2018 New Mexico Statutes
Chapter 41 - Torts
Article 9 - Review Organization Immunity
Section 41-9-5 - Confidentiality of records of review organization.

Universal Citation: NM Stat § 41-9-5 (2018)
41-9-5. Confidentiality of records of review organization.

A. Except as provided in Subsection B of this section, all data and information acquired by a review organization in the exercise of its duties and functions shall be held in confidence and shall not be disclosed to anyone except to the extent necessary to carry out one or more of the purposes of the review organization or in a judicial appeal from the action of the review organization. No person described in Section 41-9-4 NMSA 1978 shall disclose what transpired at a meeting of a review organization except to the extent necessary to carry out one or more of the purposes of the review organization, in a judicial appeal from the action of the review organization or when subpoenaed by the New Mexico medical board. Information, documents or records otherwise available from original sources shall not be immune from discovery or use in any civil action merely because they were presented during proceedings of a review organization, nor shall any person who testified before a review organization or who is a member of a review organization be prevented from testifying as to matters within the person's knowledge, but a witness cannot be asked about opinions formed by the witness as a result of the review organization's hearings.

B. Information, documents or records that were not generated exclusively for, but were presented during, proceedings of a review organization shall be produced to the New Mexico medical board by the review organization or any other person possessing the information, documents or records in response to an investigative subpoena issued pursuant to Section 61-6-23 NMSA 1978 and shall be held in confidence by the New Mexico medical board pursuant to 61-6-34 NMSA 1978. Nothing in this section shall be construed to permit the New Mexico medical board to issue subpoenas requesting that any person appear to testify regarding what transpired at a meeting of a review organization or opinions formed as a result of review organization proceedings.

History: Laws 1979, ch. 169, § 5; 2011, ch. 121, § 1.

ANNOTATIONS

The 2011 amendment, effective June 17, 2011, required health care review organizations to respond to subpoenas issued by the medical board for non-testimonial information, documents and records presented at proceedings of the organization.

Implied private right of action. — In determining whether a statute implies a private right of action, three factors to consider are (1) whether the statute was enacted for the special benefit of a class of which the plaintiff is a member, (2) whether there is any indication of legislative intent, explicit or implicit, to create or deny a private remedy, and (3) whether a private remedy would frustrate or assist the underlying purpose of the legislative scheme. Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, aff'g 2013-NMCA-096, 314 P.3d 243.

Where plaintiff, an employee-physician of employer medical center (employer), participated in a peer review of another employee-physician of employer, employer utilized confidential peer review information to justify terminating plaintiff; this section of the Review Organization Immunity Act (ROIA) [41-9-1 through 41-9-7 NMSA 1978] provided plaintiff with a private right of action because (1) this section provides a blanket confidentiality provision for peer review proceedings, and therefore plaintiff, as a peer reviewer, is a member of the protected class, (2) the legislature intended to create an implied cause of action because violating the statute is a wrongful act, and where the violation results in damage to a member of the protected class, the right to recover damages is implied, and (3) an implied cause of action furthers the purpose of the statute because upholding the peer review integrity under ROIA is best accomplished with an implied civil cause of action for violations of peer review confidentiality. Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, aff'g 2013-NMCA-096, 314 P.3d 243.

Mandatory rule of law. — By its plain language, this section is a mandatory rule of law, stating that no person shall disclose what transpired at a meeting of a review organization except for the purposes listed in the statute; as a mandatory rule of law, the provision is incorporated into physician-reviewer employment contracts and parties are precluded from contractually avoiding application of the rule. Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, aff'g 2013-NMCA-096, 314 P.3d 243.

Where plaintiff, an employee-physician of employer medical center (employer), participated in a peer review of another employee-physician of employer, employer utilized confidential peer review information to justify terminating plaintiff; this section provided a basis to imply, as a matter of law, that there would not be any adverse consequences to plaintiff's employment resulting from his actions during the peer review process. Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, aff'g 2013-NMCA-096, 314 P.3d 243.

Private right of action. — A member of a peer review organization can bring a private cause of action for an alleged violation of the confidentiality provisions of 41-9-5 NMSA 1978. Yedidag v. Roswell Clinic Corp., 2013-NMCA-096, cert. granted, 2013-NMCERT-009.

Where plaintiff, who was employed as a surgeon by defendant, attended a peer review meeting together with other physicians and members of defendant's administration and management staff; during the meeting, plaintiff participated in the review of a colleague's surgical care and treatment of a patient; plaintiff questioned the colleague about the surgical treatment of the patient and the events that led to the patient's death; after the meeting ended, two members of defendant's staff who were present at the meeting reported to members of defendant's administration and management staff who where not present at the meeting that plaintiff had engaged in unprofessional and aggressive behavior at the meeting by verbally attacking the colleague whose case was under review and engaging in disruptive behavior; and two days after the meeting, defendant terminated plaintiff for unprofessional behavior and language and disruptive behavior, plaintiff had a private cause of action against defendant for the alleged violation of 41-9-5 NMSA 1978. Yedidag v. Roswell Clinic Corp., 2013-NMCA-096, cert. granted, 2013-NMCERT-009.

Trial court is required to make a finding on exclusivity. — Where the defendant showed that credentialing and quality management documents were acquired by a review organization in the exercise of its duties and functions, and the district court, following an in camera review of the documents, found that the documents were "innocuous and routine", the court's finding was insufficient to support the court's determination that the defendant had failed to satisfy its burden of proof that the documents were generated exclusively for peer review and for no other purpose. Chavez v. Lovelace Sandia Health Sys., 2008-NMCA-104, 144 N.M. 578, 189 P.3d 711.

Criticality not shown. — Where credentialing and quality management documents that were acquired by a review organization in the exercise of its duties and functions were not harmful to the defendant on the issue of liability and contained information that the plaintiff could obtain from discoverable hospital and personnel records, the plaintiff failed to satisfy his burden of showing that the documents were critical to his cause of action. Chavez v. Lovelace Sandia Health Sys., 2008-NMCA-104, 144 N.M. 578, 189 P.3d 711.

Immunity from discovery. — Where a party seeks to immunize from discovery data or information acquired by a review organization in the exercise of its duties and functions, and opinions formed as a result of the review organization's hearings, the burden rests upon that party to prove that the data or information was generated exclusively for peer review and for no other purpose, and that opinions were formed exclusively as a result of peer review deliberations. If the evidence was neither generated nor formed exclusively for or as a result of peer review, it shall not be immune from discovery unless it is shown to be otherwise available by the exercise of reasonable diligence. Southwest Cmty. Health Servs. v. Smith, 1988-NMSC-035, 107 N.M. 196, 755 P.2d 40.

Under the doctrine of "self-critical analysis" immunity, as contemplated by this section, records relating to a morbidity and mortality review are confidential and not subject to discovery in a medical malpractice action. Weekoty v. United States, 30 F. Supp. 2d 1343 (D.N.M. 1998).

Production of confidential information. — Where information is ruled confidential and the party seeking access satisfies the trial court that the information is critical to the cause of action or defense, the trial court shall compel production of such evidence. Southwest Cmty. Health Servs. v. Smith, 1988-NMSC-035, 107 N.M. 196, 755 P.2d 40.

This section does not create an evidentiary privilege in civil litigation, and thus does not come into direct conflict with Rule 11-501 NMRA. Southwest Cmty. Health Servs. v. Smith, 1988-NMSC-035, 107 N.M. 196, 755 P.2d 40.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of voluntary disclosure of privileged proceedings of hospital medical review or doctor evaluation processes, 60 A.L.R.4th 1273.

Scope and extent of protection from disclosure of medical peer review proceedings relating to claim in medical malpractice action, 69 A.L.R.5th 559.

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