Morshed v. St. Barnabus Hospital et al.

Filing 58

OPINION AND ORDER: For the foregoing reasons, Defendants' assertions of privilege as to the ten documents reviewed in camera are OVERRULED. Defendants shall produce the documents at issue to Plaintiff no later than February 8, 2017, and th e parties shall apply the reasoning of this opinion to the remaining documents. If disputes over whether disclosure of other individual documents remain, the parties shall raise the disputes promptly with the Court. (Signed by Judge Lorna G. Schofield on 2/10/2017) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
MONZUR MORSHED,
:
Plaintiff,
:
-against:
:
:
ST. BARNABAS HOSPITAL, et al.,
Defendants. :
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2/10/2017

16 Civ. 2862 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
In April 2016, Plaintiff Monzur Morshed filed this action against St. Barnabas Hospital
and nine individual Defendants, alleging that he was subjected to sexual harassment, a hostile
work environment and discrimination in violation of federal, state and local law. Currently
before the Court are Defendants’ assertions of privilege as to ten representative documents that
the Court has reviewed in camera. Defendants argue that the documents are privileged under the
self-critical analysis privilege, peer review privilege and quality assurance privileges. For the
reasons discussed below, Defendants’ assertions of privilege as to the ten representative
documents are overruled.
BACKGROUND
On September 30, 2016, Defendants were directed to produce a privilege log and Plaintiff
was ordered to identify ten entries for the Court to adjudicate. The intention was that rulings on
these ten documents will allow the parties to extrapolate which documents are privileged and
which are not, and for discovery to proceed. Following a second conference regarding the
selection of the ten documents, Plaintiff identified documents and Defendants filed a letter and
memorandum of law, and submitted a privilege log and the documents ex parte for in camera
review. By Order dated December 21, 2016, Defendants were directed to supplement their

memorandum of law and Plaintiff was ordered to file a memorandum of law in response to
Defendants’ memorandum. Defendants filed a supplemental memorandum of law on January 3,
2017. Plaintiff did not submit a memorandum of law.
The ten documents identified include emails between and among physicians who
supervised and evaluated Plaintiff during his residency, discussing Plaintiff’s performance in the
residency program; hospital preceptor evaluations of Plaintiff; an evaluation of Plaintiff’s
performance in one of his rotations; a New York College of Osteopathic Medicine Educational
Consortium Annual Trainee Assessment for Plaintiff; and an email from a medical placement
company requesting a reference from the St. Barnabas hospital for Plaintiff. Defendants assert
that the all of the documents are protected from discovery on the same grounds: Rule 501 of the
Federal Rules of Evidence; Rule 26 of the Federal Rules of Civil Procedure; the peer review
privilege and quality assurance privilege; N.Y. Public Health Law § 2805-m; N.Y. Education
Law § 6527; the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 1111; the
Patient Safety and Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b-21 to b-26; the
critical self-analysis privilege; and N.Y. Comp. Codes R. & Regs. tit. 10, § 405.4.
DISCUSSION
The ten documents submitted for review in camera are subject to disclosure and not
privileged on the grounds asserted. Federal Rule of Civil Procedure 26(b)(1) permits “discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportionatal to the needs of the case.”
A.

New York Education Law § 6527 and Public Health Law § 2805-m

Defendants’ argument that the ten documents at issue are privileged and protected from
disclosure pursuant to New York Education Law §6527 and Public Health Law § 2805-m fails as
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these laws are inapplicable. This action is brought pursuant to both federal civil rights laws and
state and city human rights laws. “[C]ourts consistently have held that the asserted privileges are
governed by the principles of federal law” where the action is in federal court and the evidence
sought is relevant to both federal and state law claims. von Bulow by Auersperg v. von Bulow,
811 F.2d 136, 141 (2d Cir. 1987); accord Steinberg v. Mount Sinai Med. Ctr., Inc., No. 12 Civ.
51, 2014 WL 1311572, at * 2 (S.D.N.Y. Mar. 31, 2014).
B.

Federal Rule of Evidence 501, Federal Common Law and Federal Rule of
Civil Procedure 26

Defendants appear to argue for recognition of a peer review privilege, quality assurance
privilege and self-critical analysis privilege recognized by state law, invoking Federal Rule of
Evidence 501 and “the strong policy of comity between federal and state courts.” This argument
is unavailing.
Rule 501 provides that “[t]he common law -- as interpreted by United States courts in the
light of reason and experience -- governs a claim of privilege unless any of the following
provides otherwise: the United States Constitution; a federal statue; or rules prescribed by the
Supreme Court.” Fed. R. Evid. 501. In determining federal privilege law, Defendants argue that
Rule 501 affords a district court “flexibility to develop rules of privilege on a case-by-case
basis.”
“The policy decisions of the States bear on the question whether federal courts should
recognize a new privilege or amend the coverage of an existing one.” Jaffee v. Redmond, 518
U.S. 1, 12–13 (1996). However, the strong policy of comity is not dispositive. “While as a
matter of comity federal courts accord deference to state-created privileges, such privileges are
construed narrowly, and must yield when outweighed by a federal interest in presenting relevant
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information to a trier of fact.” United States v. 31-33 York St., 930 F.2d 139, 141 (2d Cir. 1991).
Although Rule 501 “manifests a congressional desire not to freeze the law of privilege but rather
to provide the courts with flexibility to develop rules of privilege on a case-by-case basis,” the
Supreme Court has cautioned against recognizing a privilege “in an area where it appears that
Congress ha[d] considered the relevant competing concerns but has not provided the privilege
itself.” Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990).
In weighing the relevant factors, some courts have used a balancing test to determine
claims of privilege based on state laws and where no federal rule governs the privilege asserted.
Courts in the Eastern District of New York have outlined a four factor test balancing:
1) the need for the information to enforce federal substantive and procedural
policies; 2) the importance of the state policy that supports the rule of privilege
and the likelihood that recognizing the privilege will advance the state policy; 3)
the special need of the litigant who seeks the information; and 4) and adverse
impact on local policy if the privilege is not recognized.
Sabharwal v. Mount Sinai Med. Ctr., No. 09 Civ. 1950, 2011 WL 477693, at *2 (E.D.N.Y. Feb.
4, 2011).
Here, Defendants invoke the peer review privilege, the quality assurance privilege and
the self-critical analysis privilege. These do not appear to be separate privileges.1 “Medical peer
review privilege evolved out of the broader self-critical analysis privilege, and provides a
specific incarnation of that privilege for medical situations.” Francis v. United States, No. 09

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New York Law, which Defendants argue serve as a basis for Defendants’ arguments, protects
from disclosure proceedings and records “relating to performance of a medical or a quality
assurance review function or participation in a medical . . . malpractice program.” N.Y. Educ. L.
§ 6527(3). As one New York court explained, “[t]he purpose of the discovery exclusion is to
enhance the objectivity of the review process and to assure that medical review committees may
frankly and objectively analyze the quality of health services rendered by hospitals.” Logue v.
Velez, 92 N.Y.2d 13, 17 (N.Y. 1998) (internal quotation marks and citation omitted).
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Civ. 4004, 2011 WL 2224509, at *4 (S.D.N.Y. May 31, 2011) (citation omitted). “[T]o the
extent peer review privilege is inapplicable, self-critical analysis privilege is also inapplicable.”
Id. Because Defendants are invoking the self-critical analysis privilege in a health care-related
setting, medical peer review privilege, self-critical analysis privilege and quality assurance
privilege are equivalent for the purposes here.
The Supreme Court arguably has already determined that a federal peer review privilege
does not exist. In University of Pennsylvania, the Court held that neither the federal common
law nor the First Amendment warranted the recognition of a peer review privilege over the
tenure review files in an employment discrimination case. 493 U.S. 182 (1990); accord
Sabharwal, 2011 WL 477693, at *4.
Defendants also argue that recognition of a federal privilege will support important
federal policy interests, namely promoting public safety through quality assurance and peer
review. Defendants’ citation to federal laws -- the HCQIA and the PSQIA -- does not aid their
argument. In enacting the HCQIA, Congress did not create a privilege for medical peer review,
despite recognizing the need to incentivize physicians to engage in effective professional peer
review and granting officials who conduct peer reviews qualified immunity where statutory
standards are met. Johnson v. Nyack Hosp., 169 F.R.D. 550, 560 (S.D.N.Y. 1996). Also, “the
HCQIA specifically denies immunity under the Civil Rights Act for participants in peer review
proceedings.” Id. Rather than supporting recognition of the privilege, the passage of HCQIA
shows “that Congress accorded more weight to vindication of civil rights than to the interests in
the confidentiality of the peer review process.” Id. at 560–61. For these reasons, the HCQIA
does not provide a basis to recognize a peer review privilege here. See id. at 561 (holding the
court was “not free to recognize a privilege for medical peer review materials” where a physician
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brought federal race discrimination allegations against a hospital, in light of above
considerations).
The PSQIA also affords no basis for application of a privilege to the ten documents at
issue. The PSQIA creates a federal privilege for “any data, reports, records, memoranda,
analyses (such as root causes analyses), or written or oral statements” that a health care provider
assembles and reports to a patient safety organization (“PSO”). 42 U.S.C. §§ 299b-21(7), 299b22(a). Defendants do not argue that the PSQIA is applicable by its terms, rather appear to argue
that the PSQIA, like the HCQIA, lends support to the federal recognition of a peer review
privilege because it encourages a culture of safety and quality by providing confidentiality. Here
too, Congress’ refusal to recognize a peer review privilege cautions against judicial recognition
of the privilege. See Univ. of Pennsylvania, 493 U.S. at 189.
In applying the balancing test outlined in Sabharwal to this case, Plaintiff’s need for the
documents to enforce an important federal substantive policy outweighs any theoretical chilling
effect that disclosure would have on critical analysis of physician performance.2 2011 WL
477693, at *2. Plaintiff asserts that he was subjected to discrimination and a hostile work
environment on account of his age, religion, race and national origin. The emails and
evaluations submitted in camera that Defendants seek to protect from disclosure are relevant to
Plaintiff’s discrimination case. For the same reasons, Defendants have not shown that the burden
of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1).

2

Additionally, some of the documents -- namely the intern preceptor evaluation forms -- appear
to be signed by Plaintiff, indicating that he received a copy of the evaluation, thus overcoming
any claim of confidentiality.
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CONCLUSION
For the foregoing reasons, Defendants’ assertions of privilege as to the ten documents
reviewed in camera are OVERRULED. Defendants shall produce the documents at issue to
Plaintiff no later than February 8, 2017, and the parties shall apply the reasoning of this opinion
to the remaining documents. If disputes over whether disclosure of other individual documents
remain, the parties shall raise the disputes promptly with the Court.
Dated: February 10, 2017
New York, NY

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