Senate Bill S5183

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

                                  5183

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by  Sen. SCHNEIDERMAN -- 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 the  reporting  of
  certain incidents by hospitals to patients and prohibiting retaliatory
  action, in connection therewith

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 2805-l of the  public  health  law  is  amended  by
adding a new subdivision 1-a to read as follows:
  1-A.  IN  ADDITION  TO THE REPORTS REQUIRED BY SUBDIVISION ONE OF THIS
SECTION, ALL HOSPITALS, AS DEFINED IN SUBDIVISION ONE OF  SECTION  TWEN-
TY-EIGHT HUNDRED ONE OF THIS ARTICLE, SHALL REPORT TO THE DEPARTMENT AND
TO  ANY  PATIENT,  OR  HIS  OR HER REPRESENTATIVE, THE OCCURRENCE OF ANY
INCIDENT WITHIN THE SCOPE OF SUBDIVISION TWO OF THIS SECTION THAT HAS AN
ADVERSE IMPACT ON SUCH PATIENT.
  S 2. Section 2805-m of the public health law, as  amended  by  chapter
808 of the laws of 1987, is amended to read as follows:
  S  2805-m.  Confidentiality.    1.  The  information  required  to  be
collected and  maintained  pursuant  to  sections  twenty-eight  hundred
five-j and twenty-eight hundred five-k of this article, reports required
to  be submitted pursuant to section twenty-eight hundred five-l of this
article and any incident reporting requirements imposed upon  diagnostic
and  treatment  centers pursuant to the provisions of this chapter shall
be kept confidential and shall not be released except to the  department
[or],  pursuant  to  subdivision  four  of  section twenty-eight hundred
five-k of this article OR PURSUANT TO SUBDIVISION ONE-A OF SECTION TWEN-
TY-EIGHT HUNDRED FIVE-L OF THIS ARTICLE AS OTHERWISE PERMITTED BY LAW.
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11644-01-9
              

S. 5183                             2

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  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.  NONE OF THE PROHIBITIONS IN THIS SUBDIVISION
SHALL APPLY TO INFORMATION WITHIN THE  SCOPE  OF  SUBDIVISION  ONE-A  OF
SECTION TWENTY-EIGHT HUNDRED FIVE-L OF THIS ARTICLE.
  3.  There  shall be no monetary liability on the part of, and no cause
of action for damages shall  arise  against,  any  person,  partnership,
corporation,  firm,  society, or other entity on account of the communi-
cation of information in the possession of such person or entity, or  on
account  of  any  recommendation or evaluation, regarding the qualifica-
tions, fitness, or professional conduct or practices of a physician,  to
any  governmental agency, medical or specialists society, or hospital as
required by sections twenty-eight hundred five-j,  twenty-eight  hundred
five-k  and  twenty-eight hundred five-l of this article or any incident
reporting requirements imposed upon  diagnostic  and  treatment  centers
pursuant to the provisions of this chapter, NOR SHALL THERE BE ANY MONE-
TARY  LIABILITY  OR  CAUSE  OF ACTION FOR DAMAGES AGAINST ANY PERSON DUE
SOLELY TO HIS OR HER DISCLOSURE OF ANY INFORMATION PURSUANT TO  SUBDIVI-
SION  ONE-A  OF SECTION TWENTY-EIGHT HUNDRED FIVE-L OF THIS ARTICLE. The
foregoing shall not apply to information which is  untrue  and  communi-
cated with malicious intent.
  S  3.  The public health law is amended by adding a new section 2805-t
to read as follows:
  S 2805-T. PENALTIES AND CIVIL ACTION; HOSPITAL WHO PENALIZES EMPLOYEES
OR PHYSICIANS BECAUSE OF COMPLAINTS OF HOSPITAL VIOLATIONS.  1.    DEFI-
NITIONS.  AS  USED  IN  THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
FOLLOWING MEANINGS:
  (A) "EMPLOYEE" MEANS ANY PERSON WHO PERFORMS SERVICES  FOR  AND  UNDER
THE  CONTROL OF AN EMPLOYER FOR WAGES OR OTHER REMUNERATION AND SHALL BE
DEEMED TO MEAN AND INCLUDE, FOR PURPOSES OF THIS SECTION, ANY  PHYSICIAN
HAVING PROFESSIONAL PRIVILEGES OR ASSOCIATION WITH ANY EMPLOYER.
  (B)  "EMPLOYER"  MEANS  ANY  HOSPITAL, AS DEEMED IN SUBDIVISION TEN OF
SECTION TWENTY-EIGHT HUNDRED ONE OF THIS ARTICLE.
  (C) "INCIDENT" MEANS ANY INCIDENT SUBJECT TO THE PROVISIONS OF  SUBDI-
VISION ONE-A OF SECTION TWENTY-EIGHT HUNDRED FIVE-L OF THIS ARTICLE.
  (D)  "RETALIATORY  ACTION"  MEANS THE DISCHARGE, SUSPENSION, DEMOTION,
PENALIZATION OR DISCRIMINATION AGAINST AN  EMPLOYEE,  OR  OTHER  ADVERSE
EMPLOYMENT  ACTION TAKEN AGAINST AN EMPLOYEE IN THE TERMS AND CONDITIONS
OF EMPLOYMENT OR WITH RESPECT TO HOSPITAL PRIVILEGES OR ASSOCIATION.
  2. RETALIATORY ACTION PROHIBITED. NO EMPLOYER SHALL  TAKE  RETALIATORY
ACTION  AGAINST ANY EMPLOYEE BECAUSE THE EMPLOYEE DISCLOSES OR THREATENS
TO DISCLOSE TO A PATIENT OR HIS OR HER REPRESENTATIVE OR THE  DEPARTMENT
AN INCIDENT.
  IF  AFTER  INVESTIGATION  THE  COMMISSIONER FINDS THAT AN EMPLOYER HAS
VIOLATED THIS SUBDIVISION, THE COMMISSIONER MAY, BY AN ORDER WHICH SHALL
DESCRIBE PARTICULARLY THE NATURE OF THE VIOLATION, ASSESS THE EMPLOYER A
CIVIL PENALTY OF NOT LESS THAN TWO HUNDRED NOR MORE  THAN  TWO  THOUSAND
DOLLARS.

S. 5183                             3

  3.  CIVIL  CAUSE OF ACTION.  AN EMPLOYEE MAY BRING A CIVIL ACTION IN A
COURT OF COMPETENT JURISDICTION AGAINST ANY  EMPLOYER  ALLEGED  TO  HAVE
VIOLATED  THE PROVISIONS OF THIS SECTION. THE COURT SHALL HAVE JURISDIC-
TION TO RESTRAIN VIOLATIONS OF THIS SECTION, WITHIN TWO YEARS AFTER SUCH
VIOLATION,  AND  TO  ORDER ALL APPROPRIATE RELIEF, INCLUDING REHIRING OR
REINSTATEMENT OF THE EMPLOYEE TO HIS OR HER FORMER POSITION WITH  RESTO-
RATION  OF SENIORITY, PAYMENT OF LOST COMPENSATION, DAMAGES, AND REASON-
ABLE ATTORNEYS' FEES. AT OR BEFORE THE COMMENCEMENT OF ANY ACTION  UNDER
THIS  SECTION,  NOTICE THEREOF SHALL BE SERVED UPON THE ATTORNEY GENERAL
BY THE EMPLOYEE.
  S 4. This act shall take effect on the one hundred twentieth day after
it shall have become a law; provided that the commissioner of health  is
authorized  to promulgate any and all rules and regulations and take any
other measures necessary to implement this act on its effective date  on
or before such date.