NY State Senate Bill 2009-S2821

Senate Bill S2821

2009-2010 Legislative Session

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

download bill text pdf

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to health
Mar 04, 2009	referred to health

2009-S2821 (ACTIVE) - Details

See Assembly Version of this Bill:: A1596
Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §2805-m, Pub Health L; amd §§6527 & 6530, Ed L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S1207, A590
2013-2014: S2071, A3138
2015-2016: S4698, A3353
2017-2018: S3661, A2460
2019-2020: S1800, A1165

2009-S2821 (ACTIVE) - Summary

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.

2009-S2821 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2821

 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 OF THE 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 PROVISIONS :
This bill would amend section 2805-m of the Public Health Law and
section 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 3 adds a new subdivision 50 to section 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 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 effective utilization of the peer
review process to enhance the quality of care and adequately detect
and prevent medical errors.

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, absent the
fear of later misuse of their statements by attorneys or the media.

 FISCAL IMPLICATIONS :
None.

 LEGISLATIVE HISTORY :
2005/2006 - S.764
2003/2004 - S.1091A
2001/2002 - S.4629

 EFFECTIVE DATE :
This act shall take effect immediately.

2009-S2821 (ACTIVE) - Bill Text download pdf

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

                                  2821

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              March 4, 2009
                               ___________

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.
                                                           LBD01105-01-9

S. 2821                             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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