Although confidentiality of a health care provider’s quality-assurance materials (and the resulting privilege against discovery in litigation) is statutorily guaranteed,1 the scope of the protection and manner of asserting it have been limited by the courts. Lately, trial and appellate courts have become increasingly skeptical of defendants’ assertion of the privilege. This skepticism manifests itself in frequent denials of confidentiality protection. This, despite the absence of new guidance from the Court of Appeals. In fact, the Court of Appeals has been consistent and relatively broad in its application of the doctrine.
In the well-known cases of Katherine F. v. New York2 and Subpoena Duces Tecum Jane Doe,3 the court held unequivocally that documents are privileged if created in the course of the statutorily-mandated quality review process. The Court of Appeals’ parameters seemingly protect all of the substantive documents written by or for the quality-assurance committee in the performance of its functions. This is, of course, the legislative intent behind Public Health Law §2805 and Education Law §6527(3).4
