§ 315. Professional malpractice or misconduct; reporting requirements

(a) Every organization or person authorized to issue professional liability insurance policies in this state shall report any disposition, whether by judgment or settlement, of any claim made against an individual licensed pursuant to the provisions of title eight of the education law where the claim was based upon fraud, incompetence or negligence except that reports for physicians, physician’s assistants and specialist’s assistants shall be reported pursuant to the provisions of subsection (b) hereof. (b) (1) Each insurance company engaged in issuing professional medical malpractice insurance in this state the medical malpractice insurance association shall file with the superintendent and with the commissioner of health quarterly reports on all claims for medical malpractice made against any of its insureds and received by it during the preceding three month period, a report of any surcharge or merit-rating adjustment made on an insured’s premium and the reason for the surcharge or merit-rating adjustment and a report of any cancellation, including voluntary cancellation by the insured and the reason for the cancellation, of its insureds professional medical liability insurance for reasons other than non-payment of premiums during the preceding three month period. (2) Each hospital, as defined in article twenty-eight of the public health law, which, and each health care practitioner licensed, certified or registered pursuant to the provisions of title eight of the education law who, is self-insured for professional medical malpractice or is insured for professional medical malpractice with an insurance company not licensed to do business in this state shall also file quarterly reports with the superintendent and the commissioner of health on all claims for medical malpractice made against him, her, or it during the preceding three month period. For purposes of this section, a hospital which, or individual who, is self-insured for professional medical malpractice shall mean a hospital which, or individual who, is not insured for professional medical malpractice with either an insurance company engaged in issuing professional medical malpractice insurance in this state or the medical malpractice insurance association or an insurance company not licensed to do business in this state. (c) Reports required by this section shall contain the following information: (1) the name and address of the professional licensee against whom such claim is made, including the name and address of the hospital, other person or institution if the report is made pursuant to subsection (b) hereof; (2) the name, address and age of the claimant or plaintiff; (3) the nature and substance of the claim; (4) the date and place in which the claim arose; (5) within three months after final disposition of the claim, the amounts paid, if any, and the date and manner of disposition (by judgment, settlement or otherwise); (6) the reasons for the cancellation of professional liability insurance for reasons other than non-payment of premiums; and (7) such additional information as the superintendent or the commissioner of education shall require for reports required by subsection (a) hereof and as the superintendent and commissioner of health shall require for reports required by subsection (b) hereof. (d) (1) Reports required by subsection (a) hereof shall be in writing on a form prescribed by the superintendent and commissioner of education and shall be submitted to the department of education within sixty days of the date of any settlement or judgment. (2) Reports required by subsection (b) hereof shall be in writing on a form prescribed by the superintendent and commissioner of health and shall be submitted to them not less than quarterly on dates jointly determined by them and shall contain information received during the preceding three month period concerning claims received, additional required data not previously reported and disposition of claims. (e) Written reports and other documentation compiled pursuant to subsection (a) hereof shall be admissible in evidence in any administrative or judicial action or proceeding. (f) Any report or information furnished or compiled pursuant to this section shall be deemed to be a confidential communication. Reports required by subsection (a) hereof shall not be subject to inspection or disclosure in any manner except upon written request by a duly authorized public agency or pursuant to a judicial subpoena issued in a pending action or proceeding. Reports required by subsection (b) hereof shall not be open for review or be subject to subpoena except by a public agency or authority of this state. (g) Malpractice insurance compliance reporting requirements. The failure to make any report required by this section shall constitute a misdemeanor. The department of health shall oversee the enforcement of this subdivision, and on or before June thirtieth of each calendar year provide a report to the governor and the legislature regarding industry compliance. Such report shall include a recommendation from the department regarding changes in the applicable penalties for noncompliance, which are necessary to ensure the integrity of the reporting system. The department shall further study the necessity of assessing penalties for false reporting by physicians, hospitals, or health care plans for purposes of collecting and disseminating data required to be disclosed pursuant to title one of article twenty-nine-d of the public health law.

 

§ 2805-d. Limitation of medical, dental or podiatric malpractice action based on lack of informed consent.

1. Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.

2. The right of action to recover for medical, dental or podiatric malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.

3. For a cause of action therefor it must also be established that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought.

4. It shall be a defense to any action for medical, dental or podiatric malpractice based upon an alleged failure to obtain such an informed consent that: (a) the risk not disclosed is too commonly known to warrant disclosure; or (b) the patient assured the medical, dental or podiatric practitioner he would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient assured the medical, dental or podiatric practitioner that he did not want to be informed of the matters to which he would be entitled to be informed; or (c) consent by or on behalf of the patient was not reasonably possible; or (d) the medical, dental or podiatric practitioner, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent to which such alternatives or risks were disclosed to the patient because he reasonably believed that the manner and extent of such disclosure could reasonably be expected to adversely and substantially affect the patient’s condition.

§ 2805-j. Medical, dental and podiatric malpractice prevention program.

1. Every hospital shall maintain a coordinated program for the identification and prevention of medical, dental and podiatric malpractice. Such program shall include at least the following: (a) The establishment of a quality assurance committee with the responsibility to review the services rendered in the hospital in order to improve the quality of medical, dental and podiatric care of patients and to prevent medical, dental and podiatric malpractice. Such committee shall oversee and coordinate the medical, dental and podiatric malpractice prevention program and shall insure that information gathered pursuant to the program is utilized to review and to revise hospital policies and procedures. At least one member of the committee shall be a member of the governing board of the hospital who is not otherwise affiliated with the hospital in an employment or contractual capacity; (b) A medical, dental and podiatric staff privileges sanction procedure through which credentials, physical and mental capacity and competence in delivering health care services are periodically reviewed, and reviewed as otherwise warranted in specific instances and circumstances, as part of an evaluation of staff privileges; (c) The periodic review and the review as otherwise warranted in specific instances and circumstances of the credentials, physical and mental capacity and competence in delivering health care services of all persons who are employed or associated with the hospital; (d) A procedure for the prompt resolution of grievances by patients or their representatives related to accidents, injuries, treatment and other events that may result in claims of medical, dental or podiatric malpractice; (e) The maintenance and continuous collection of information concerning the hospital’s experience with negative health care outcomes and incidents injurious to patients, patient grievances, professional liability premiums, settlements, awards, costs incurred by the hospital for patient injury prevention and safety improvement activities; (f) The maintenance of relevant and appropriate information gathered pursuant to paragraphs (a) through (e) of this subdivision concerning individual physicians, dentists and podiatrists within the physician’s, dentist’s or podiatrist’s personnel or credential file maintained by the hospital; (g) Education programs dealing with patient safety, injury prevention, staff responsibility to report professional misconduct, the legal aspects of patient care, improved communication with patients and causes of malpractice claims for staff personnel engaged in patient care activities; (h) Continuing education programs for medical, dental and podiatric staff in their areas of specialty; and (i) Policies to ensure compliance with the reporting requirements of section twenty-eight hundred three-e of this article and subdivision eleven of section two hundred thirty of this chapter.(j) For the purposes of this section, the term “hospital” shall have the same meaning as is set forth in subdivision ten of section twenty-eight hundred one of this article.

2. Any person who, in good faith and without malice, provides information to further the purposes of the medical, dental and podiatric malpractice prevention program or who, in good faith and without malice, participates on the quality assurance committee shall not be subject to an action for civil damages or other relief as a result of such activity. Any hospital, or any person acting on behalf of such hospital, who, in good faith and without malice, takes or fails to take any action as a result of a review conducted pursuant to paragraph (b) or (c) of subdivision one of this section, shall not be subject to an action for civil damages or other monetary relief as a result of such action or failure to act, provided, however, that nothing in this subdivision shall relieve any hospital of any liability in an action for medical, dental or podiatric malpractice based on an act or failure to act as a result of a review conducted pursuant to paragraph (b) or (c) of subdivision one of this section, and provided further that nothing herein shall affect the authority of the commissioner pursuant to this chapter.

3. The commissioner shall make, adopt, promulgate and enforce such rules and regulations as he may deem appropriate to effectuate the purposes of this section.

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