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ORDERS COMPELLING ANSWERS TO DEPOSITION QUESTIONS OR PRECLUDING QUESTIONING ARE NOT APPEALABLE AS OF RIGHT; A REQUEST FOR PERMISSION TO APPEAL AFTER THE APPEAL IS PERFECTED IS GENERALLY DENIED; THE HOSPITAL DID NOT DEMONSTRATE THE SUBJECT MEDICAL RECORDS WERE PRIVILEGED AS PART OF A QUALITY ASSURANCE REVIEW (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined (1) there is no appeal as of right from the denial of a motion to compel a witness to answer deposition questions, (2) there is no appeal as of right from a protective order precluding certain questioning, (3) an appellate court will generally not consider a request for permission to appeal made after the appeal is perfected, (4) the hospital did not demonstrate certain medical records were privileged as part of a quality assurance review:

… [T]he plaintiffs sought leave to appeal after their appeal was perfected. As this Court has repeatedly observed under comparable circumstances, “‘we are disinclined to grant leave to parties who have taken it upon themselves to perfect an appeal without leave to appeal'” … . * * *

Pursuant to Education Law § 6527(3), certain documents generated in connection with the “performance of a medical or a quality assurance review function,” or reports “required by the department of health pursuant to [Public Health Law § 2805-l],” are generally not discoverable … . Nyack Hospital, as the party seeking to invoke the privilege, had the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes … . Nyack Hospital merely asserted that a privilege applied to the requested documents without making any showing as to why the privilege attached. Martino v Jae Ho Lee, 2023 NY Slip Op 03915, Second Dept 7-26-23

Practice Point: If an order is not appealable as of right (here orders re: compelling answers or precluding questions during deposition), the appellate court will not generally grant permission to appeal after the appeal is perfected.

Practice Point:  Here in this med mal case the hospital did not demonstrate the medical records were privileged as part of a quality assurance review.

 

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