with respect to peer-review committee meeting minutes (excepting party statements) and submitted a proposed redaction. The Supreme Court, Nassau County denied the motion after an in camera review because it could not determine who made certain statements attributed to the “committee.” It concluded “that, without any indication … who specifically made the statements, it [could not] determine if [they] were privileged.” Id. at *2.
On appeal, the Second Department concluded that the defendants undisputedly “met their initial burden of demonstrating that the … minutes at issue were prepared in accordance with the relevant statutes … as they were created as part of a required quality-assurance review program ….” Id. at *6. However, the court went on to hold unanimously that notwithstanding meeting this burden, the defendants failed to establish entitlement to the privilege since they “fail[ed] to properly identify each speaker ….” Id. (emphasis added). The court denied that its holding expanded the party-statement exception to the QA privilege, stating that the holding “merely [wa]s in line with the well-settled principle that ‘the burden of establishing any right to protection is on the party asserting it.'” Id. at *7 (quoting Spectrum Sys. Int’l. Corp. v. Chemical Bank, 78 NY2d 371, 377 ).
Given this ruling, we can expect the plaintiff’s bar to aggressively pursue quality assurance and peer review materials in hopes that any documents contain statements unattributable to any one individual.