SB 2413

Present law requires records of a quality improvement committee ( " QIC "" ), and testimony or statements by a healthcare organization's officers, directors, trustees, healthcare providers, administrative staff, employees or other committee members or attendees relating to activities of the QIC, to be confidential, privileged, and protected from direct or indirect means of discovery, subpoena or admission into evidence in any judicial or administrative proceeding. Any person who supplies information, testifies, or makes statements as part of a QIC is not required to provide information as to the information, testimony or statements provided to or made before such a committee or opinions formed by such person as a result of committee participation. However, information, documents or records, which are not produced for use by a QIC or which are not produced by persons acting on behalf of a QIC, and are otherwise available from original sources, are not immune from discovery or use in any judicial or administrative proceeding merely because such information, documents or records were presented during proceedings of such committee. Present law authorizes a QIC to share information and documents, including complaints, incident reports, and testimony and statements by any person to the QIC, with one or more other QICs. Information and documents so disclosed, and any information and documents created or maintained as a result of the sharing of such information and documents, is confidential, privileged, and protected from direct or indirect means of discovery, subpoena or admission into evidence, to the same extent as provided above. The QIC sharing such information with another QIC must determine the manner and process by which it will share such information and documents, which process may include requiring a written agreement between QICs regarding the sharing of practitioner infor mation. The QIC and its sponsoring healthcare organization cannot be held liable and are immune from suit for any disclosure or sharing of information in compliance. This bill adds a good faith disclosure of information related to an activity of a QIC made by a healthcare provider or healthcare organization to a patient or family member of a patient is not a waiver of the privilege and confidentiality protections pro vided. Such disclosures are considered separate from a QIC proceeding and do not affect the privilege attributed to the QIC documentation. This bill provides that a healthcare provider and healthcare organization are not required to disclose findings, determinations, or conclusions of a QIC during a legal, administrative, or other proceeding. Participation in or the outcomes from the QIC review must remain confiden tial and privileged unless otherwise mandated by federal law. OPEN DISCUSSION This bill authorizes a healthcare provider or healthcare organization to voluntarily engage in open, post-adverse healthcare incident communications with a patient or the patient's family regarding the incident. Such communications are not an admission of liability and are protected from discovery. A healthcare provider or healthcare organization engaging in voluntary communications is immune from liability for the contents of the communication, as long as the communication is undertaken in good faith. If an adverse healthcare incident occurs, then this bill authorizes a healthcare provider or healthcare organization to elect to engage in an open discussion with a patient or invite a patient to participate in the open discussion with the purpose of addressing the incident and proposing resolutions. If the patient is incapacitated or deceased, then a healthcare provider or a healthcare organization may engage in an open discussion with a patient's family member or legal representative. For a minor patie nt, the open discussion must include the patient's guardian. The following conditions apply to an open discussion:  Any communication made during the open discussion process is privileged and confidential; not subject to discovery, subpoena, or use as evidence in any judicial, administrative, or arbitration proceeding; and encouraged to include offers of settlement or corrective actions without implying fault or liability.  An individual with whom a healthcare provider or healthcare organization engages in the open discussion process following an adverse healthcare incident, including a patient and any other affected person, must be advised of the patient's right to legal counsel before participating in the open discussion.  The healthcare provider or healthcare organization must notify an individual with whom such provider or organization attempts to engage in an open discussion with in writing that participation in an open discussion does not extend a statute of limitation for filing a lawsuit unless agreed to in writing by each party.  Unless otherwise agreed upon by the patient, only a party involved in the adverse healthcare incident and the party's representatives, including legal counsel, may participate in the open discussion process. As used in this bill, an "" o pen discussion"" is any communication that is made and includes memoranda, work product, documents, and other materials that are prepared for, or submitted in the course of or in connection with, communications under this bill. However, t h e term does not include any communications, memoranda, work product, documents, or other materials that are otherwise subject to discovery and that were not prepared specifically for use pursuant to this bill. This bill requires a party wishing to waive confidentiality on open discussion materials provide an express waiver in writing. The waiver must clearly identify the materials involved and specify the scope of the waiver. The waiver must also include:  A list of the specific materials covered by the waiver.  A statement of the purpose for waiving confidentiality.  An acknowledgment of the waiver's implications.  The duration of the waiver, if applicable. This bill requires t he waiver to be signed and dated by an authorized representative. An authorized representative may utilize an electronic signature. The waiver may be revoked at any time through written notice, and such revocation becomes effective upon receipt, except where the wa iver has been relied upon for a material action. This requirement does not apply when disclosures are mandated by law or court order."