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:

BILL NUMBER:A3138

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  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
preventing medical errors:

The  bill also includes a provision to encourage cooperation with peer
review by defining a failure  to  reasonably  cooperate  with  quality
assurance,  incident  reporting, and peer review programs as a form of
professional 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:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         3138

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   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    S 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    S  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    S 4. This act shall take effect immediately.
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