SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

228 

CA 10-02001 

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.

 

IN THE MATTER OF MARGARET A. CONIBER, AS 

EXECUTRIX OF THE ESTATE OF GEORGE C. CONIBER, 

DECEASED, AND MARGARET A. CONIBER, INDIVIDUALLY, 

PLAINTIFF-APPELLANT,

 

V MEMORANDUM AND ORDER

UNITED MEMORIAL MEDICAL CENTER, 

DEFENDANT-RESPONDENT. 

LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (LAURA C. DOOLITTLE OF

COUNSEL), FOR PLAINTIFF-APPELLANT. 

FELDMAN KIEFFER, LLP, BUFFALO (BRIAN BOGNER OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Genesee County (Robert

C. Noonan, A.J.), entered July 6, 2010 in a wrongful death action. 

The order, insofar as appealed from, denied the motion of plaintiff to

compel the production of certain hospital records. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting that part of plaintiff’s

motion with respect to the document entitled “Medication Event Report

Form” and directing defendant to disclose that document and as

modified the order is affirmed without costs. 

Memorandum: Plaintiff, individually and as executrix of the

estate of her husband (decedent), commenced this action seeking

damages for his wrongful death and conscious pain and suffering

allegedly caused by defendant’s improper administration of medication

to decedent. Plaintiff also alleged that defendant was negligent in

failing to document the improper administration of medication and a

fall sustained by decedent while he was hospitalized. Plaintiff moved

to compel defendant to provide certain incident reports, and defendant

opposed the motion on the ground that the reports were privileged

pursuant to Education Law § 6527 (3) and Public Health Law § 2805-m

(2) because they were created as part of its quality assurance review

function. 

We conclude that Supreme Court, following its in camera

inspection, abused its discretion in denying plaintiff’s motion with

respect to the document entitled “Medication Event Report Form”

(hereafter, form), and we therefore modify the order by directing
-2- 228 

CA 10-02001 

defendant to disclose that document. Defendant failed to establish

that the form was “ ‘generated in connection with a quality assurance

review function pursuant to Education Law § 6527 (3) or a malpractice

prevention program pursuant to Public Health Law § 2805-j’ ” (Learned

v Faxton-St. Luke’s Healthcare, 70 AD3d 1398, 1399; see Aldridge v

Brodman, 49 AD3d 1192, 1193-1194). The form does not appear to be

made for quality assurance review purposes, and the conclusory

statement in the affidavit submitted by defendant’s Director of

Quality Assurance that all of the documents in question “were prepared

pursuant to [defendant’s] quality assurance review function” is

“insufficient to demonstrate that [the form] . . . [was] actually

generated at the behest of [defendant’s] Quality Assurance Department”

(Kivlehan v Waltner, 36 AD3d 597, 599). 

We further conclude, however, that the court properly denied

plaintiff’s motion with respect to the remaining documents (see Little

v Hicks, 236 AD2d 794).

Entered: February 10, 2011 Patricia L. Morgan

Clerk of the Court