New York Trial Court Suppresses Discovery of Physician's Personnel File on the Basis of Privilege7/09

In a recent decision, Judicial Hearing Officer Stanley Gartenstein of Nassau Supreme Court determined that a physician's personnel file was not discoverable in a matrimonial action where the physician's spouse suspected collusion in a limitation of the physician's privileges imposed by his department chair. In Stern v Stern (Nassau Supreme Court , Index No. 07/202572), the spouse brought an order to show cause seeking to hold the chairman in contempt of court for not disclosing the file. The matter was referred to JHO Gartenstein for in camera inspection of the file, and for a determination of whether the privilege afforded by New York Education Law §6527 (3) applied. This subsection exempts from disclosure: a. Those [documents] relating to medical review and quality assurance functions; b. Those reflecting participation in a medical review and quality assurance function and c. Reports required by a Department of Health pursuant to Public Health Law §2805-1, including incident reports prepared pursuant to §Mental Hygiene Law 29.29.

JHO Gartenstein determined that the physician's evaluations contained within the personnel file were privileged, citing Logue v Velez, 92 N.Y.2d 13, which stated that a physician's initial and renewal applications for privileges related to the quality assurance review function of a hospital and were therefore not discoverable. The decision was printed in the New York Law Journal on June 22, 2009.

We would be pleased to discuss the Stern decision in more detail at your convenience. Contact Patrick J. Brennan (pbrennan@fkbllp.com) for a more in-depth discussion of the opinion.

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