Bill S3461-2015

Grants immunity from liability to organizations which establish physician committees the purpose of which is to refer to treatment physicians who are thought to be suffering from addiction or mental illnes

Grants immunity from liability to organizations which establish physician committees the purpose of which is to confront and refer to treatment physicians who are thought to be suffering from addiction or mental illness.

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  • Feb 9, 2015: REFERRED TO HEALTH

Memo

BILL NUMBER:S3461

TITLE OF BILL: An act to amend the public health law, in relation to granting immunity from liability to organizations which establish physician committees

PURPOSE: To make technical amendments to a statutorily-recognized program that ensures physicians who have faced substance abuse or mental health issues can receive appropriate treatment and referral.

SUMMARY OF PROVISIONS:

Section one of the bill re-numbers specific provisions of the Public Health law Section 230(11)(g) that authorizes the Medical Society of the State of New York's Committee for Physicians Health program, and adds additional statutory language to clarify that the liability protections offered in the statute for physician participants in the program extend to the organizations themselves as well as their employees acting without malice and within the scope of its functions for the committee.

Section two of the bill provides an effective date.

JUSTIFICATION:

For over 30 years, the Medical Society's Committee for Physicians' Health has successfully provided needed treatment and counseling to numerous New York State physicians who are thought to be suffering from alcoholism, substance abuse or mental illness. The New York State Legislature has re-authorized the program numerous times, including most recently enacting a 5-year extension in 2013.

Importantly, this statute exempts members of a physician committee of the Medical Society of the State of New York, the New York State Osteopathic Society, or a county medical society, including MSSNY's Committee for Physicians' Health, from medical misconduct reporting requirements based on information received solely from their participation on this committee. The statute also expressly provides liability protections for those physicians who serve on these committees for actions taken within the scope of their functions for the committee.

However, a recent lower court decision has interpreted these liability protections as not applying to the entity creating this physician committee even though the statute expressly provides liability protection for the physician members serving on this committee. There would appear to be no good public-policy objective for this result except for the possibility that the law may have unintentionally been written in such a way that may have permitted this interpretation. This legislation would correct this technical defect.

Furthermore, there are serious concerns that, without clarifying the scope of the liability protections offered in this legislation, the program run by the Medical Society and other similar programs in New York State will be unable to continue to function. Enactment of this legislation will continue to allow impaired physicians who have not

harmed patients to be able to obtain referrals for treatment and will allow for intervention in order to help troubled physicians.

LEGISLATIVE HISTORY:

New Bill

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

Immediately provided, that these provisions shall expire and be deemed repealed with the sections they are amending.


Text

STATE OF NEW YORK ________________________________________________________________________ 3461 2015-2016 Regular Sessions IN SENATE February 9, 2015 ___________
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, in relation to granting immunity from liability to organizations which establish physician committees THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (g) of subdivision 11 of section 230 of the public health law, as added by chapter 426 of the laws of 1983, subpara- graphs (ii) and (iii) as amended by chapter 606 of the laws of 1991, subparagraphs (v) and (vi) as added by chapter 582 of the laws of 1984, is amended to read as follows: (g) (I) Any physician committee of the Medical Society of the State of New York, the New York State Osteopathic Society or a county medical society referred to in subparagraph (ii) of paragraph (c) of this subdi- vision shall develop procedures in consultation with, and approved by, the commissioner [of the department of health], including but not limit- ed to the following: [(i)] (A) The committee shall disclose at least once a month such information as the director of the office of professional medical conduct may deem appropriate regarding reports received, contacts or investigations made and the disposition of each report, provided however that the committee shall not disclose any personally identifiable infor- mation except as provided in [subparagraph (ii)] CLAUSE (B) or [subpara- graph (iii)] (C) of this [paragraph] SUBPARAGRAPH. [(ii)] (B) The committee shall immediately report to the director the name, all information obtained and the results of any contact or inves- tigation regarding any physician who is believed to be an imminent danger to the public. [(iii)] (C) The committee shall report to the director in a timely fashion all information obtained regarding any physician who refuses to
cooperate with the committee, refuses to submit to treatment, or whose impairment is not substantially alleviated through treatment. [(iv)] (D) The committee shall inform each physician who is partic- ipating in a program of the procedures followed in the program, of the rights and responsibilities of the physician in the program and of the possible results of noncompliance with the program. [(v)] (II) No member of any such committee, THE MEDICAL SOCIETY OF THE STATE OF NEW YORK, THE NEW YORK STATE OSTEOPATHIC SOCIETY OR A COUNTY MEDICAL SOCIETY REFERRED TO IN SUBPARAGRAPH (II) OF PARAGRAPH (C) OF THIS SUBDIVISION THAT ESTABLISHES A COMMITTEE, NOR ANY AGENT, SERVANT, REPRESENTATIVE OR EMPLOYEE THAT PROVIDES SERVICE TO ANY SUCH COMMITTEE, shall be liable for damages to any person for any action taken by such COMMITTEE, member, AGENT, SERVANT, REPRESENTATIVE OR EMPLOYEE provided that such action was taken without malice and within the scope of such [member's] INDIVIDUAL'S function [as a member of] TO such committee. [(vi)] (III) The committee, in conjunction with the director of the office of professional medical conduct, shall develop appropriate consent forms and disclosure proceedings as may be necessary under any federal statute, rule or regulation in order to permit the disclosure of the information as may be required under [subparagraphs (ii)] CLAUSES (B) and [(iii)] (C) OF SUBPARAGRAPH (I) of this paragraph. (IV) Except as [herein] provided IN THIS PARAGRAPH and notwithstanding any other provision of law, neither the proceedings nor the records of any such physician committee shall be subject to disclosure under arti- cle thirty-one of the civil practice law and rules nor shall any member of any such committee nor any person in attendance at any such meeting be required to testify as to what transpired thereat. S 2. This act shall take effect immediately; provided, that the amend- ments to paragraph (g) of subdivision 11 of section 230 of the public health law, made by section one of this act, shall not affect the repeal of such paragraph, and shall be deemed repealed therewith; and provided, further, that the amendments to subparagraphs (v) and (vi) of paragraph (g) of subdivision 11 of section 230 of the public health law, made by section one of this act, shall not affect the repeal of such subpara- graphs, and shall be deemed repealed therewith.

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