Plaintiff Steven Benacquista, the executor of the estate of Luigi Benacquista, moves for an order directing the defendant Mt. Sinai Hospital to provide plaintiff with a copy of the incident report prepared on or about April 26, 2003 or in the alternative for an order directing the hospital to provide the court with a copy of that report for in camera inspection to determine whether any portion of it is confidential and protected by a statutory privilege.

This is a medical malpractice action in which it is claimed, inter alia, that during surgery performed by codefendant Dr. Randall Griepp at Mt. Sinai on April 25 to repair an aortic arch and/or during surgery performed the following day to repair a leak around a suture area, the hospital was negligent in its use of a heating pad or blanket, resulting in a burn to the decedent's sacrum which allegedly served as a portal for the entry of bacteria which resulted in an infection leading to the patient's death. A note written by a Nurse Kim on April 26, 2003 indicates that the patient arrived from the operating room at 10:10 and that there was an "alteration in skin integrity", namely a circular 5 cm x 5 cm burned area in the sacrum with the blister intact. Kim's note further recited "[i]ncident report filled out. Will continue to monitor pt. closely". At her deposition Nurse Kim testified that she brought the burn to the attention of the supervisor, a nurse named "Shannon" whom Kim believed asked her to write an incident report. At her deposition Nurse Kim testified without objection to the question of what information she had put in the report that she could not remember but that she probably wrote down what she found, "maybe the size of it and where it was found." At her deposition Nurse Shannon Estavillo had [*2]no recollection of an incident report being prepared. Decedent's son and daughter testified that "Shannon" had informed them that the burn was caused by the heating pad used to regulate body temperature during surgery. The hospital's discharge summary by Physician Assistant Louise Davis stated, "intraoperatively he had burns from heating blanket on backside and buttocks." At his deposition, defendant surgeon Dr. Griepp testified that he did not believe the decedent had been burned and doubted that one could be burned by a heating blanket. His testimony suggested that he believed that the necrosis of the skin in the sacral area was caused by "sacral decubiti" (bed sores). Griepp EBT p. 118

In the January 5, 2006 preliminary conference order which antedates all of the aforementioned depositions defense counsel agreed to provide the incident report "relating to surgical injury on 4/25/03 to extent not privileged under Public Health Law & Education Law". Plaintiff's counsel now seeks a copy of that incident report. Defense counsel asserts that the incident report is privileged pursuant to Education Law § 6527(3) since it was produced pursuant to quality assurance and control measures. Defendants rely on the affidavit of Claudia Colgan, Mt. Sinai's Vice President for Quality Initiatives since 2006 (i.e. several years after the report in issue was generated). Colgan maintains that the hospital's Quality Assurance Program is a medical malpractice prevention program which was created to ensure that patients receive quality medical care and to improve patient care. Quality assurance activities according to Colgan include "performance improvement and proactive risk reduction and prevention". Colgan also asserts that she is familiar with the "broad range" of the hospital's quality assurance activities which include the review of incident reports, the development of "proposed courses of action to address problems identified, and the implementation of actions... to correct... problems." According to Colgan "[a]s explained below, incident reports not contained within the decedent's chart "pertaining to the patient's development of sacral burns, were prepared as part of the Hospital's Quality Assurance activities, and as such are confidential and privileged." It is not exactly clear to what Colgan was referring when she said "[a]s explained below" the incident reports not contained in the chart "were prepared as part of the Hospital's Quality Assurance activities," but the only statement thereafter in Colgan's affidavit that deals with the preparation of the incident report in issue is one noting that the report (which is on a pre-printed form) recites that it was prepared for the hospital's Quality Assurance Program and was confidential and protected from disclosure by Education Law 6527(3) and Public Health Law 2805-m. Colgan maintains that quality assurance information contained in incident reports is intended to remain confidential to promote open and honest "evaluation of medical practitioners and practices within the hospital environment." Colgan maintains that the hospital treats incident reports, such as the one in issue, as confidential and restricts access to them "to certain administrators and committee personnel." Who the administrators are or which committees they sit on is not revealed by Colgan.

As is relevant, Education Law § 6527(3) provides that "[n]either the proceedings nor the records relating to performance of a medical or quality assurance review function or participation in a medical malpractice prevention program nor any report required by the department of health pursuant to section twenty-eight hundred five-1 of the public health law... shall be subject to disclosure under article thirty-one of the civil practice law and rules." The purpose of this statute "is to promote the quality of care through self-review without fear of legal reprisal." Katherine F. v State, 94 NY2d 200, 205 The burden of demonstrating "that it has a [*3]review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that procedure" is on the hospital. See Bush v Dolan, 149 AD2d 799, 800-801; Kivlehan v Waltner, 36 AD3d 597; Orner v Mt. Sinai, 305 AD2d 307, 310; Van Caloen v Poglinco, 214 AD2d 555; Marte v Brooklyn Hospital Center, 9 AD3d 41, 46

Following a review of the relevant law and Colgan's affidavit and an in camera inspection of the incident report, I find that the hospital has failed to meet its burden of demonstrating that the incident report in issue was created "by or at the request of" a hospital quality assurance committee "for committee use" (Matter of Subpoena Duces Tecum to Doe, 99 NY2d 434, 441) or that it was used by a hospital quality assurance review committee. Orner, supra at 310 - 311; Bush supra at 800-801 Colgan, who obtained her position in 2006, does not purport to have knowledge of the hospital's quality assurance practices in 2003 when the incident report in issue was generated. Her assertion that the report was prepared for quality assurance purposes appears to be predicated solely on the fact that it was on a form that recited that it was so prepared. Colgan states that if an incident report were to be found in the decedent's chart it would not be exempt from disclosure but because it was not in his chart it is exempt, but she does not explain this distinction. While Colgan asserts that incident reports such as the one in issue are restricted to certain administrators and committee personnel, she does not state which type of administrators or which type of committee she is referring to or for what purposes a report would be used by the administrators or committee. She does not allege that the incident report was used solely for quality assurance purposes. Obviously multi-motivated reports would not be exempt. Vandenburgh v Columbia Memorial Hospital, 91 AD2d 710 Nor does Colgan indicate that the specific incident report in issue was ever reviewed by the hospital as part of its quality assurance activities. See Orner supra, at 310-311 Indeed a review of the entire incident report suggests that nothing was done with it after it was issued.

In light of the foregoing the motion is granted and the hospital is directed within 20 days of service of a copy of this order with notice of entry to furnish to plaintiff's counsel a copy of the incident report prepared by Nurse Kim.

The foregoing constitutes the order and decision of the court.

Dated: July 1, 2008

60 Centre Street

New York, NY

J.S.C.