Monday, April 24, 2006

How to get discovery into hospital review board proceedings

Ryan v. Staten Island University Hospital, 2006 WL 1025890 (E.D.N.Y.)

Plaintiff sought discovery to support her claims of fraud, medical malpractice, and violations of New York consumer protection and public health laws. She alleged that her terminally ill husband was lured into useless treatment by defendants’ false advertising, with misrepresentations that included a claim of a “95% success rate” for cancer treatment. This false advertising enticed her husband to leave his home in Florida, forego appropriate treatment, and subject himself to negligent and unnecessary treatment, which shortened his life.

She moved to compel production of information on the success rate of the medical treatment used on her husband, including information from defendant’s peer review committee reports. The hospital claimed privilege under state law protecting hospital internal review proceedings from discovery as part of a comprehensive scheme to prevent malpractice. The flaw here, as the court pointed out, is that plaintiff was alleging false advertising, and information about actual successes and failures was highly relevant to whether the hospital’s advertising was false. Courts have allowed discovery of peer review committee findings where the plaintiff’s claim is not based on malpractice and the underlying policy of improving medical care through free and open discussion was not implicated. The court held that the same considerations applied here, since what plaintiff was trying to show was not that the doctors had made mistakes in other cases but that, regardless of their care in performing the medical procedures, they hadn’t achieved the success rate they claimed. Sustaining the privilege claim, by contrast, would license the hospital to deceive consumers.

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