senate Bill S2071

2013-2014 Legislative Session

Prohibits disclosure of testimony of a party to a health care quality assurance or peer review proceeding

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to health
Jan 10, 2013 referred to health

S2071 - Bill Details

See Assembly Version of this Bill:
A3138
Current Committee:
Law Section:
Public Health Law
Laws Affected:
Amd §2805-m, Pub Health L; amd §§6527 & 6530, Ed L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1207, A590
2009-2010: S2821, A1596

S2071 - Bill Texts

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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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BILL NUMBER:S2071

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: 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.

SUMMARY OF PROVISIONS:

Section one and two of this bill amend § 2805-m of the Public Health
Law and § 6527 of the Education Law 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 three adds a new subdivision 50 to § 6530 of the Education
Law. The new subdivision adds, to those activities which may
constitute professional misconduct, failure to cooperate reasonably
and in good faith with the quality assurance measures protected by the
confidentiality provisions.

JUSTIFICATION: It is believed that incidents involving medical errors
often go undetected and are under reported because physicians and
other health care providers understand they could 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 the Public Health Law and 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. 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." Lope 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 effective utilization of the peer review process to
enhance the quality of care and adequately detect and prevent medical
errors.

This legislation would improve the peer review process and ultimately
protect the public health and reduce the incidence of avoidable
medical errors. 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, absent the fear of
later misuse of their statements by attorneys or the media.

LEGISLATIVE HISTORY: 2011/2012: S.1207 2009/2010: S.2821 2007/2008:
S.4642-A 2005/2006: S.764 2001/2002: S.4629

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.

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

                                  2071

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 10, 2013
                               ___________

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 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:

  Section  1.  Subdivision 2 of section 2805-m of the public health law,
as amended by chapter 808 of the laws of 1987, is  amended  to  read  as
follows:
  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
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]  FURTHERMORE,  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.
  S 2. The closing paragraph of subdivision 3 of  section  6527  of  the
education law, as amended by chapter 257 of the laws of 1987, is amended
to read as follows:
  Neither  the  proceedings nor the records relating to performance of a
medical or a quality assurance review function  or  participation  in  a
medical  and  dental  malpractice  prevention  program  nor  any  report
required by the department of health pursuant  to  section  twenty-eight

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01440-01-3

S. 2071                             2

hundred  five-l of the public health law described herein, including the
investigation of an incident reported pursuant to section 29.29  of  the
mental  hygiene  law, shall be subject to disclosure under article thir-
ty-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 when a medical or a quality assurance review or
a medical and dental  malpractice  prevention  program  or  an  incident
reporting  function described herein was performed, including the inves-
tigation of an incident reported pursuant to section 29.29 of the mental
hygiene law, shall be required to testify as to what transpired thereat.
[The] FURTHERMORE, 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.
  S  3.  Section  6530  of  the education law is amended by adding a new
subdivision 50 to read as follows:
  50. FAILURE TO COOPERATE  AND  PARTICIPATE,  REASONABLY  AND  IN  GOOD
FAITH,  IN  THE  QUALITY  ASSURANCE, INCIDENT REPORTING, AND PEER REVIEW
PROGRAMS, ACTIVITIES, REQUIREMENTS AND PROCEDURES COVERED BY THE  CONFI-
DENTIALITY  PROVISIONS  OF  SECTION  TWENTY-EIGHT  HUNDRED FIVE-M OF THE
PUBLIC HEALTH LAW OR CLAUSE (A), (B), (D) OR (E) OF SUBDIVISION THREE OF
SECTION SIXTY-FIVE HUNDRED TWENTY-SEVEN OF THIS TITLE.
  S 4. This act shall take effect immediately.

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