MEMORANDUM IN SUPPORT
Referred to Assembly Codes Committee 2-8-11
Held in Senate Health Committee Agenda 2-14-11
AN ACT to amend the public health law and the education law, in relation to quality assurance and peer review activities.
The American Congress of Obstetricians and Gynecologists, District II (ACOG) strongly supports this legislation, which would extend confidentiality protections to statements made by any person in attendance at a peer review proceeding who is or may become a party to a lawsuit relating to the subject matter for which the peer review proceeding was convened.
Under current law, confidentiality protections exist for information gathered during quality assurance and peer review proceedings. These protections exist to enhance the objectivity of the review process and to ensure that physicians will speak openly and candidly when analyzing the incident under review.
However, these protections are not extended to statements made by a physician who is or may become a party to a lawsuit relating to the subject matter for which the peer review proceeding was convened. As a result, any information volunteered by that physician is subject to discovery and can be used against him or her in a subsequent legal action.
The fear of litigation obstructs progress in ensuring patient safety. Physicians are deterred from actively participating in quality assurance activities when they fear it will result in increased lawsuits. This compromises the effectiveness of the peer review process in identifying and correcting medical errors.
Protecting the peer review process, including root cause analyses, allows a health care organization to conduct a thorough and open review of any adverse event in order to identify system problems and avoid future adverse events. When relevant, such an analysis includes careful scrutiny of individual practitioner performance.
ACOG seeks to create a peer review environment in New York State similar to its maternal mortality review process—the Safe Motherhood Initiative (SMI). In 2001, ACOG and the New York State Department of Health (NYSDOH) established the SMI to study pregnancy-related deaths through hospital based reviews. Through a confidential, non-punitive review of medical charts and interviews with providers, the SMI identifies the causes of maternal mortality and makes recommendations for management of obstetric emergencies. Since the Initiative’s inception, ACOG has focused special attention on the use of hospital drills and protocols to prevent obstetric emergencies like hemorrhage, which it found to be one of the leading causes of maternal death in New York State. Unfortunately, the SMI has been eliminated in the Governor’s 2010-11 Executive Budget.
The nine-year success of the SMI was attributable to confidentiality protections afforded to the SMI’s peer review process through Public Health Law 206(1)(j). This statute authorizes the Commissioner of the NYSDOH to conduct medical audits for the purpose of reducing morbidity and mortality and prohibits findings of studies from being used for any other purpose other than improving the quality of medical care. Moreover, such information is not admissible as evidence in any action of any kind in any court. In an era where concerns for liability exposure pervade the specialty of obstetrics, the confidentiality provisions afforded to the SMI enabled open discussions and analyses of the maternal mortality cases under review.
The health care system in New York State needs a peer review environment that encourages open communication among physicians in order to minimize and correct medical errors, such as those related to maternal mortality. Enacting this legislation will improve patient safety for all patients in New York State.
For these reasons, ACOG strongly supports this legislation and urges its passage.
February 18, 2011
The American Congress of Obstetricians and Gynecologists, District II (ACOG) represents the board certified obstetrician-gynecologists in the state who deliver health care to New York’s women. Our Albany office offers the New York State Legislature its resources as a scientific and educational organization dedicated to quality health care for women. If you have questions on this or any other state legislative proposal, please contact our office at 518-436-3461.
 Studdert, D. et al. "Medical Malpractice" (January 15, 2004). New England Journal of Medicine, 350; 283-292.