New York Medical Malpractice Statutes
* § 2803-e. Reporting incidents of possible professional misconduct.
1. (a) Hospitals and other facilities approved pursuant to this article shall make a report or cause a report to be made within thirty days of the occurrence of any of the following: the suspension, restriction, termination or curtailment of the training, employment, association or professional privileges or the denial of the certification of completion of training of an individual licensed pursuant to the provisions of title eight of the education law or of a medical resident with such facility for reasons related in any way to alleged mental or physical impairment, incompetence, malpractice or misconduct or impairment of patient safety or welfare; the voluntary or involuntary resignation or withdrawal of association or of privileges with such facility to avoid the imposition of disciplinary measures; or the receipt of information which indicates that any professional licensee or medical resident has been convicted of a crime; the denial of staff privileges to a physician if the reasons stated for such denial are related to alleged mental or physical impairment, incompetence, malpractice, misconduct or impairment f patient safety or welfare.
(b) Hospitals and other facilities approved pursuant to this article shall make a report or cause a report to be made within thirty days of obtaining knowledge of any information which reasonably appears to show that a physician is guilty of professional misconduct as defined in section sixty-five hundred thirty or sixty-five hundred thirty-one of the education law. A violation of this paragraph shall not be subject to the provisions of section twelve-b of this chapter.
2. Reports of possible professional misconduct made pursuant to this section shall be made in writing to the education department with respect to all individuals licensed pursuant to title eight of the education law except that such reports shall be made to the department of health in the case of physicians, physician’s assistants and specialist’s assistants. Written reports shall include the following information: (a) name, address, profession and license number of the individual; (b) a description of the action taken by the hospital including the reason for the action and the date thereof, or the nature of the action or conduct which led to the resignation or withdrawal, and the date thereof, stated with sufficient specificity to allow a reasonable person to understand which of the reasons enumerated in subdivision one of this section led to the action of the hospital or the resignation or withdrawal of the individual, and, if the reason was an act or omission of the individual, the particular act or omission; (c) any criminal conviction of which the hospital has knowledge; and (d) such other information as the education department or the department of health shall require.
3. (a) Any report or information furnished to the education department or department of health in accordance with the provisions of this section shall be deemed a confidential communication and shall not be subject to inspection or disclosure in any manner except upon formal written request by a duly authorized public agency or pursuant to a judicial subpoena issued in a pending action or proceeding. (b) Any person, facility or corporation which makes a report pursuant to this section in good faith and without malice shall have immunity from any liability, civil or criminal, for having made such a report. For the purpose of any proceeding, civil or criminal, the good faith of any person required to make a report shall be presumed.
* NB There are 2 § 2803-e’s
§ 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.
