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

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 confidential- ity provisions.

Justification

It is believed that incidents involving medical errors often go unde- tected 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 profes- sional in the course of a hospital's review of the facts and circum- stances 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 effec- tive 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 readi- ly 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

2013/2014: S.2071 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.