NY: 82 year-old fell from her hospital bed: hospital'refused to disclose' no. of prior falls.

CASE FACTS: Jacqueline Ross brought suit against Northern Westchester Hospital Association, d/b/a Northern Westchester Hospital, arising out of the fall of an 82 year-old woman, who, while a patient at the hospital, fell from her hospital bed, sustaining injuries. The patient subsequently died. In the process of discovery, the plaintiff propounded many interrogatories to the defendant hospital. One interrogatory, which the hospital refused to respond to, and which is the heart of the case was an interrogatory in which the plaintiff requested the hospital to disclose how many patients had fallen from their beds during the three years preceding the decedent's fall from her bed. The hospital refused to answer the interrogatory on the grounds of "confidentiality." The plaintiff" filed a motion to compel the hospital to answer the interrogatory. The trial court denied the plaintiff's motion to compel. The plaintiff appealed

COURT'S OPINION: The Court of Appeals of New York held that since it was impossible (upon the trial court's record) to ascertain what documents were in the defendant's possession, and determine the nature of those documents, the court had no alternative but to remit the case back to the trial court to determine, after an in camera review, which of the documents, or parts thereof, if any, were protected from disclosure by the confidentiality privilege claimed by the hospital. The court recognized that under the proper circumstances certain documents may not be subject to discovery by an adverse party. Without doubt, the court would have had no problem agreeing with the hospital, if the documents in question were peer review related documents, which are, in fact, privileged. The court noted that the hospital sought to invoke the New York law which provides for such privilege for peer review documents. Thus, the issue was whether the disclosure of the number of falls the hospital had documented during the three years preceding the decedent's fall, was subject to any such privilege. The court noted that while the hospital, which sought to claim that the information sought by the plaintiff was privileged, merely asserted that a privilege applied to the documents containing the information sought by the plaintiff, without making any attempt to show why, in fact, such documents or information should be privileged. Editor's Note: Hospitals would be prudent to produce information and documents that are not privileged instead of playing games with opposing parties, and more importantly, the courts. The position taken by the hospital leaves one to wonder why it was not willing to answer the question propounded. Did it have something to hide? Ross v. Northern Westchester Hospital Association, 2007 NYAPP 2007-06972 (09125/2007) -NY

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.