In Adams v. Bassett Healthcare Network, New York’s Appellate Division, Third Department directed disclosure of documents claimed to be privileged under the 2005 Patient Safety and Quality Improvement Act (PSQIA) in the state’s first appellate-level decision involving this federal protection from disclosure in litigation.
The Adams decision is expected to be the first of many appellate decisions in the state that concerns the federal privilege, as providers in ever increasing numbers continue to join Patient Safety Organizations (PSO) in an effort to further their quality improvement priorities. In adopting PSQIA’s framework for patient safety activities, providers become eligible for the PSQIA privilege protections of certain documents generated and used in connection with these efforts. Broadly speaking, documents qualify for protection under PSQIA if (1) those that are made as part of the provider’s patient safety evaluation system (“PSES”) for reporting to the provider’s PSO and are transmitted to the PSO for that purpose (42 U.S.C. § 299b–21(7)(A)(i)(I)); (2) developed by the PSO for patient safety activities (42 U.S.C. § 299b–21(7)(A)(i)(II)); or (3) memorializing the provider’s deliberations and analysis within the context of PSES (42 U.S.C. § 299b–21(7)(A)(ii).
In Adams, the defendant provider claimed privilege under the New York State Quality Assurance privilege of Education Law § 6527 and PSQIA. The Third Department denied the state privilege, finding that the provider failed to establish that the documents at issue were actually submitted to and used by its quality assurance committee, which is a necessary element of the entitlement to the privilege.
As to the PSQIA privilege, the Adams defendant claimed protections only under the “deliberations and analysis” prong of PSQIA’s privilege framework. The Third Department noted it as “doubtful” that the PSQIA applies at all since the case involved state law claims, but this observation was likely the result of the fact that the parties did not brief the preemption issue. In any event, the court did proceed with its analysis assuming that the statute applies but held that the defendant did not establish an entitlement to its privilege protections because the submissions did not “establish[] that the[] particular reports [at issue] were actually provided to and reviewed by a PSO.” Adams, 2026 N.Y. Slip. Op. 02706 at 2. It is notable in this regard that while under the “reporting” prong of the PSQIA (codified at subsection i of 42 U.S.C. § 299b–21(7)(A)), the statute specifically requires that the documents be prepared for and actually reported to the PSO, the “deliberations and analysis” prong (codified in subsection ii) contains no such requirement.
It is not yet clear whether the defendant will pursue further proceedings with respect to this decision.
While in this Adams case the Third Department denied the defendant’s motion for a protective order, its decision turned in large part on the evidentiary support for entitlement to the privilege. To the extent that this decision is governed by issues of law (including preemption and the elements required to establish any of the three disparate grounds for the PSQIA privilege), future appellate cases in the state are expected to revisit and clarify these issues.
