Louisiana Health Law

Title 13 §3715.3. Peer review committee records; confidentiality (posted 17 Feb 2004)

A. Notwithstanding the provisions of R.S. 44:7(D) or any other law to the contrary, all records, notes, data, studies, analyses, exhibits, and proceedings of:

(1) Any public hospital committee, medical organization peer review committee, any nationally recognized improvement agency or commission, including but not limited to the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), or any committee or agency thereof, or any healthcare licensure agency of the Louisiana Department of Health and Hospitals, public hospital board while conducting peer reviews, dental association peer review committee, professional nursing association peer review committee, extended care facility committee, nursing home association peer review committee, peer review committee of a group medical practice of twenty or more physicians, peer review committee of a freestanding surgical center licensed pursuant to R.S. 40:2131 et seq., or health maintenance organization peer review committee, including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established under the bylaws, rules, or regulations of such organization or institution, or

(2) Any hospital committee, the peer review committees of any medical organization, dental association, professional nursing association, nursing home association, social workers association, group medical practice of twenty or more physicians, nursing home, ambulatory surgical center licensed pursuant to R.S. 40:2131 et seq., ambulance service company, health maintenance organization, any nationally recognized improvement agency or commission, including but not limited to the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), or any committee or agency thereof, or any healthcare licensure agency of the Louisiana Department of Health and Hospitals, or healthcare provider as defined in R.S. 40:1299.41(A)(1), or extended care facility committee, including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established by the peer review committees of a medical organization, dental organization, group medical practice of twenty or more physicians, social workers association, ambulatory surgical center licensed pursuant to R.S. 40:2131 et seq., ambulance service company, health maintenance organization, or healthcare provider as defined in R.S. 40:1299.41(A)(1), or private hospital licensed under the provisions of R.S. 40:2100 et seq., shall be confidential wherever located and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be available for discovery or court subpoena regardless of where located, except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only. However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee.

B. No employee, physician, dentist, public or private hospital, organization, or institution furnishing information, data, reports, or records to any such committee with respect to any patient examined or treated by such physician or dentist or confined in such hospital or institution shall be liable in damages to any person by reason of furnishing such information.

C. No member of any such committee designated in Subsection A of this Section or any sponsoring entity, organization, or association on whose behalf the committee is conducting its review shall be liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him.

D. Medicaid or Medicare benefits or insurance benefits provided by a private insurer shall not be denied to any person due to inability to secure records or proceedings referred to in this Section.

E. Nothing contained herein shall be construed to prevent disclosure of such data to appropriate state or federal regulatory agencies which by statute or regulation are otherwise entitled to access to such data.

F. Nothing herein shall be construed to prevent disclosure of a patient's hospital record, as defined by R.S. 40:2144, to the patient or his duly authorized representative.

G.(1) As used in this Subsection, the following terms shall mean:

(a) "Board" means the Louisiana State Board of Medical Examiners, Louisiana State Board of Dentistry, Louisiana State Board of Psychologists, Louisiana State Board of Nursing, Louisiana Board of Pharmacy, as well as any Louisiana licensing and regulatory board or agency whose licensees, certificate holders, or registrants are subject to any form of peer review identified in Subsection A of this Section.

(b) "Licensee" means an individual who possesses a license, certificate, or registration duly issued by a board, or an individual who has made application for such a license, certificate, or registration.

(2) The boards defined in Subparagraph (1)(a) of this Subsection are hereby designated as appropriate state regulatory agencies as provided by Subsection E of this Section. Any board whose licensees are subject to any form of peer review identified in Subsection A of this Section shall be granted access to such peer review information, data, reports, or records as that board determines is necessary to an investigation or an adjudication of an individual over whom such board has regulatory authority. The board having access to such peer review information, data, reports, or records shall receive and maintain that information, data, reports, or records as confidential and privileged and shall take measures to preserve its confidentiality, including the assertion of all available evidentiary privileges and protection of patient identification as specified in R.S. 13:3715.1(J).

(3) When such disclosure is requested and made in a manner authorized in Paragraph G(4) of this Subsection, the verbal, written or other disclosure of peer review information, data, reports, or records by any person, committee, hospital, or other peer review entity described in Subsection A of this Section to any board conducting investigation or adjudication functions shall not constitute a waiver of any legal or evidentiary privilege, nor form the basis of any claim or suit for damages or injunctive relief of whatsoever kind or nature, including breach of confidentiality or invasion of privacy or otherwise, nor deprive the person, committee, hospital, or other peer review entity making the disclosure of the benefit of the immunities otherwise provided in Subsections B and C of this Section.

(4) Disclosure is deemed to be authorized in any of the following circumstances:

(a) An interview of a witness or potential witness conducted by a duly authorized officer, employee, or attorney on behalf of the Louisiana board, acting in his or her official capacity, and accompanied by a validly issued investigatory subpoena or subpoena duces tecum.

(b) As part of the production of documents in response to a validly issued investigative subpoena duces tecum by a board.

(c) In response to questions or as part of production of documents at a duly noticed deposition or any other form of discovery authorized under R.S. 49:956(6) in an adjudication proceeding pending before such board.

(d) In response to questions or information provided pursuant to a subpoena or subpoena duces tecum issued in connection with an adjudication proceeding conducted by a board, which hearing may be conducted in executive session to preserve confidentiality of peer review privileged materials, including information, data, reports, and records.

(e) In response to duly authorized discovery as contemplated by the Louisiana Code of Civil Procedure, surveys, statements of deficiencies, and records pertaining to the results of investigations of surveys conducted by or on behalf of any governmental regulatory agency may be discoverable and admissible in a civil action against a healthcare provider if the surveys and related documents are directly related to the type of injury allegedly sustained by the patient at issue in the civil action and the deficiencies have either been admitted by the healthcare provider or have been declared valid through the appellate process established by the administrative agency in charge of reviewing surveys. When a party seeks to admit into evidence surveys, statements of deficiencies, and related documents, any party to a civil action may request and the court, using its discretion, may conduct a voir dire of the witness supporting the surveys and related documents to determine whether the deficiency is based on reliable evidence.

(5) When one or more of the provisions of Paragraph (4) are applicable, no committee or entity listed in Subsection A of this Section and no health care provider or health care institution, including the involved licensee or person over whom such board has regulatory authority, shall refuse to provide verbal, written, or recorded information, data, reports, or records as a witness or otherwise on the basis of the privilege provided in Subsection A of this Section or the healthcare provider - patient privilege provided in Code of Evidence Article 510.

Acts 1983, Act No. 698,§ 1, eff. July 21, 1983; Acts 1988, No. 689,§ 1, eff. July 15, 1988; Acts 1990, No. 486,§ 1; Acts 1991, No. 239,§ 1; Acts 1993, No. 561,§ 1; Acts 1993, No. 988,§ 1; Acts 1995, No. 786,§ 1, eff. Sept. 1, 1995; Acts 1995, No. 1073,§ 1; Acts 1995, No. 1163,§ 1; Acts 1999, No. 764,§ 1; Acts 1999, No. 1213,§ 1; Acts 2001, No. 206,§ 1.