SB434 HJUD AM#1 3-6
Reese 3919
The Committee on the Judiciary moves to amend the bill on page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
“ARTICLE 3C. HEALTH CARE Peer review organization PROTECTION.
§30-3C-1. Definitions.
As used in this article:
“Document” means any information, data, reports, or records prepared by or on behalf of a health care provider and includes mental impressions, analyses, and/or work product.
“Health care
professionals” means individuals who are licensed to practice in any health
care field and individuals, who, because of their education, experience or
training participate as members of or consultants to a review organization
“Health care facility” means any clinic, hospital, pharmacy, nursing home, assisted living facility, residential care community, end-stage renal disease facility, home health agency, child welfare agency, group residential facility, behavioral health care facility or comprehensive community mental health center, intellectual/developmental disability center or program, or other ambulatory health care facility, in and licensed, regulated, or certified by the State of West Virginia under state or federal law and any state-operated institution or clinic providing health care and any related entity to the health care facility as that term is defined in §55-7B-1 et seq. of this code.
“Health care provider” means a person, partnership, corporation, professional limited liability company, health care facility, entity or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including a physician, osteopathic physician, physician assistant, advanced practice registered nurse, health care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, speech-language pathologist, audiologist, occupational therapist, psychologist, pharmacist, technician, certified nursing assistant, emergency medical service personnel, emergency medical services authority or agency, any person supervised by or acting under the direction of a licensed professional, any person taking actions or providing service or treatment pursuant to or in furtherance of a physician’s plan of care, a health care facility’s plan of care, medical diagnosis or treatment; or an officer, employee or agent of a health care provider acting in the course and scope of the officer’s, employee’s or agent’s employment.
“Peer review” means the
procedure for evaluation by health care professionals providers
of the quality, delivery, and efficiency of services ordered or
performed by other health care professionals, including practice analysis,
inpatient hospital and extended care facility utilization review, medical
audit, ambulatory care review, claims review and patient safety review,
preparation for or simulation of audits or surveys of any kind, and all forms
of quality assurance/performance improvement whether or not required by any
statute, rule, or regulation applicable to a health care facility or health
care provider.
“Professional society”
includes medical, psychological, nursing, dental, optometric, pharmaceutical,
chiropractic and podiatric organizations having as members at least a majority
of the eligible licentiates in the area or health care facility or agency
served by the particular organization
“Review organization” means
any committee or, organization, individual or group of
individuals engaging in peer review, including, without limitation, a
hospital medical executive committee and/or subcommittee thereof, a hospital
utilization review committee, a hospital tissue committee, a medical audit
committee, a health insurance review committee, a health maintenance
organization review committee, hospital, medical, dental and health service
corporation review committee, a hospital plan corporation review committee, a
professional health service plan review committee or organization, a dental
review committee, a physicians’ advisory committee, a podiatry advisory
committee, a nursing advisory committee, any committee or organization
established pursuant to a medical assistance program, the joint commission on
accreditation of health care organizations or similar accrediting body or any
entity established by such accrediting body or to fulfill the requirements of
such accrediting body, any entity established pursuant to state or federal law
for peer review purposes, and any committee established by one or more state or
local professional societies or institutes, to gather and review information
relating to the care and treatment of patients for the purposes of: (i)
Evaluating and improving the quality of health care rendered; (ii) reducing
morbidity or mortality; or (iii) establishing and enforcing guidelines designed
to keep within reasonable bounds the cost of health care. It shall also mean
any hospital board committee or organization reviewing the professional
qualifications or activities of its medical staff or applicants for admission
thereto, and any professional standards review organizations established or
required under state or federal statutes or regulations.
§30-3C-3.
Confidentiality of review organization’s records.
The proceedings and
records of a review organization shall be confidential and privileged and shall
not be subject to subpoena or discovery proceedings or be admitted as evidence
in any civil action arising out of the matters which are subject to evaluation
and review by such organization and no person who was in attendance at a
meeting of such organization shall be permitted or required to testify in any
such civil action as to any evidence or other matters produced or presented
during the proceedings of such organization or as to any findings,
recommendations, evaluations, opinions or other actions of such organization or
any members thereof: Provided, That information, documents or records
otherwise available from original sources are not to be construed as immune
from discovery or use in any civil action merely because they were presented
during proceedings of such organization, nor should any person who testifies
before such organization or who is a member of such organization be prevented
from testifying as to matters within his knowledge, but the witness shall not
be asked about his testimony before such an organization or opinions formed by
him as a result of said organization hearings: Provided, however, That
an individual may execute a valid waiver authorizing the release of the
contents of his file pertaining to his own acts or omissions, and such waiver
shall remove the confidentiality and privilege of said contents otherwise
provided by this section: Provided further, That upon further review by any
other review organization, upon judicial review of any finding or determination
of a review organization or in any civil action filed by an individual whose
activities have been reviewed, any testimony, documents, proceedings, records
and other evidence adduced before any such review organization shall be
available to such further review organization, the court and the individual
whose activities have been reviewed. The court shall enter such protective
orders as may be appropriate to provide for the confidentiality of the records
provided the court by a review organization and all papers and records relating
to the proceedings had before the reviewing court
(a) Any document prepared by or on behalf of a health care provider for the purpose of improving the quality, delivery, or efficiency of health care or for the purpose of credentialing or reviewing health care providers is confidential and privileged and shall not be subject to discovery in a civil action or administrative proceeding. Such documents include, without limitation:
(1) Nursing home, as referred to in W. Va. Code §55-7B-6(e), incident or event reports, except reports pertaining to the plaintiff of that civil action, or reports of same or similar incidents within a reasonable timeframe of the events at issue in the civil action, containing only factual information, but excluding personal identification information;
(2) Documents related to review organization proceedings for hiring, disciplining, terminating, credentialing, issuing staff privileges, renewing staff privileges, or alleged misconduct of a health care provider;
(3) Review organization documents;
(4) Quality control and performance improvement documents;
(5) Documents satisfying regulatory obligations related to quality assurance and performance improvement; and
(6) Reviews, audits, and recommendations of consultants or other persons or entities engaged in the performance of peer review.
(b) A person who testifies before a review organization, or who is a member of a review organization shall not be required to testify regarding, or be asked about, his or her testimony before such review organization, deliberations of the review organization, or opinions formed as a result of the review organization’s proceedings. A person who testifies before a review organization, or who is a member of such organization, shall not be prevented from testifying in court or an administrative hearing as to matters within his or her personal knowledge.
(d) Nothing in this section shall limit the disclosure of peer review proceedings, communications and documents by a review organization or a health care facility to a medical licensing board pursuant to the provisions of articles 3 and 14 of this chapter.
§30-3C-5. Original source; waivers; further proceedings.
Information
available from original sources are not to be construed as immune from
discovery or use in any civil action merely because they were included in any
report or analysis related to improving the quality, delivery, or efficiency of
health care or for the purpose of credentialing or reviewing health care
providers. However, no court may compel production of Documents
contained in peer review files are not discoverable on the basis that they were
not created as part of the peer review process; rather, the document must be
produced from the original source. Provided,
That if the party seeking production can show that obtaining source documents
will be unduly burdensome, the court may, in its discretion, order production
of the non-privileged documents contained in the peer review file.”