A03138 Summary:

BILL NO    A03138 

SAME AS    SAME AS S02071

SPONSOR    Gottfried (MS)

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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A03138 Memo:

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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A03138 Text:



 
                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.
                                                                   LBD01440-01-3

        A. 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.
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