Recently, in Siegel v. Snyder, Slip.Op. 07624, New York’s Appellate Division, Second Department interpreted New York’s peer review/quality assurance confidentiality statute in a manner that may require modifications to the standard documentation of such meetings.  New York’s Education Law 6527(3) shields from disclosure “the proceedings [and] the records relating to performance of a medical or a quality assurance review function or participation in a medical . . . malpractice prevention program,” as well as testimony of any person in attendance at such a meeting when a medical or quality assurance review function or medical malpractice prevention program was performed (see Logue v Velez, 92 NY2d 13, 16-17).  Public Health Law 2805-m(2) affords similar protection from disclosure for “records, documentation or committee actions or records” required by law, which includes peer review activity.

However, both Education Law 6527(3) and Public Health Law 2805-m(2) provide for identical exceptions for the discovery of party statements, that is, “statements made by any person in attendance at such a [peer review/quality assurance] meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.”  The Siegel Court noted that “those persons whose conduct is subject to review were not intended to benefit from the protections afforded by the statutes.”

As a result of these rules, many hospitals did not identify the speaker and in minutes referred generally to discussions among the committee.  In ruling that the failure to identify the speaker requires the disclosure of all statements made at the meeting, the Court concluded: “We find that as the party seeking to assert the quality-assurance privilege, it was the defendants’ burden to demonstrate that the statements they sought to withhold from disclosure were not party statements subject to disclosure . . . By failing to properly identify each speaker, the defendants have failed to establish its [sic] entitlement to the quality-assurance privilege as they have not met their burden of demonstrating that the statements were not made by a party.”  The Court noted that to hold otherwise would incentivize hospitals not to identify speakers at such meetings, which would subvert the statutory intent.

While this decision is currently only binding in the Second Department in New York (Long Island (including Brooklyn and Queens) and the northern suburbs of New York City), the issue will likely be raised in other departments and is likely to be followed (particularly in the First Department (New York City except Brooklyn and Queens) until and unless reversed by the Court of Appeals.  

Many states have laws similar to New York, and hospitals in those states should review their practices to assure protection for the peer review/quality assurance privilege where possible.

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Photo of Edward S. Kornreich Edward S. Kornreich

Past long-standing chair of Proskauer’s Health Care Department, Ed Kornreich is a recognized authority on the legal, regulatory and business issues related to health care services.

Ed works primarily on health care transactions, regulatory compliance, health care payment and governance issues for varied…

Past long-standing chair of Proskauer’s Health Care Department, Ed Kornreich is a recognized authority on the legal, regulatory and business issues related to health care services.

Ed works primarily on health care transactions, regulatory compliance, health care payment and governance issues for varied providers (both for-profit and not-for-profit), vendors, GPOs, distributors and entrepreneurs. His approach combines sensitivity to meeting regulatory business goals with a comprehensive and realistic assessment of the health care environment, and he is particularly experienced in dealing with the complex issues related to integrated health care systems.

After working for the Legal Aid Society, Ed entered private practice, where he helped represent a major public hospital corporation in a series of reimbursement disputes with the state and federal governments, and counseled New York area hospitals and nursing homes on reimbursement and operational issues. Thereafter, Ed served as General Counsel of St. Luke’s-Roosevelt Hospital Center, one of the largest teaching hospitals in New York. After leaving St. Luke’s-Roosevelt Hospital Center, Ed joined Proskauer as a Partner in 1990.

Ed frequently writes and lectures on Medicare and Medicaid reimbursement, health care integration, not-for-profit law and corporate governance issues, and the application of federal and state anti-kickback and “Stark” laws to health care transactions.