2019 New Mexico Statutes
Chapter 41 - Torts
Article 9 - Review Organization Immunity
Section 41-9-4 - Limitation on liability for members of review organizations.
No person who is a member or employee of, who acts in an advisory capacity to or who furnishes counsel or services to a review organization shall be liable for damages or other relief in any action brought by a person or persons whose activities have been or are being scrutinized or reviewed by a review organization by reason of the performance by the person of any duty, function or activity of such review organization, unless the performance of such duty, function or activity was done with malice toward the person affected thereby. No person shall be liable for damages or other relief in any action by reason of the performance of the person of any duty, function or activity as a member of a review organization or by reason of any recommendation or action of the review organization when the person acts in the reasonable belief that the person's action or recommendation is warranted by facts known to the person or the review organization after reasonable efforts to ascertain the facts upon which the review organization's action or recommendation is made.
History: Laws 1979, ch. 169, § 4.
ANNOTATIONSAct's qualified immunity replaces common law absolute immunity. — This act abolishes any common-law absolute immunity available to review organization participants prior to its enactment, establishing instead a qualified immunity. Leyba v. Renger, 1992-NMSC-061, 114 N.M. 686, 845 P.2d 780.
Applicability of section. — Under this section, liability for statements is limited to those motivated by malice and is also limited to a person who is either a member of or an employee of the review organization, or a person who acts in an advisory capacity to or furnishes counsel or services to the review organization. Leyba v. Renger, 874 F. Supp. 1218 (D.N.M. 1994).
Immunity under the federal Health Care Quality Improvement Act. — The Health Care Quality Improvement Act, 42 U.S.C. §§ 11101 -11152 (1986) creates a rebuttable presumption of immunity from damages for participants of professional peer review actions if the review process is reasonable. To rebut the presumption, plaintiff must show that the fact-finding process was not reasonable in its totality. The act does not require that participants at every level of a peer review action perform an independent investigation of the facts. Participants in later stages of the review process are entitled to rely on information gathered in earlier stages. The presumption of reasonableness is not overcome simply by identifying one piece of factually questionable evidence upon which a peer review committee relied or by questioning the integrity or motivations of individuals conducting the peer review. The failure of professional peer review to comply with defendant's applicable peer review process does not render the fact-finding process unreasonable. Summers v. Ardent Health Servs., LLC, 2011-NMSC-017, 150 N.M. 123, 257 P.3d 943, rev'g 2010-NMCA-026, 147 N.M. 506, 226 P.3d 20.
Investigation by plaintiff's medical peers was reasonable as a matter of law. — Where defendant suspended plaintiff's medical privileges based on plaintiff's use of inappropriate sexually explicit language with patients; defendant claimed immunity from suit under 42 U.S.C. §11112 of the Health Care Quality Act of 1986; the suspension was based primarily on a consideration by an ad hoc review committee of notes taken by a case manager during a telephone interview of the complaining patient after the patient had been discharged from the hospital; neither the case manager nor the complaining patient were ever contacted or questioned by defendant regarding the incident; and plaintiff's privileges were suspended after two investigations by separate ad hoc committees that included a review of the records of plaintiff's patients, reviews of the ad hoc committee reports by defendant's medical executive committee, an appeal to a professional review committee at which plaintiff presented evidence and cross-examined witnesses, a final review by defendant's appellate review committee, and a review by defendant's board of trustees of the entire record, the fact-finding process conducted by defendant was reasonable as a matter of law. Summers v. Ardent Health Servs., LLC, 2011-NMSC-017, 150 N.M. 243, 257 P.3d 943, rev'g 2010-NMCA-026, 147 N.M. 506, 226 P.3d 20.
