Defendants Brookdale University Hospital and Medical Center (Brookdale) and Hong Kim, M.D. (Kim) move by Order to Show Cause, pursuant to CPLR § 3103, for a protective order against disclosure of documents demanded by plaintiff relating to accreditation of defendants' urology residency program by the Accreditation Council for Graduate Medical Education (ACGME) and for a protective order against plaintiff's deposing Kim regarding Brookdale's loss of such accreditation. Defendants also request vacatur, pursuant to CPLR § 5015 and 5701, of this Court's prior Order of September 13, 2006 directing Kim to answer such questions.

Commencing on July 1, 1994, plaintiff was appointed to a residency in urology at defendant hospital. Initially for one year, plaintiff's appointment was renewed annually for four additional years, to conclude on June 30, 1999. Dr. Kim supervised the residency program, the [*2]conditions of which were contained in a written Resident Contract. The Contract provided that the program would meet ACGME standards for graduate medical education.

Brookdale's residency program required successful completion of two years of preliminary surgical training, which plaintiff completed, followed by four years in the urology program. In late 1998, as plaintiff was engaged in his third year as a senior urology resident, having completed nearly 80% of his residency at Brookdale and expecting to serve as Chief Urology Resident in his fourth and final year, a dispute arose between plaintiff and his direct supervisor Dr. Kim regarding plaintiff's performance of a surgical procedure. Plaintiff was notified, in January 1999, that his performance was inadequate and that his residency contract would not be renewed. After several attempts to reverse Dr. Kim's decision, on March 15, 1999, plaintiff resigned.

On September 3, 2003 plaintiff commenced the instant action. The complaint alleges that defendants breached the Resident Contract by terminating him in bad faith and by failing to comply with the ACGME standards for accreditation in several specific respects including the failure to regularly review his work and give him notice of his deficiencies. The complaint also seeks damages for defamation in the publication of the reports of his performance to the Federation Credentials Verification Service, which serves the medical community as a whole, and to the New Jersey State Board of Medical Examiners which delayed the granting of his license. In his Fifth Cause of Action, plaintiff alleges that, beginning in 1997 or 1998, Brookdale made "misrepresentations" regarding its compliance with ACGME "Essentials of Accredited Residencies in Graduate Medical Education" in order to secure its continued accreditation and that Brookdale's alleged lack of compliance with those standards directly impacted plaintiff's career. Although Brookdale was re-accredited as a result of the review conducted in 1998 and has never "lost" accreditation, it is not disputed that Brookdale's urology residency program was placed on probation in December, 2004, a status which has continued to the present.

Defendants seek a protective order respecting plaintiff's demand for disclosure of documents exchanged between the residency program and ACGME during the 1998 accreditation review and vacature of this Court's Order of September 13, 2006, permitting an inquiry "as to any loss of accreditation and the reasons given for such loss" in the course of Dr. Kim's deposition. Defendants seek a protective order precluding such inquiry.

Defendants contend that such relief is warranted pursuant to CPLR § 3103 because: 1) the documents are confidential under ACGME guidelines; 2) defendants have a privilege against such disclosure; and 3) "there is no basis . . . to abrogate the confidentiality of the accreditation review process".

At oral argument, this Court agreed to review the requested documents in camera to determine their relevance to the issues herein. The Court declined to stay its prior direction to Dr. Kim and Brookdale to respond to questions regarding "any loss of accreditation", but defendants have persisted in asserting objections based upon privilege and have thwarted such inquiry.

Dr. Kim was deposed on July 26, 2006, and gave testimony regarding the ACGME five year accreditation review procedures, including the examination by the ACGME reviewer of plaintiff's file during which, according to Dr. Kim, the reviewing physician suggested that plaintiff's performance was inferior and that "decision" needed to be made whether to permit him [*3]to continue in the program. Dr. Kim also described the program information supplied in the course of the review. These documents were requested by plaintiff at the deposition and subsequently by formal demand in Plaintiff's Second Request for Production of Documents dated July 31, 2006. It is these documents that defendants seek to protect.

Although defendants insist that, in seeking to discover these documents, plaintiff is seeking a review by this Court of ACGME's determinations regarding accreditation, this is clearly not the case. Such argument is completely without merit. Nor is ACGME's joindre as a party necessary to the decision of the discovery issues raised here. Plaintiff does not seek documents that are exclusively within ACGME's control, but only documents that are business records of defendants. Moreover, the direction to disclose such documents does not determine their admissibility at trial.

Brookdale was fully accredited in 1999 based upon the review procedure performed during plaintiff's tenure as a resident. Reviews are routinely conducted by ACGME every five years.^[FN1] In fact, ACGME did not review Brookdale's program in 2003 as expected, but, based upon its review conducted in February 2004, ACGME changed Brookdale's status to probationary accreditation. Defendants argue that the representations made by Brookdale in 1999 are not relevant to the action taken by ACGME in 2004. It is noted, however, that the letter to Dr. Kim from ACGME dated January 11, 1999, in which full accreditation was continued, suggests that certain "areas should be addressed at the time of the next site visit", including the development of "educational strategies to improve . . . performance on the ABU Examination" and the distribution to residents of "goals and objectives for each level of the program and each major assignment

[ ]." The letter states: "It is the policy of the ACGME and of the Residency Review Committee that each time an action is taken regarding the accreditation status of a program, the residents must be notified." Contrary to defendants' arguments that ACGME's determinations are to be kept "confidential" and not disclosed to the affected residents, in fact, ACGME rules suggest that disclosure to a resident is appropriate.

Section 3101 (a) of the CPLR mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action" by all parties. This language has been interpreted liberally to include all relevant information "bearing on the controversy". Allen v. Cromwell-Collier Publishing Co., 21 NY2d 403, 406 (1968). See also, Twenty-Four Hour Fuel Oil Corp.v. Hunter Ambulance, Inc., 226 AD2d 175 (1st Dep't, 1996). ("Liberal discovery is favored and pretrial disclosure extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof").

Plaintiff's Resident Agreement provided that academic discipline or dismissal from the Residency Program would entitle the resident to due process (¶ 13.1).^[FN2] ACGME accreditation [*4]"was developed to protect the interests of residents, benefit the public, and improve the quality of teaching, learning, research, and professional practice" (ACGME "guidelines ¶. I (D), Exhibit S to Order to Show Cause).^[FN3] From the Court's in camera review of the documents submitted for ACGME evaluation in 1999,it is apparent that regular review of a resident's performance and timely notice of deficiencies was an important consideration for accreditation. Plaintiff has alleged that he was not advised of his inadequacies so as to be afforded an opportunity to correct them prior to being notified that he would not be continued in the urology Residency Program for a fourth and final year.^[FN4] Since plaintiff was apparently, though unwittingly, a participant in the 1999 accreditation process, the documents he seeks are quite relevant to his complaint.

Defendants insist that ACGME confidentiality standards create a privilege for their protection of the subject documents. However, as defined in ACGME's own guidelines (¶I (H) (3) (a) and (L) (4) ( c)) : "Confidentiality means that the ACGME and its committees will not disclose the documents listed in this section nor the information contained therein, except as required for ACGME accreditation purposes, or as may be required legally, . . ." Nothing in this statement suggests that defendants may not disclose the documents relating to its own accreditation application.

Defendants also rely on Public Health Law § 2805-m and Education Law § 6527 (3) as preventing disclosure of the documents demanded or responding to the deposition inquiries relating to the more recent review process. These statutes protect from CPLR Article 31 disclosure quality assurance review proceedings related to patient care, including alleged incidents of malpractice. Education Law § 6527 (3) expressly provides that it is not applicable to "statements made by any person . . . who is a party to an action or proceeding the subject matter of which was reviewed." Since Brookdale's residency program, directed by Dr. Kim, was the subject of review, it would appear that plaintiff's demands would be exempted from the projection of the statute by its own terms. Moreover, the cited statutes relate specifically to quality assurance and are intended to ensure candor in hospital-based care review and malpractice prevention proceedings which are mandated by Public Health Law § 2805-j. Logue v. Velez, 92 NY2d 13, 16-17 (1998). See also, Powers v. Faxton Hospital, 23 AD3d 1105 (4th Dep't, 2005). The accreditation of a hospital residency program by an independent private association is unrelated to the statutory purpose. As noted in its own guidelines, ACGME's purpose is to protect residents and "the quality of teaching, learning, research, and professional practice." Patient care is not among its stated concerns. As noted in Interfaith Medical Center v. Sabiston, (136 AD2d at 243), "[s]uch an accreditation involves a determination of the sufficiency [*5]of the program as an educational enterprise." The fact that medical residency programs are subject to regulation by the Board of Regents and the Commissioner of Education (see Interfaith v. Sabiston), does not establish defendants' right to a protective order pursuant to the Public Health and Education Laws as defendants contend.

This Court has reviewed in camera the materials sought to be discovered in Plaintiff's Second Request For Production of Documents, all of which were apparently referred to in Dr. Kim's deposition of July 26, 2006. The documents relate to Brookdale's review and accreditation by ACGME in 1998-1999 during plaintiff's tenure as a resident and during the period defendants contend plaintiff received "poor reviews" leading to the decision not to renew his contract for his fourth and final year as a urology resident. None of the documents reviewed in camera appear to be of a particularly confidential nature. The Court believes that much of the information contained therein, such as the general description of the residency program, the credentials of the faculty and various statistical information, could be easily obtained or gleaned from information publicly disseminated. To the extent that information concerning any resident other than plaintiff is revealed in the materials, the name of such resident and other identifying details should be redacted.

Although defendants may ultimately prevail on the merits, it is apparent that the documents requested are relevant to plaintiff's suit and defendants have failed to demonstrate any prejudice to them or disadvantage to any person sufficient to grant a protective order pursuant to CPLR § 3103. Nor have defendants met the standard for a protective order precluding inquiry of Dr. Kim regarding the withholding of full accreditation in 2004. See, Harthheimer v. Clipper, 288 AD2d 263 (2d Dep't, 2001). This Court's prior order of September 13, 2006, permitting inquiry "as to any loss of accreditation and the reasons given for such loss" was, as defendants suggest, entered in the belief that Brookdale had completely lost its accreditation. However, demotion to probationary accreditation does constitute a "loss of accreditation" and the Court's order was unequivocal in directing responses to plaintiff's inquiry regarding the reasons for the downgrade. At the very least, given Dr. Kim's status in the case, such inquiry may be relevant to his credibility.

Despite this Court's prior direction, defendants have refused to comply. Defendants make clear that they intend to appeal any adverse ruling by this Court. This Court will not stay the direction to produce the documents demanded or the direction given to Dr. Kim to answer the questions posed pending such appeal. In the absence of a stay entered by the Appellate Division, defendants are directed to turn over such documents forthwith and to produce Dr. Kim for further deposition within thirty days of the date of this decision or be held in contempt.

The motion for protective orders is denied, as is the motion to vacate this Court's Order of September 13, 2006.

The matter has been adjourned to February 14, 2007. Plaintiff's unexplained default in appearing as scheduled on January 31, 2007 is noted. Any failure to appear on February 14 will be treated as a further default warranting

appropriate sanctions which may include dismissal of the action. The attorneys are not to continue their barrage of letters containing diatribes against each other. No letters will be accepted by the Court.

The foregoing constitutes the decision and order of the Court.

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J.S.C.