Bill Text: NY A05316 | 2023-2024 | General Assembly | Introduced

---

Bill Title: Removes the prohibition relating to certain discovery of testimony in certain actions for medical, dental or podiatric malpractice.

Spectrum: Slight Partisan Bill (Democrat 2-1)

Status: (Introduced - Dead) 2024-01-03 - referred to higher education [A05316 Detail]

Download: New_York-2023-A05316-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          5316

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                      March 7, 2023
                                       ___________

        Introduced by M. of A. McDONALD -- read once and referred to the Commit-
          tee on Higher Education

        AN ACT to amend the education law and the public health law, in relation
          to  removing the  prohibition  relating to certain discovery of testi-
          mony

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.    Subdivision  3 of section 6527 of the education law, as
     2  amended by chapter 257 of the laws  of  1987,  is  amended  to  read  as
     3  follows:
     4    3. No individual who serves as a member of (a) a committee established
     5  to  administer  a  utilization  review  plan  of a hospital, including a
     6  hospital as defined in article twenty-eight of the public health law  or
     7  a  hospital  as defined in subdivision ten of section 1.03 of the mental
     8  hygiene law, or (b) a committee having the responsibility of the  inves-
     9  tigation of an incident reported pursuant to section 29.29 of the mental
    10  hygiene  law  or  the  evaluation and improvement of the quality of care
    11  rendered in a hospital as defined in article twenty-eight of the  public
    12  health  law  or a hospital as defined in subdivision ten of section 1.03
    13  of the mental hygiene law,  or  (c)  any  medical  review  committee  or
    14  subcommittee thereof of a local, county or state medical, dental, podia-
    15  try  or  optometrical  society,  any such society itself, a professional
    16  standards review organization or  an  individual  when  such  committee,
    17  subcommittee,  society,  organization  or  individual  is performing any
    18  medical or quality assurance review function including the investigation
    19  of an incident reported pursuant to section 29.29 of the mental  hygiene
    20  law,  either  described  in  clauses  (a)  and  (b) of this subdivision,
    21  required by law, or involving any controversy or dispute between  (i)  a
    22  physician,  dentist, podiatrist or optometrist or hospital administrator
    23  and a patient concerning  the  diagnosis,  treatment  or  care  of  such
    24  patient  or  the  fees or charges therefor or (ii) a physician, dentist,

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02508-01-3
        A. 5316                             2

     1  podiatrist or optometrist or hospital administrator and  a  provider  of
     2  medical,  dental,  podiatric  or  optometrical  services  concerning any
     3  medical or health charges or fees of such physician, dentist, podiatrist
     4  or  optometrist,  or (d) a committee appointed pursuant to section twen-
     5  ty-eight hundred five-j of the public health law to participate  in  the
     6  medical and dental malpractice prevention program, or (e) any individual
     7  who  participated in the preparation of incident reports required by the
     8  department of health pursuant to section twenty-eight hundred five-l  of
     9  the  public  health  law, or (f) a committee established to administer a
    10  utilization review plan, or a committee  having  the  responsibility  of
    11  evaluation  and improvement of the quality of care rendered, in a health
    12  maintenance organization  organized  under  article  forty-four  of  the
    13  public health law or article forty-three of the insurance law, including
    14  a  committee  of  an  individual  practice  association or medical group
    15  acting pursuant to a contract with such a health  maintenance  organiza-
    16  tion,  shall  be liable in damages to any person for any action taken or
    17  recommendations made, by him or her within the scope of his or her func-
    18  tion in such capacity provided that (a) such individual has taken action
    19  or made recommendations within the scope of  his  or  her  function  and
    20  without malice, and (b) in the reasonable belief after reasonable inves-
    21  tigation  that  the  act or recommendation was warranted, based upon the
    22  facts disclosed.
    23    Neither the proceedings nor the records relating to performance  of  a
    24  medical  or  a  quality  assurance review function or participation in a
    25  medical  and  dental  malpractice  prevention  program  nor  any  report
    26  required  by  the  department of health pursuant to section twenty-eight
    27  hundred five-l of the public health law described herein, including  the
    28  investigation  of  an incident reported pursuant to section 29.29 of the
    29  mental hygiene law, shall be subject to disclosure under  article  thir-
    30  ty-one  of  the  civil  practice  law  and  rules  except as hereinafter
    31  provided or as provided by any other provision  of  law.  No  person  in
    32  attendance  at a meeting when a medical or a quality assurance review or
    33  a medical and dental  malpractice  prevention  program  or  an  incident
    34  reporting  function described herein was performed, including the inves-
    35  tigation of an incident reported pursuant to section 29.29 of the mental
    36  hygiene law, shall be required to testify as to what transpired thereat.
    37  The prohibition relating to discovery of testimony shall [not] apply  to
    38  the statements made by any person in attendance at such a meeting who is
    39  a  party  to  an  action  or  proceeding the subject matter of which was
    40  reviewed at such meeting.
    41    § 2. Subdivision 2 of section 2805-m of  the  public  health  law,  as
    42  amended  by  chapter  808  of  the  laws  of 1987, is amended to read as
    43  follows:
    44    2. Notwithstanding any other provisions of law, none of  the  records,
    45  documentation  or  committee  actions  or  records  required pursuant to
    46  sections twenty-eight hundred five-j and twenty-eight hundred five-k  of
    47  this  article,  the  reports  required  pursuant to section twenty-eight
    48  hundred five-l of this article nor any incident  reporting  requirements
    49  imposed upon diagnostic and treatment centers pursuant to the provisions
    50  of  this chapter shall be subject to disclosure under article six of the
    51  public officers law or article thirty-one of the civil practice law  and
    52  rules,  except  as  hereinafter  provided  or  as  provided by any other
    53  provision of law. No person in attendance  at  a  meeting  of  any  such
    54  committee  shall  be  required to testify as to what transpired thereat.
    55  The prohibition relating to discovery of testimony shall [not] apply  to
    56  the statements made by any person in attendance at such a meeting who is
        A. 5316                             3

     1  a  party  to  an  action  or  proceeding the subject matter of which was
     2  reviewed at such meeting.
     3    § 3. This act shall take effect on the one hundred eightieth day after
     4  it  shall  have  become  a  law  and  shall  apply  to  all  actions and
     5  proceedings commenced on or after such date.