S1207-2011 - NY Senate Open Legislation - Prohibits disclosure of testimony of a party to a health care quality assurance or peer review proceeding

Prohibits the disclosure and discovery of the testimony of a party to a health care quality assurance or peer review proceeding; further adds the failure to cooperate and participate in the quality assurance, reporting, activities, requirements and procedures covered under such discovery to the definition of professional misconduct.

Sponsor: HANNON / Committee: HEALTH
Law Section: Public Health Law / Law: Amd S2805-m, Pub Health L; amd SS6527 & 6530, Ed L

S1207-2011 Actions

Jan 4, 2012: REFERRED TO HEALTH
Jun 24, 2011: COMMITTED TO RULES
May 23, 2011: ADVANCED TO THIRD READING
May 18, 2011: 2ND REPORT CAL.
May 17, 2011: 1ST REPORT CAL.749
Jan 5, 2011: REFERRED TO HEALTH

S1207-2011 Meetings

Health: Feb 14, 2011, Health: May 17, 2011

S1207-2011 Calendars

S1207-2011 Votes

VOTE: COMMITTEE VOTE: - Health - May 17, 2011

Ayes (10): Hannon, Ball, Farley, Fuschillo, Golden, Larkin, McDonald, Seward, Young, Gianaris
Ayes W/R (5): Adams, Kruger, Rivera, Smith, Stewart-Cousins
Nays (1): Duane
Excused (1): Montgomery

S1207-2011 Memo

 BILL NUMBER:  S1207

 TITLE OF BILL :
An act to amend the public health law and the education law, in
relation to quality assurance and peer review activities


 PURPOSE OF THE BILL :
To extend the confidentiality provisions relating to discovery of
testimony to statements made by any person in attendance at peer
review committees who is a party to an action or proceeding the
subject matter of which was reviewed during peer review committee
meetings. The extension of the confidentiality is proposed to enhance
the identification and correction of medical errors by physicians and
other health care providers to protect the public health and reduce
the incidence of avoidable medical errors.

 SUMMARY OF PROVISIONS :
This bill would amend section 2805-m of the Public Health Law and
section 6527 of the Education Law to extend the confidentiality
provisions relating to discovery of testimony to apply to statements
made by any person in attendance at peer review committee meetings who
is a party to an action or proceeding the subject matter of which was
reviewed at such meeting.

Section 3 adds a new subdivision 50 to section 6530 of the education
law. The new subdivision adds, to those activities which may
constitute professional misconduct, failure to cooperate reasonably
and in good faith with the quality assurance measures protected by the
confidentiality provisions.

 JUSTIFICATION :
It is believed that incidents involving medical errors often go
undetected and are under reported because physicians and other health
care providers understand that they would potentially be exposed to
future civil actions and any statements or information volunteered as
part of the peer review process could be discovered and used against
them in later court proceedings.

The objective of the discovery exclusion is to "enhance the
objectivity of the review process" and to assure that medical peer
review committees "may frankly and objectively analyze the quality of
health services rendered." See Memorandum of Assembly Rules Committee,
Bill Jacket, L.  1971, ch. 990, at 6. The Court of Appeals stated that
"by guaranteeing confidentiality to quality review and malpractice
prevention procedures, this provision is designed to encourage
thorough and candid peer review of physicians, and thereby improve the
quality of medical care." Logue v. Velez, 92 N.Y.2d 13,17,699 N.E.2d
365, 367 (1998).

However, both section 2805-m of the Public Health Law and section 6527
of the Education Law contain the same narrow exception that permits
disclosure of statements given at an otherwise privileged peer review
meeting by a party (medical provider) to a lawsuit which involves the
same underlying conduct that is the topic of discussion at the
meeting. Further, the courts have reinforced this exception by stating
that "the evident purpose of this provision is to permit discovery of
statements given by a physician or other professional in the course of
a hospital's review of the facts and circumstances of an earlier
incident which had given rise to a malpractice action."  Logue v.
Velez, 92 N.Y.2d 13,19,69 N.E. 2d 365, 368(1998-); see also
Swartzenberg v.  Trivedi, 189 A.D.2d 151,153 (1993), appeal dismissed,
82 N.Y.2d 749 (1993).



This exception compromises the effective utilization of the peer
review process to enhance the quality of care and adequately detect
and prevent medical errors.

Therefore, this legislation would improve the peer review process to
promote quality assurance.  By providing health care providers who are
the subject of peer review proceedings confidentiality from discovery
of testimony given at such proceedings, it is expected that medical
errors will be more readily detected and addressed by increasing
providers' willingness to submit information that is necessary to
conduct properly and expeditiously peer review activities, absent the
fear of later misuse of their statements by attorneys or the media.

 FISCAL IMPLICATIONS :
None.

 LEGISLATIVE HISTORY :
2009/2010 - S.2821
2007/2008 - S.4642-A
2005/2006 - S.764
2001/2002 - S.4629

 EFFECTIVE DATE :
This act shall take effect immediately.

S1207-2011 Text

 S T A T E   O F   N E W   Y O R K
 
                                          1207
 2011-2012 Regular Sessions
 I N  SENATE
 January 5, 2011
 
 Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
 printed to be committed to the Committee on Health
 

AN ACT to amend the public health law and the education law, in relation
 to quality assurance and peer review activities
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  Subdivision 2 of section 2805-m of the public health law,
 as amended by chapter 808 of the laws of 1987, is  amended  to  read  as
 follows:

 2.  Notwithstanding  any other provisions of law, none of the records,
 documentation or committee  actions  or  records  required  pursuant  to
 sections  twenty-eight hundred five-j and twenty-eight hundred five-k of
 this article, the reports  required  pursuant  to  section  twenty-eight
 hundred  five-l  of this article nor any incident reporting requirements
 imposed upon diagnostic and treatment centers pursuant to the provisions
 of this chapter shall be subject to disclosure under article six of  the
 public  officers law or article thirty-one of the civil practice law and
 rules, except as hereinafter  provided  or  as  provided  by  any  other
 provision  of  law.  No  person  in  attendance at a meeting of any such
 committee shall be required to testify as to  what  transpired  thereat.
 [The]  FURTHERMORE,  THE  prohibition relating to discovery of testimony
 shall [not] apply to the statements made by any person in attendance  at
 such  a  meeting  who  is a party to an action or proceeding the subject
 matter of which was reviewed at such meeting.
 

S 2. The closing paragraph of subdivision 3 of  section  6527  of  the
 education law, as amended by chapter 257 of the laws of 1987, is amended
 to read as follows:

 Neither  the  proceedings nor the records relating to performance of a
 medical or a quality assurance review function  or  participation  in  a
 medical  and  dental  malpractice  prevention  program  nor  any  report
 required by the department of health pursuant  to  section  twenty-eight
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD02350-01-1
        S. 1207                             2
 hundred  five-l of the public health law described herein, including the
 investigation of an incident reported pursuant to section 29.29  of  the
 mental  hygiene  law, shall be subject to disclosure under article thir
 ty-one  of  the  civil  practice  law  and  rules  except as hereinafter
 provided or as provided by any other provision  of  law.  No  person  in
 attendance  at a meeting when a medical or a quality assurance review or
 a medical and dental  malpractice  prevention  program  or  an  incident
 reporting  function described herein was performed, including the inves
 tigation of an incident reported pursuant to section 29.29 of the mental
 hygiene law, shall be required to testify as to what transpired thereat.
 [The] FURTHERMORE, THE prohibition relating to  discovery  of  testimony
 shall  [not] apply to the statements made by any person in attendance at
 such a meeting who is a party to an action  or  proceeding  the  subject
 matter of which was reviewed at such meeting.
 

S  3. 

Section  6530  of  the education law is amended by adding a new
 subdivision 50 to read as follows:

 50. FAILURE TO COOPERATE  AND  PARTICIPATE,  REASONABLY  AND  IN  GOOD
 FAITH,  IN  THE  QUALITY  ASSURANCE, INCIDENT REPORTING, AND PEER REVIEW
 PROGRAMS, ACTIVITIES, REQUIREMENTS AND PROCEDURES COVERED BY THE  CONFI
 DENTIALITY  PROVISIONS  OF  SECTION  TWENTY-EIGHT  HUNDRED FIVE-M OF THE
 PUBLIC HEALTH LAW OR CLAUSE (A), (B), (D) OR (E) OF SUBDIVISION THREE OF
 SECTION SIXTY-FIVE HUNDRED TWENTY-SEVEN OF THIS TITLE.
 

S 4. This act shall take effect immediately.

S1207-2011: Prohibits disclosure of testimony of a party to a health care quality assurance or peer review proceeding