Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF' -·DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017
JOSEPH V. McCARTHY
Roach, Brown, OF COUNSEL
J. MARK GRUBER
JOHN P. DANIEU McCarthy & Gruber, P.C. T. ALAN BROWN
ELIZABETH G. ADYMY ARTHUR J. MALONEY
JOEL J. JAVA, JR.
(1920-2011)
KEVIN 0 . McCARTHY
KEVIN VASQUEZ HUTCHESON
MARK R. AFFRONTI DANIEL T. ROACH
ADAM P. DEISINGER (1929-2013)
KAIT R. MICELI 1920 LIBER1Y BUILDING
SETH A. HISER GREGORY T. MILLER
KATHLEENM. FARRELL 424 MAIN STREET (1970-2017)
BUFFALO, NEW YORK 14202-3619
SPECIAL COUNSEL NURSE CONSULTANT$
RUTHANNE WANNOP (716) 852-0400 KATHLEEN BITTNER, RN.
EILEEN ULRICH, R.N.
FAX (716) 852-2535 BARBARA LALAMA. R.N.
LEGAL ASSISTANTS
KAREN E. BUZZELLI
MARIA R. BRAID
November 2, 20 I7
Brian P. Fitzgerald, Esq.
Fitzgerald & Roller, P.C.
509 Liberty Building NOV - 3 2017
,..
424 Main Street
Buffalo, New York 14202 ~
'
.....' .-.. . ·...-~-:--·-~:--:.. ··: .. . ...
:... ~
Re: Kausner vs. Eastern Niagara Hospital, et al
Our File No. 7-16-273
Dear Mr. Fitzgerald:
I am in receipt of your correspondence dated June 20, 2017, relative to Eastern Niagara
Hospital's responses to the plaintiffs' First Notice to Produce. The responses and objections raised
by the hospital were all made in good faith and after careful study, and are incorporated herein by
reference thereto. My further responses to your comments are as follows:
Demand #1
We have no objection to providing you with the opportunity to review the plaintiff's original chart
at our office at a mutually agreeable date and time.
Demand #s 8-14 and 25
Please see responses to these demands as initially set forth. Again, plaintiffs have failed to define
what they mean with request for exemplars and it is submitted that the demand for "exemplars",
however that term might be defined by the plaintiffs, goes beyond what is required of ENH under
CPLR 3120.
Demand #17
This demand is objected to as it constitutes an improper interrogatory and for all the other reasons
set out in ENH's objections and responses to the plaintiffs' First Notice to Produce. Without waiver
and subject to the said objections, upon information and belief, the initials RMN stand for Rachel
M. Napoleon. The requested job description and work schedule are attached hereto as Exhibit A.
Demand #19
Without waiver of and subject to our previous objections to this demand, please see the explanation
of the relevant terminology attached hereto as Exhibit B.
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017
Demand #s 22-24, 35-39, 41-42, 45, 49, 51-53, 56
All these demands implicate the production of material privileged from disclosure under the
Education Law and Public Health Law, as recognized in countless court decisions, including the
Court of Appeals and the Fourth Department. Please see: Education Law 6527(3); Article 28 of
the Public Health Law (including §2805-m and §§ 2805-j and 2805-k); 10 NYCRR §405.3; see
also Logue v Velez, 92 NY2d 13 (1998); Jousma v Kalli, 149 AD3d 1520, 1521 (4th Dept. 2017);
Scinta v Van Coevering, 284 AD2d 1000, 1001-1002 (4th Dept. 2001); Megrelishvili v Our Lady
of Mercy Med. Ctr. , 291 AD2d 18, 25 (1st Dept. 2002); Dicostanzo v Schwed, 146 AD3d 1044,
1045-1046 (3d Dept. 2017); Brandes v North Shore University Hospital, 1 AD3d 550 (2d Dept.
2003); Bernholc v Kitain, 294 AD2d 387, 387-388 (2d Dept. 2002); Crea v Newfane Inter-
community Mem. Hosp. , 224 AD2d 976, 977 (4th Dept. 1996); Catalano v Moreland, 299 AD2d
881 (4th Dept. 2002).
The fact that the documents sought ·hy the· ·plaintiffs may oe relevant to their claim is
immaterial because the Fourth Department has explicitly found that the legislative policy of
providing confidentiality in order to encourage peer review outweighs the plaintiffs' need for
evidence in order to prove their cause of action and that information which is privileged is not
subject to disclosure no matter how strong the showing of need or relevancy. Lilly v Turceki, 112
AD2d 788 (4th Dept. 1985); see also Stalker v Abraham, 69 AD3d 1172, 1175 (3d Dept. 2010);
Zion v NY Hosp., 183 AD2d 386, 389 (1st Dept 1992); In re Love Canal, 92 AD2d 416 (4th Dept.
1983).
Notably, with respect to Dr. Cappuccino, the plaintiffs have not made a negligent hiring or
credentialing claim. Thus, even were Dr. Cappuccino' s credentialing file not privileged, it is also
not subject to disclosure as it is irrelev&nt to this action.
Demand #26
This is plaintiffs' demand for PA Eric Dean' s "set" of orders. ENH ~oes not possess any "set" of
orders responsive to this demand.
Demand #s 35-36
These are demands seeking information concerning vascular surgeons having privileges to provide
services at ENH over the period September l , 20-15-September 3, 2015 and who may have been
on call during that period of time. ENH objects to these demands as improper because they
constitute interrogatories. To the extent this demand calls for information regarding the privileges
of any such physicians: that information is confidential and not subject to disclosure. Orzech v
Smith, 12 AD3d 1150 (4th Dept. 2004); Durham Medical Search, Inc. v Physicians Internal 'l
Search, Inc., 122 AD2d 529 (4th Dept. 1986). Subject to and without waiver of the objections
which have been raised with respect to these demand s, please be advised that at the time in question
ENH had general surgeons on call who performed selected vascular procedures: Ors. Mohamed
Ibrahim, Robert Hodge, Eric Johnson, and Jeffrey Schratz.
Deman d #40
This demand for con~racts and agreements is obj ected to as overly broad and unduly burdensome
and lacking any specificity indicating its relevance to this action or that it is reasonably calculated
to lead to the discovery of information bearing on the plaintiffs' claims. The demand is also
l
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 95
" · RECEIVED NYSCEF: 11/15/2017
improper because it is not adequately limited to a particular period of time or subject matter.
Diconstanzo v Schwed, 146 AD3d 1044, 1045-1046 (3d Dept. 2017). Plaintiffs' use of the words
"any" and "of any kind" in this demand is palpably improper. Battease v Sta(e ofNY, 129 AD3d
1579, 1580 (4th Dept. 2015); Haga v Pyke, 19 AD3d 1053, 1054 (4th Dept. 2005); see also
McMahon 'I! Cobblestone Lofts Condominium, 134 AD3d 646, 646-647 (1st Dept. 2015)
(interrogatories at issue ruled to be "palpably improper" because they were either overly broad,
unduly burdensome, irrelevant, or vague).. Subject to and without waiver of the foregoing
objections, ENH had a contract with the radiology group providing services at the hospital, but not
with the individual physicians making up the practice. ENH objects to producing that contract on
the ground that it contains proprietary information. Conley & Son .Excavating Co., Ltd. v Delta
Alliance, LLC, 120 A.D3d 1604 (4th Dept. 2014).
Demand #s 42 45, 52-54, 56
These demands are for documents/information concerning credentialing a!)d _privileges required
by the Department of Health in its governance over hospital facilities. There is no private cause of
action provided for under these regulations and they are thus irrelevant to the plaintiffs
prosecution of this action. See generally, Uhr v E. Greenbush Cent. Sch. Dist., 94 NY2d 32 (1999);
Justice v State ofNY, 116 AD3d 1196 (3rd Dept 2014). Moreover, plaintiffs may not use the cited
hospital regulations as an end around the rules of confidentiality surrounding such
documents/information. 10 NYCRR 405(d); see Catalano v Moreland, 299 AD2d 881 (4th Dept.
2002); and Bernholc v Kitain, 294 AD2d 387 (2d Dept. 2002). The statutory authority for 10
NYCRR 405 includes 2805-m, which provides for the confidentiality of quality assurance and peer
review, such as the credentialing process. The remaining documentation/information sought by the
plaintiffs goes to quality assurance and are likewise privileged from disclosure. See generally
Hosp. Assn. ofNY State v Axelrod, 164 AD2d 518, 525 (3d Dept. 1990).
Demand #57
This demand is for the work schedule of the radiology department of Eastern Niagara Hospital for
the period September 1, 2015-September 3, 2015. ENH has already provided those documents in
its possession responsive to this demand.
Should you wish to discuss any of the foregoing further, please do not hesitate to contact
me.
Sincerely,
ROA
Enclosures
Cc: Brian Weidner, Esq.
Michael J. Roach, Esq.
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF
. DOC.. NO. 95 RECEIVED NYSCEF: 11/15/2017
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017
EASTERN NIAGARA HOSPITAL
JOB DESCRIPTION
JOB fflLE: Certified MRI Technologist Revised: 1/2012
DEPARTMENT: Radiology Department Revised approved: 6/22/12
- -Dlrector..of-Radiology.
BARGINING UNIT: PEF
A. Essential Position Functions/Performance Criteria:
1. Translates physician orders into appropriate diagnostic imaging
procedures including age and growth/development needs. Perfonns MRI
examinations of all anatomic stnJctures as ordered by the physician.
Instructs and supports patients during imaging. Assists nurses with IV
lines/injections. Assists in quality. assurance and control measures for quality
diagnostic imaging. Notifies physician/supervisor promptly of any potential
issues .o r readions regarding examination. (60%) ·
2. Maintains records as directed including computer records, assembles
films. Obtains stat reports as required. Obtains accurate documentation of
patient history pertaining to specific examination on requisition. Determines
if sedation is necessary. (5%)
3. Performs daily SNR/resonant frequency testing with MRI equipment.
Maintains MRI coils. Routinely cleans all equipment. Performs checks on
equipment prior to exposing patients to ionizing radiation. Uses proper coils
and protocols. Determines if additional sequencing is necessary. Notifies
supervisor of any equipment service issues. (3% ).
4. Other duties including: attends to mechanical safety needs of patients and
personnel in assigned area, pradicing sterile techniques when necessary:
assists in maintenance of echonomical use of patient supplies and inventory
control in patient care areas; instructs and orients new and transferred
radiological technologists and students, when requested; on-call shifts,
when requested; other duties as directed by supervisor. (2%)
5. Perform other related duties as assigned by authorized personnel or as
may be required to meet emergencies. Complies with all quality assurance,
customer focus, infedion control, safety and all policies and procedures with
the department and Eastern Niagara Hospital.
6. Understand and follow all Eastern Niagara Health Service Excellence
Standards of Performance.
7. Must be certified in MRI (ARRT).
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017
EDUCATION:
> Two year training in an accredited school of Radiological Technology.
> Licensed by the State of New York.
> Registered with the American Registry
> Fulfills FDA/State requirements.
EXP&RIENCE: ----- . - --- -
> One year experience in MRI.
CONTACTS:
> Personnel within the deparbnent and other departments, patients, doctors,
nurse and families.
PHYSICAL DEMANDS:
> Standing, walking, lifting (light to heavy) pushing carts and portables.
WORKING CONDmONS:
> Exposed to acutely ill patients.
> Exposed to processor chemicals.
> Hazards: Radiation, contagious diseases, back injuries and electrical
equipment.
OSHA Category I
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO.
rune Detail95 RECEIVED NYSCEF: 11/15/2017
Page 1 of 1
TIME DETAIL
Time Period: Range of Da1es Prinled: '3127/2017
Dales: 9/01/2015- 9/03/2015
Name: NAPOLEON, RACHEL
Apply To In Out Adj/Ent Totaled Cum. Tol
Date In Punch
Exe
Out Punch $Amt
Amount Amount Amount
Absence
Exe
Tue 9/01 2:58PM 11:05PM 7.5 7.5
Wed 9/02 2:58PM 11:06PM 7.5 15.0
Thu 9/03 2:58PM 11:06PM 7.5 22.5
Totals 0.00 0.0 22.5 22.5
Account Summary
Account Pay Code Money Hours Wages
02/7041/1503/PEF/1/FT/O
Evening Diff 22.5 0.00
Reg 22.5 0.00
Total Hours 22.5 0.00
Total Worked 22.5 0.00
Pay Code Summary
Pay Code Money Hours Wages
Evening Diff 22.5 0.00
Reg 22.5 0.00
Totals 0.00 45.0 0.00
Combined Pay Code Summary
Pay Code Money Hours Wages
Total Hours 22.5 0.00
Total Worked 22.5 0.00
Totals 0.00 45.0 0.00
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017
Patient: LV200975239i" · LMOi.i6i17
DOS 9/1/15-9/3/15
or. cappaccino Back surgery case user Mnemonic; CAPPACCINO
Eric Dean, P.A. user mnemonic: DEAN
USERS: Nurses & Ancillary staff providing services to the patient:
ICU Nurses: L2C.LMK = Linda Kozlowski,RN
L2C.KMC ~ _Ke]J.y Centner, RN
LIC.DPH = DOnna -Heirnan RN
LIC.SAJ = Shelley Jakubec RN
IMS.JLP = Joan Parks! RN
L2C.CLB =-Courtney Bisher, RN 9/2/15 viewed Med
order
Ancillary Staff: LCP.JDL = Janeen Cohen, Respiratory Therapist 9/3/15
ER Nurse Viewed an order: LER.RSM = Robert Moreno RN
O.R. scheduler: LOR.SAO= sherry oliver 9/1/15 ordered Microbiology.
Pharmacist: LRX.SRM = Steven Moss
9/1/15 Edited Med order #20150901-0191
LRX.DMB - Diane Bassanello
9/2/15 Edited Med order 20150902-0051
LRX.MMG = Margaret Gerwitz,
9/2/15 Edited Med order #20150902-0167
ORDERS:
categories:
MED= Medication order
- IV mnemonic - Medication IV order
- TITR mnemonic - Titer
ADT - Admit Discharge Transfer order
- order 'ADMIT' mnemonic
- order 'CODESTATUS' = Resusitation Status: FULL CODE
- TRANSIN - Transfer Inhouse order. Transferred to ICU
NUR - Nursing category - orders for nursing interventions
- vs NON-ICU= Vital Signs for Non-ICU patients
- TED KNEE - Ted's stockings
- SCH/TEDS - nursing intervention to put Ted's stockings on the patient.
ACT/AMB - Activity and Ambulation Nursing Intervention
- FOLEY - Nursing Intervention for a Foley Catheter Insertion
- OT EVAL - occupational Therapy Evaluation
- PT EVAL - Physical Therapy Evaluation
- INCENTIVE - nursing documentation as to when this is done - intervention
DIET - Dietary orders for meals
- CL= clear Liquid Diet
QINDICATOR - Quality Indicator
- VTE PROPHY - venous Thromboembolism Prophylaxis
RESP - Respiratory Therapy order
- INCENTIVE= Incentive Spirometry
- OXYGEN - 02 order
LCP - cardio Pulmonary orders
- RTISIL - Incentive Spirometry Instruction
- RTISL - Incentive spirometry setup
- RT02IL - 02 Setup
LAB - Laboratory orders
- CBC= complete Blood count
- BMP - Basic Metabolic Panel
- CMP - complete Metabolic Panel
MIC= Microbiology orders
- uc = urine culture
- NC MRSA - Nose culture for MRSA
Page 1
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017
CONS= consultations
CONS - Physician consult order - consult for or. Pal
- CONS - Physician consult order - consult for Dr. clerk
Page 2
Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017 FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF' -·DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017 JOSEPH V. McCARTHY Roach, Brown, OF COUNSEL J. MARK GRUBER JOHN P. DANIEU McCarthy & Gruber, P.C. T. ALAN BROWN ELIZABETH G. ADYMY ARTHUR J. MALONEY JOEL J. JAVA, JR. (1920-2011) KEVIN 0 . McCARTHY KEVIN VASQUEZ HUTCHESON MARK R. AFFRONTI DANIEL T. ROACH ADAM P. DEISINGER (1929-2013) KAIT R. MICELI 1920 LIBER1Y BUILDING SETH A. HISER GREGORY T. MILLER KATHLEENM. FARRELL 424 MAIN STREET (1970-2017) BUFFALO, NEW YORK 14202-3619 SPECIAL COUNSEL NURSE CONSULTANT$ RUTHANNE WANNOP (716) 852-0400 KATHLEEN BITTNER, RN. EILEEN ULRICH, R.N. FAX (716) 852-2535 BARBARA LALAMA. R.N. LEGAL ASSISTANTS KAREN E. BUZZELLI MARIA R. BRAID November 2, 20 I7 Brian P. Fitzgerald, Esq. Fitzgerald & Roller, P.C. 509 Liberty Building NOV - 3 2017 ,.. 424 Main Street Buffalo, New York 14202 ~ ' .....' .-.. . ·...-~-:--·-~:--:.. ··: .. . ... :... ~ Re: Kausner vs. Eastern Niagara Hospital, et al Our File No. 7-16-273 Dear Mr. Fitzgerald: I am in receipt of your correspondence dated June 20, 2017, relative to Eastern Niagara Hospital's responses to the plaintiffs' First Notice to Produce. The responses and objections raised by the hospital were all made in good faith and after careful study, and are incorporated herein by reference thereto. My further responses to your comments are as follows: Demand #1 We have no objection to providing you with the opportunity to review the plaintiff's original chart at our office at a mutually agreeable date and time. Demand #s 8-14 and 25 Please see responses to these demands as initially set forth. Again, plaintiffs have failed to define what they mean with request for exemplars and it is submitted that the demand for "exemplars", however that term might be defined by the plaintiffs, goes beyond what is required of ENH under CPLR 3120. Demand #17 This demand is objected to as it constitutes an improper interrogatory and for all the other reasons set out in ENH's objections and responses to the plaintiffs' First Notice to Produce. Without waiver and subject to the said objections, upon information and belief, the initials RMN stand for Rachel M. Napoleon. The requested job description and work schedule are attached hereto as Exhibit A. Demand #19 Without waiver of and subject to our previous objections to this demand, please see the explanation of the relevant terminology attached hereto as Exhibit B. FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017 Demand #s 22-24, 35-39, 41-42, 45, 49, 51-53, 56 All these demands implicate the production of material privileged from disclosure under the Education Law and Public Health Law, as recognized in countless court decisions, including the Court of Appeals and the Fourth Department. Please see: Education Law 6527(3); Article 28 of the Public Health Law (including §2805-m and §§ 2805-j and 2805-k); 10 NYCRR §405.3; see also Logue v Velez, 92 NY2d 13 (1998); Jousma v Kalli, 149 AD3d 1520, 1521 (4th Dept. 2017); Scinta v Van Coevering, 284 AD2d 1000, 1001-1002 (4th Dept. 2001); Megrelishvili v Our Lady of Mercy Med. Ctr. , 291 AD2d 18, 25 (1st Dept. 2002); Dicostanzo v Schwed, 146 AD3d 1044, 1045-1046 (3d Dept. 2017); Brandes v North Shore University Hospital, 1 AD3d 550 (2d Dept. 2003); Bernholc v Kitain, 294 AD2d 387, 387-388 (2d Dept. 2002); Crea v Newfane Inter- community Mem. Hosp. , 224 AD2d 976, 977 (4th Dept. 1996); Catalano v Moreland, 299 AD2d 881 (4th Dept. 2002). The fact that the documents sought ·hy the· ·plaintiffs may oe relevant to their claim is immaterial because the Fourth Department has explicitly found that the legislative policy of providing confidentiality in order to encourage peer review outweighs the plaintiffs' need for evidence in order to prove their cause of action and that information which is privileged is not subject to disclosure no matter how strong the showing of need or relevancy. Lilly v Turceki, 112 AD2d 788 (4th Dept. 1985); see also Stalker v Abraham, 69 AD3d 1172, 1175 (3d Dept. 2010); Zion v NY Hosp., 183 AD2d 386, 389 (1st Dept 1992); In re Love Canal, 92 AD2d 416 (4th Dept. 1983). Notably, with respect to Dr. Cappuccino, the plaintiffs have not made a negligent hiring or credentialing claim. Thus, even were Dr. Cappuccino' s credentialing file not privileged, it is also not subject to disclosure as it is irrelev&nt to this action. Demand #26 This is plaintiffs' demand for PA Eric Dean' s "set" of orders. ENH ~oes not possess any "set" of orders responsive to this demand. Demand #s 35-36 These are demands seeking information concerning vascular surgeons having privileges to provide services at ENH over the period September l , 20-15-September 3, 2015 and who may have been on call during that period of time. ENH objects to these demands as improper because they constitute interrogatories. To the extent this demand calls for information regarding the privileges of any such physicians: that information is confidential and not subject to disclosure. Orzech v Smith, 12 AD3d 1150 (4th Dept. 2004); Durham Medical Search, Inc. v Physicians Internal 'l Search, Inc., 122 AD2d 529 (4th Dept. 1986). Subject to and without waiver of the objections which have been raised with respect to these demand s, please be advised that at the time in question ENH had general surgeons on call who performed selected vascular procedures: Ors. Mohamed Ibrahim, Robert Hodge, Eric Johnson, and Jeffrey Schratz. Deman d #40 This demand for con~racts and agreements is obj ected to as overly broad and unduly burdensome and lacking any specificity indicating its relevance to this action or that it is reasonably calculated to lead to the discovery of information bearing on the plaintiffs' claims. The demand is also l FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 95 " · RECEIVED NYSCEF: 11/15/2017 improper because it is not adequately limited to a particular period of time or subject matter. Diconstanzo v Schwed, 146 AD3d 1044, 1045-1046 (3d Dept. 2017). Plaintiffs' use of the words "any" and "of any kind" in this demand is palpably improper. Battease v Sta(e ofNY, 129 AD3d 1579, 1580 (4th Dept. 2015); Haga v Pyke, 19 AD3d 1053, 1054 (4th Dept. 2005); see also McMahon 'I! Cobblestone Lofts Condominium, 134 AD3d 646, 646-647 (1st Dept. 2015) (interrogatories at issue ruled to be "palpably improper" because they were either overly broad, unduly burdensome, irrelevant, or vague).. Subject to and without waiver of the foregoing objections, ENH had a contract with the radiology group providing services at the hospital, but not with the individual physicians making up the practice. ENH objects to producing that contract on the ground that it contains proprietary information. Conley & Son .Excavating Co., Ltd. v Delta Alliance, LLC, 120 A.D3d 1604 (4th Dept. 2014). Demand #s 42 45, 52-54, 56 These demands are for documents/information concerning credentialing a!)d _privileges required by the Department of Health in its governance over hospital facilities. There is no private cause of action provided for under these regulations and they are thus irrelevant to the plaintiffs prosecution of this action. See generally, Uhr v E. Greenbush Cent. Sch. Dist., 94 NY2d 32 (1999); Justice v State ofNY, 116 AD3d 1196 (3rd Dept 2014). Moreover, plaintiffs may not use the cited hospital regulations as an end around the rules of confidentiality surrounding such documents/information. 10 NYCRR 405(d); see Catalano v Moreland, 299 AD2d 881 (4th Dept. 2002); and Bernholc v Kitain, 294 AD2d 387 (2d Dept. 2002). The statutory authority for 10 NYCRR 405 includes 2805-m, which provides for the confidentiality of quality assurance and peer review, such as the credentialing process. The remaining documentation/information sought by the plaintiffs goes to quality assurance and are likewise privileged from disclosure. See generally Hosp. Assn. ofNY State v Axelrod, 164 AD2d 518, 525 (3d Dept. 1990). Demand #57 This demand is for the work schedule of the radiology department of Eastern Niagara Hospital for the period September 1, 2015-September 3, 2015. ENH has already provided those documents in its possession responsive to this demand. Should you wish to discuss any of the foregoing further, please do not hesitate to contact me. Sincerely, ROA Enclosures Cc: Brian Weidner, Esq. Michael J. Roach, Esq. FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF . DOC.. NO. 95 RECEIVED NYSCEF: 11/15/2017 FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017 EASTERN NIAGARA HOSPITAL JOB DESCRIPTION JOB fflLE: Certified MRI Technologist Revised: 1/2012 DEPARTMENT: Radiology Department Revised approved: 6/22/12 - -Dlrector..of-Radiology. BARGINING UNIT: PEF A. Essential Position Functions/Performance Criteria: 1. Translates physician orders into appropriate diagnostic imaging procedures including age and growth/development needs. Perfonns MRI examinations of all anatomic stnJctures as ordered by the physician. Instructs and supports patients during imaging. Assists nurses with IV lines/injections. Assists in quality. assurance and control measures for quality diagnostic imaging. Notifies physician/supervisor promptly of any potential issues .o r readions regarding examination. (60%) · 2. Maintains records as directed including computer records, assembles films. Obtains stat reports as required. Obtains accurate documentation of patient history pertaining to specific examination on requisition. Determines if sedation is necessary. (5%) 3. Performs daily SNR/resonant frequency testing with MRI equipment. Maintains MRI coils. Routinely cleans all equipment. Performs checks on equipment prior to exposing patients to ionizing radiation. Uses proper coils and protocols. Determines if additional sequencing is necessary. Notifies supervisor of any equipment service issues. (3% ). 4. Other duties including: attends to mechanical safety needs of patients and personnel in assigned area, pradicing sterile techniques when necessary: assists in maintenance of echonomical use of patient supplies and inventory control in patient care areas; instructs and orients new and transferred radiological technologists and students, when requested; on-call shifts, when requested; other duties as directed by supervisor. (2%) 5. Perform other related duties as assigned by authorized personnel or as may be required to meet emergencies. Complies with all quality assurance, customer focus, infedion control, safety and all policies and procedures with the department and Eastern Niagara Hospital. 6. Understand and follow all Eastern Niagara Health Service Excellence Standards of Performance. 7. Must be certified in MRI (ARRT). FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017 EDUCATION: > Two year training in an accredited school of Radiological Technology. > Licensed by the State of New York. > Registered with the American Registry > Fulfills FDA/State requirements. EXP&RIENCE: ----- . - --- - > One year experience in MRI. CONTACTS: > Personnel within the deparbnent and other departments, patients, doctors, nurse and families. PHYSICAL DEMANDS: > Standing, walking, lifting (light to heavy) pushing carts and portables. WORKING CONDmONS: > Exposed to acutely ill patients. > Exposed to processor chemicals. > Hazards: Radiation, contagious diseases, back injuries and electrical equipment. OSHA Category I FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. rune Detail95 RECEIVED NYSCEF: 11/15/2017 Page 1 of 1 TIME DETAIL Time Period: Range of Da1es Prinled: '3127/2017 Dales: 9/01/2015- 9/03/2015 Name: NAPOLEON, RACHEL Apply To In Out Adj/Ent Totaled Cum. Tol Date In Punch Exe Out Punch $Amt Amount Amount Amount Absence Exe Tue 9/01 2:58PM 11:05PM 7.5 7.5 Wed 9/02 2:58PM 11:06PM 7.5 15.0 Thu 9/03 2:58PM 11:06PM 7.5 22.5 Totals 0.00 0.0 22.5 22.5 Account Summary Account Pay Code Money Hours Wages 02/7041/1503/PEF/1/FT/O Evening Diff 22.5 0.00 Reg 22.5 0.00 Total Hours 22.5 0.00 Total Worked 22.5 0.00 Pay Code Summary Pay Code Money Hours Wages Evening Diff 22.5 0.00 Reg 22.5 0.00 Totals 0.00 45.0 0.00 Combined Pay Code Summary Pay Code Money Hours Wages Total Hours 22.5 0.00 Total Worked 22.5 0.00 Totals 0.00 45.0 0.00 FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017 FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017 Patient: LV200975239i" · LMOi.i6i17 DOS 9/1/15-9/3/15 or. cappaccino Back surgery case user Mnemonic; CAPPACCINO Eric Dean, P.A. user mnemonic: DEAN USERS: Nurses & Ancillary staff providing services to the patient: ICU Nurses: L2C.LMK = Linda Kozlowski,RN L2C.KMC ~ _Ke]J.y Centner, RN LIC.DPH = DOnna -Heirnan RN LIC.SAJ = Shelley Jakubec RN IMS.JLP = Joan Parks! RN L2C.CLB =-Courtney Bisher, RN 9/2/15 viewed Med order Ancillary Staff: LCP.JDL = Janeen Cohen, Respiratory Therapist 9/3/15 ER Nurse Viewed an order: LER.RSM = Robert Moreno RN O.R. scheduler: LOR.SAO= sherry oliver 9/1/15 ordered Microbiology. Pharmacist: LRX.SRM = Steven Moss 9/1/15 Edited Med order #20150901-0191 LRX.DMB - Diane Bassanello 9/2/15 Edited Med order 20150902-0051 LRX.MMG = Margaret Gerwitz, 9/2/15 Edited Med order #20150902-0167 ORDERS: categories: MED= Medication order - IV mnemonic - Medication IV order - TITR mnemonic - Titer ADT - Admit Discharge Transfer order - order 'ADMIT' mnemonic - order 'CODESTATUS' = Resusitation Status: FULL CODE - TRANSIN - Transfer Inhouse order. Transferred to ICU NUR - Nursing category - orders for nursing interventions - vs NON-ICU= Vital Signs for Non-ICU patients - TED KNEE - Ted's stockings - SCH/TEDS - nursing intervention to put Ted's stockings on the patient. ACT/AMB - Activity and Ambulation Nursing Intervention - FOLEY - Nursing Intervention for a Foley Catheter Insertion - OT EVAL - occupational Therapy Evaluation - PT EVAL - Physical Therapy Evaluation - INCENTIVE - nursing documentation as to when this is done - intervention DIET - Dietary orders for meals - CL= clear Liquid Diet QINDICATOR - Quality Indicator - VTE PROPHY - venous Thromboembolism Prophylaxis RESP - Respiratory Therapy order - INCENTIVE= Incentive Spirometry - OXYGEN - 02 order LCP - cardio Pulmonary orders - RTISIL - Incentive Spirometry Instruction - RTISL - Incentive spirometry setup - RT02IL - 02 Setup LAB - Laboratory orders - CBC= complete Blood count - BMP - Basic Metabolic Panel - CMP - complete Metabolic Panel MIC= Microbiology orders - uc = urine culture - NC MRSA - Nose culture for MRSA Page 1 FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 11/15/2017 CONS= consultations CONS - Physician consult order - consult for or. Pal - CONS - Physician consult order - consult for Dr. clerk Page 2