Upon the Motion submitted herein on 3/24/06 for an Order compelling defendant to produce copies of incident reports and the Order regarding said motion, dated May 26, 2006 , which directed defendant Brookhaven Memorial Hospital Center, to submit the patient incident reports for an in camera review; and the patient incident reports having been submitted herein pursuant to said Order, it is

ORDERED that after conducting an in camera review of the patient incident reports pursuant to the Order dated May 26, 2006, the Court finds that defendant, Brookhaven Memorial Hospital ("Hospital"), failed to meet its burden of establishing that those reports are confidential and protected from disclosure by Education Law §6527(3) and Public Health Law §2805-m and therefore, are subject to discovery under Article 31 of the CPLR; and it is further

ORDERED that counsel for the Hospital is directed to serve a copy of each patient incident report upon counsel for the plaintiff and co-defendant within twenty (20) days of the date of this Order; and it is further

ORDERED that counsel for the Hospital is directed to serve a copy of this Order with Notice of Entry upon the respective counsel within twenty (20) days of the date herein and thereafter file the affidavit(s) of service with the Clerk of the Court.

After conducting an in camera review of the patient incident records submitted pursuant to Order dated May 26, 2006, the Court finds that the records submitted are subject to disclosure. It is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes (see Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 779 NYS2d 82 [2d Dept 2004]). Here, upon examining the submitted documents and re-examining the conclusory allegations contained in the affidavit of the Director of Risk Management, Joanne Lent, Esq., there is no showing that the Hospital actually prepared any committee review incident reports for the Department of Health as required under Public Health Law §2805-l (see Maisch v Millard Fillmore Hosps., 262 AD2d 1017, 692 NYS2d 536 [4th Dept 1999]). In relevant part, confidentiality is required pursuant to Public Health Law §2805-m, only for "the reports required pursuant to section twenty-eight hundred five-l of this article." Therefore, as in Marte v Brooklyn Hosp. Ctr., 9 AD3d at 46, supra , "[t]he Hospital has failed to establish its burden that any documents were prepared under Public Health Law §2805-l and/or Education Law §6527(3)."

Education Law §6527(3) pertains to the practice of medicine and affords a broader protection beyond that set forth in Public Health Law §2805-m. As described in Van Bergen v Long Beach Med. Ctr., 277 AD2d 374, 717 NYS2d 191 (2d Dept 2000), "Education Law §6527(3) is designed to encourage peer review of physicians by guaranteeing confidentiality to those persons performing the review function." "The purpose of the discovery exclusion is to enhance the objectivity of the review process' and to assure that medical review committees may frankly and objectively analyze [*2]the quality of health services rendered' by hospitals (see, Mem of Assembly Rules Comm, Bill Jacket, L 1971, ch 990, at 6)" (Logue v Velez, 92 NY2d 13, 17, 677 NYS2d 6 [1998]). It covers the liability of individuals who serve on certain delineated medical review committees. Aside from incident reports required by the Department of Health under Public Health Law §2805-l, it also exempts from disclosure records relating to medical review and quality assurance functions of the delineated committees and records reflecting participation in a medical and dental malpractice prevention program.

In reading Education Law §6527(3) in its entirety, as this Court must, it appears that the "medical or a quality review function" that is privileged is that undertaken by "any medical review committee or subcommittee ... of a local, county or state medical, dental, podiatry or optometrical society, any such society itself, a professional standards review organization or an individual" (Education Law §6527[3][c]), who performs such function.

The Hospital has failed to establish that the patient incident reports were generated in connection with a quality assurance review function pursuant to Education Law §6527(3) or a malpractice prevention program pursuant to Public Health Law §2805-j. The documents are not entitled to statutory confidentiality and are subject to disclosure (see Maisch v Millard Fillmore Hosps., 262 AD2d 1017, supra ; Little v Highland Hosp. of Rochester, 280 AD2d 908, 721 NYS2d 189 [4th Dept 2001]; Mong v Children's Hosp. of Buffalo, 259 AD2d1038, 688 NYS2d 353 [4th 1999]).

Here, the reports in question are not assessing the care provided to the injured plaintiff but simply reporting an incident that falls under the confines of Public Health Law §2805-l(2)(a). It further appears that the reports were made in the regular course of business pursuant to 10 NYCRR §405.8(b)(1) (see Vandenburgh v Columbia Mem. Hosp., 91 AD2d 710, 457 NYS2d 591 [3d Dept 1982]). A review of the patient incident reports does not reveal a quality assurance review function that is privileged under Education Law §6527(3) (cf. Spradley v Pergament Home Ctrs., 261 AD2d 391, 689 NYS2d 516 [2d Dept 1999]). Where a report is found to be multi-motivated,' immunity is not warranted (see Friend v SDTC-The Center for Discovery, Inc., 13 AD3d 827, 787 NYS2d 163 [3d Dept 2004]).

To the extent that this Court's May 26, 2006 Order is in conflict with this determination, the prior Order is not controlling. The records delivered to the Court are being returned to counsel for the Hospital, as per counsel's instructions.

Accordingly, the application to obtain the records is granted in its entirety. This constitutes the Order and decision of the Court.

DATED: ____________________________________________ [*3]

THOMAS F. WHELAN, J.S.C.