|SAME AS||SAME AS S02071|
|COSPNSR||Dinowitz, Galef, Paulin, Clark, Jaffee, Gunther, Colton, Schimel|
|MLTSPNSR||Brennan, Cook, Jacobs, McDonough, Ortiz, Perry, Scarborough, Sweeney, Weisenberg|
|Amd S2805-m, Pub Health L; amd SS6527 & 6530, Ed L|
|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.|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3138 SPONSOR: Gottfried (MS)
TITLE OF BILL: An act to amend the public health law and the educa- tion law, in relation to quality assurance and peer review activities   PURPOSE OR GENERAL IDEA OF 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 SPECIFIC PROVISIONS: Sections 1 and 2 would amend section, 2805-m of the Public Health Law and section 6527 of the Education Law, respectively, 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 amends section 6530 of the education law to add failure to reasonably cooperate with quality assurance and peer review programs to the list of definitions of professional misconduct.   JUSTIFICATION: It is believed that incidents involving medical errors often go undetected and are underreported 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 effectiveness of the peer review process for enhancing the quality of care and adequately detecting and prevent- ing medical errors: The bill also includes a provision to encourage cooperation with peer review by defining a failure to reasonably cooperate with quality assur- ance, incident reporting, and peer review programs as a form of profes- sional misconduct. 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.   PRIOR LEGISLATIVE HISTORY: 2003: A 11545 - referred to Health committee 2004: A11545-A - reported to Codes committee 2005-06: A2943 - reported to Codes committee 2007-08: A6723-A - reported to Codes committee 2009-2010: A1596 - reported to Codes committee 2011-2012: A.590 - reported to Codes committee   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: Immediately.
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STATE OF NEW YORK ________________________________________________________________________ 3138 2013-2014 Regular Sessions IN ASSEMBLY January 23, 2013 ___________ Introduced by M. of A. GOTTFRIED, DINOWITZ, GALEF, PAULIN, CLARK, JAFFEE, GUNTHER, COLTON, SCHIMEL, BOYLAND -- Multi-Sponsored by -- M. of A. BRENNAN, COOK, JACOBS, McDONOUGH, ORTIZ, SCARBOROUGH, SWEENEY, WEISENBERG -- read once and referred 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: 1 Section 1. Subdivision 2 of section 2805-m of the public health law, 2 as amended by chapter 808 of the laws of 1987, is amended to read as 3 follows: 4 2. Notwithstanding any other provisions of law, none of the records, 5 documentation or committee actions or records required pursuant to 6 sections twenty-eight hundred five-j and twenty-eight hundred five-k of 7 this article, the reports required pursuant to section twenty-eight 8 hundred five-l of this article nor any incident reporting requirements 9 imposed upon diagnostic and treatment centers pursuant to the provisions 10 of this chapter shall be subject to disclosure under article six of the 11 public officers law or article thirty-one of the civil practice law and 12 rules, except as hereinafter provided or as provided by any other 13 provision of law. No person in attendance at a meeting of any such 14 committee shall be required to testify as to what transpired thereat. 15 [ The] Furthermore, the prohibition relating to discovery of testimony 16 shall [ not] apply to the statements made by any person in attendance at 17 such a meeting who is a party to an action or proceeding the subject 18 matter of which was reviewed at such meeting. 19 § 2. The closing paragraph of subdivision 3 of section 6527 of the 20 education law, as amended by chapter 257 of the laws of 1987, is amended 21 to read as follows: 22 Neither the proceedings nor the records relating to performance of a 23 medical or a quality assurance review function or participation in a EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01440-01-3A. 3138 2 1 medical and dental malpractice prevention program nor any report 2 required by the department of health pursuant to section twenty-eight 3 hundred five-l of the public health law described herein, including the 4 investigation of an incident reported pursuant to section 29.29 of the 5 mental hygiene law, shall be subject to disclosure under article thir- 6 ty-one of the civil practice law and rules except as hereinafter 7 provided or as provided by any other provision of law. No person in 8 attendance at a meeting when a medical or a quality assurance review or 9 a medical and dental malpractice prevention program or an incident 10 reporting function described herein was performed, including the inves- 11 tigation of an incident reported pursuant to section 29.29 of the mental 12 hygiene law, shall be required to testify as to what transpired thereat. 13 [ The] Furthermore, the prohibition relating to discovery of testimony 14 shall [ not] apply to the statements made by any person in attendance at 15 such a meeting who is a party to an action or proceeding the subject 16 matter of which was reviewed at such meeting. 17 § 3. Section 6530 of the education law is amended by adding a new 18 subdivision 50 to read as follows: 19 50. Failure to cooperate and participate, reasonably and in good 20 faith, in the quality assurance, incident reporting, and peer review 21 programs, activities, requirements and procedures covered by the confi- 22 dentiality provisions of section twenty-eight hundred five-m of the 23 public health law or clause (a), (b), (d) or (e) of subdivision three of 24 section sixty-five hundred twenty-seven of this title. 25 § 4. This act shall take effect immediately.