South Carolina Legislature MobileReference is to the bill as introduced.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/SECTION 1. Article 3, Chapter 7, Title 44 of the 1976 Code is amended by adding:
"Section 44-7-390.
There is no monetary liability on the part of, and no
cause of action for damages arising against, a hospital licensed
under this article, its parent, subsidiaries, health care
system, physician practices owned by the hospital (its parent or
subsidiaries), directors, officers, agents, employees, medical
staff members, external reviewers, witnesses, or a member of any
committee of a licensed hospital, whether permanent or ad hoc,
including the hospital's governing body, for any act or
proceeding undertaken or performed without malice, made after
reasonable effort to obtain the facts, and the action taken was
in the belief that it is warranted by the facts known, arising
out of or relating to:
(1) sentinel event
investigations or root cause analyses, or both, as prescribed by
The Joint Commission or any other organization under whose
accreditation a hospital is deemed to meet the Centers for
Medicare and Medicaid Services' conditions of participation;
(2) investigations into
the competence or conduct of hospital employees, agents, members
of the hospital's medical staff or practitioners who have been
granted privileges by the hospital's governing body, relating to
the quality of patient care, and any disciplinary proceedings or
fair hearings related thereto, provided the medical staff
operates pursuant to written bylaws that have been approved by
the governing body of the hospital;
(3) quality assurance
reviews;
(4) the medical staff
credentialing process, provided the medical staff operates
pursuant to written bylaws that have been approved by the
governing body of the hospital;
(5) reports by a
hospital to its insurance carriers;
(6) reviews or
investigations to evaluate the quality of care provided by
hospital employees, agents, members of the hospital's medical
staff, or practitioners who have been granted privileges by the
hospital's governing body; or
(7) reports or
statements, including, but not limited to, those reports or
statements to the National Practitioner Data Bank and the South
Carolina Board of Medical Examiners, that provide analysis or
opinion (including external reviews) relating to the quality of
care provided by hospital employees, agents, members of the
hospital's medical staff, or practitioners who have been granted
privileges by the hospital's governing body.
Section 44-7-392.
(A)(1) All proceedings of, and all
data, documents, records, and information prepared or acquired
by, a hospital licensed under this article, its parent,
subsidiaries, health care system, committees, whether permanent
or ad hoc, including the hospital's governing body, or physician
practices owned by the hospital (its parent or subsidiaries),
relating to the following are confidential:
(a)
sentinel event investigations or root cause analyses, or
both, as prescribed by The Joint Commission or any other
organization under whose accreditation a hospital is deemed to
meet the Centers for Medicare and Medicaid Services' conditions
of participation;
(b)
investigations into the competence or conduct of hospital
employees, agents, members of the hospital's medical staff or
practitioners who have been granted privileges by the hospital's
governing body, relating to the quality of patient care, and any
disciplinary proceedings or fair hearings related thereto;
(c)
quality assurance reviews;
(d)
the medical staff credentialing process;
(e)
reports by a hospital to its insurance carriers;
(f)
reviews or investigations to evaluate the quality of care
provided by hospital employees, agents, members of the
hospital's medical staff, or practitioners who have been granted
privileges by the hospital's governing body;
(g)
reports or statements, including, but not limited to,
those reports or statements to the National Practitioner Data
Bank and the South Carolina Board of Medical Examiners, that
provide analysis or opinion (including external reviews)
relating to the quality of care provided by hospital employees,
agents, members of the hospital's medical staff, or
practitioners who have been granted privileges by the hospital's
governing body; or
(h)
incident or occurrence reports and related investigations,
unless the report is part of the medical record.
(2)
The proceedings and data, documents, records, and
information described in this subsection (A) may be shared with
a parent corporation, subsidiaries, other hospitals in the
health care system, directors, officers, employees, and agents
of the hospital and if shared, remain confidential. These
proceedings and data, documents, records, and information in
this subsection (A) are not subject to discovery, subpoena, or
introduction into evidence in any civil action unless the
hospital and any affected person who is a party to such action
waives the confidentiality in writing. Notwithstanding the
foregoing, however, in the event an affected person asserts a
claim in any civil action against a hospital, its parent,
affiliates, directors, officers, agents, employees, or member of
any committee of a licensed hospital, relating to any proceeding
identified in this subsection (A), the hospital may decide
without consultation with the affected person whether to waive
confidentiality in that civil action. Likewise, if a hospital
asserts a claim in any civil action against an affected person
relating to any proceeding identified in this subsection (A) in
which the affected person was a party, the affected person may
use information in the affected person's possession that is
otherwise confidential under this section in that civil action.
(3)
Data, documents, records, or information which are
otherwise available from original sources are not confidential
and are not immune from discovery from the original source under
this section or use in a civil action merely because they were
acquired by the hospital.
(4)
This subsection does not make confidential the outcome of
a practitioner's application for medical staff membership or
clinical privileges, nor does it make confidential the list of
clinical privileges requested by the practitioner or the list of
clinical privileges that were approved. However, the
practitioner's application for medical staff membership or
clinical privileges, and all supporting documentation submitted
or requested for the application are confidential.
Nevertheless, the application itself may be obtained from the
physician requesting privileges or the practice where the
physician works as an employee or an independent contractor.
(5)
If a practitioner is the subject of a disciplinary
proceeding or fair hearing, this subsection does not, subject to
the provisions of the medical staff bylaws, prohibit the
practitioner from receiving data, documents, records, and
information relating to this practitioner that is relevant to
the proceeding or fair hearing, even if the data, documents,
records, and information are otherwise confidential under this
section. Such a disclosure to a practitioner in a disciplinary
proceeding or fair hearing must not be considered a waiver of
any privilege or confidentiality provided for in this subsection
(A). The practitioner must not, however, without the written
consent of the hospital, publish to any third party, other than
legal counsel or a person retained for the purposes of
representing the practitioner in a disciplinary proceeding or
fair hearing, the data, documents, records, or information that
were disclosed to him as part of the disciplinary proceeding or
fair hearing.
(6)
There is nothing in this section which makes any part of a
patient's medical record confidential from the patient,
including any redactions, corrections, supplements or amendments
to the patient's record, whether electronic or written.
(B) The confidentiality
provisions of subsection (A) do not prevent committees appointed
by the Department of Health and Environmental Control from
issuing reports containing solely nonidentifying data and
information.
(C) Nothing in this
section affects the duty of a hospital licensed by the
Department of Health and Environmental Control to report
accidents or incidents pursuant to the department's regulations.
However, anything reported pursuant to the department's
regulations must not be considered a waiver of any privilege or
confidentiality provided in subsection (A).
(D) Any data,
documents, records or information that is reported to or
reviewed by The Joint Commission or other accrediting bodies
must not be considered a waiver of any privilege or
confidentiality provided for in subsection (A).
(E) Any data,
documents, records, or information of an action by a hospital to
suspend, revoke, or otherwise limit the medical staff membership
or clinical privileges of a practitioner that is submitted to
the South Carolina Board of Medical Examiners pursuant to a
report required by Section 44-7-70 or the National Practitioner
Data Bank must not be considered a waiver of any privilege or
confidentiality provided for in subsection (A).
(F) An affected person
may file a civil action to assert a claim of confidentiality
before a court of competent jurisdiction and file a motion to
request the court to issue an order to enjoin a hospital from
releasing data, documents, records, or information to the
department, the South Carolina Board of Medical Examiners, the
National Practitioner Data Bank, and The Joint Commission or
other accrediting bodies that are not required by law or
regulation to be released by a hospital. The data, documents,
records, or information in controversy must be filed under seal
with the court having jurisdiction over the pending action and
are subject to judicial review. If court finds that a party
acted unreasonably in unsuccessfully asserting the claim of
confidentiality under this subsection, the court shall assess
attorney's fees against that party.
(G) For purposes of
this section, an 'affected person' means a person, other than a
patient, who is a subject of a proceeding enumerated in
subsection (A)(1).
Section 44-7-394. (A)
If a hospital or affected person asserts a
claim of confidentiality over documents pursuant to Section
44-7-392 and the party seeking the documents objects, then upon
motion to the court having jurisdiction over the pending action,
the court will determine if any of the documents are subject to
discovery. The court may order production of the documents to
the requesting party. If the court finds that a hospital or
affected person acted unreasonably in unsuccessfully asserting
the claim of confidentiality, the court may assess attorney's
fees against that party for any fees incurred by the requesting
party in obtaining the documents.
Further, a party to a medical or hospital
malpractice case shall not offer trial testimony of a person who
was a witness to the medical or hospital care that is the
subject of the medical or hospital malpractice case if the trial
testimony would be inconsistent with a prior written,
electronic, video or audio statement of fact submitted by the
person and that is confidential under Section 44-7-392 unless
such prior inconsistent statement of fact is first produced to
all parties in the medical or hospital malpractice case. Upon
request by a party, a privilege log shall be provided by a
hospital to all parties in the medical or hospital malpractice
case identifying any prior written, electronic, video or audio
statements of fact relating to the medical or hospital care
that is the subject of the medical or hospital malpractice case
that were given by a witness who is testifying at trial. Upon
motion of any party, a prior statement of fact, whether written,
electronic, video or audio, that is confidential under Section
44-7-392, may be reviewed by the court in camera to determine
whether the prior statement of fact is inconsistent with the
trial testimony offered in the medical or hospital malpractice
case. If the court concludes that the prior statement of fact
is inconsistent, the court may order that the prior written
statement of fact be produced to the moving party.
(B) For purposes of
this section an 'affected person' means a person, other than a
patient, who is a subject of a proceeding enumerated in Section
44-7-392(A)(1).
(C) If the court orders
a hospital or affected person to produce documents to a third
party under this subsection, the hospital or affected person
shall have the right to immediately appeal that order, and the
filing of the appeal shall stay the enforcement of the order
compelling the production."
SECTION 2. Section 40-71-10(B) of the 1976 Code is amended to read:
"(B) There is no
monetary liability on the part of, and no cause of action for
damages arising against, a member of an appointed committee
which is formed to maintain professional standards of a state or
local professional society as defined in this section or
an appointed member of a committee of a medical staff of
a licensed hospital, provided the medical staff operates
pursuant to written bylaws that have been approved by the
governing board of the hospital, or a committee
appointed by the Department of Health and Environmental Control
to review patient medical and health records in order to study
the causes of death and disease for any act or proceeding
undertaken or performed within the scope of the functions of the
committee if the committee member acts without malice, has made
a reasonable effort to obtain the facts relating to the matter
under consideration, and acts in the belief that the action
taken by him is warranted by the facts known to him."
SECTION 3. This act takes effect upon approval by the Governor and applies to any investigative action undertaken as provided herein where the underlying event giving rise to the investigation occurs on or after the effective date. /
Renumber sections to conform.
Amend title to conform.