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.
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: 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.
SUMMARY OF PROVISIONS:
Section one and two of this bill amend § 2805-m of the Public Health Law and § 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 three adds a new subdivision 50 to § 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 they could 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 the Public Health Law and 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. 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." Lope 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.
This legislation would improve the peer review process and ultimately protect the public health and reduce the incidence of avoidable medical errors. 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.
LEGISLATIVE HISTORY: 2011/2012: S.1207 2009/2010: S.2821 2007/2008: S.4642-A 2005/2006: S.764 2001/2002: S.4629
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 2071 2013-2014 Regular Sessions IN SENATE January 10, 2013 ___________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-eightEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01440-01-3 S. 2071 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.