Arizona Peer Review Statute

The information on this page was last updated by Horty, Springer & Mattern on April 25, 2019.

ARIZONA

PEER REVIEW

Ariz. Rev. Stat. Ann.  §36-441. Health care utilization committees; immunity; exception; definition

A. A person who without malice makes a decision or recommendation as a member, agent or employee of a health care utilization committee or who furnishes any records, information or assistance to that committee at  its request is not subject to liability for civil damages or any legal action in consequence of that action. In any such action, the absence of malice shall be presumed. This presumption may be overcome only by a showing of clear and convincing evidence. This section does not relieve a person of liability arising from treatment of a patient. For the purposes of this section, “malice” means evil intent and outrageous, oppressive or intolerable conduct that creates a substantial risk of tremendous harm to others.

B. All proceedings, records and materials prepared in connection with the activities of a health care utilization committee are confidential and are not subject to discovery except:

1. In proceedings before the Arizona medical board or the board of osteopathic examiners.

2. In actions by an individual health care provider against the healthcare institution or outpatient surgical center arising from the discipline or other adverse action taken against the individual as a result of utilization review.

C. No member of a utilization review committee, a person engaged in assisting the committee or a person furnishing information to the committee may be subpoenaed to testify in a judicial or quasi-judicial proceeding if the subpoena is based solely on the utilization review committee’s activities.

D. This section does not:

1. Affect a patient’s claim to privilege or privacy.

2. Prevent the subpoena of a patient’s medical records if they are otherwise subject to discovery.

3. Restrict the powers and duties of the director pursuant to this chapter with respect to records and information that are not subject to this section.

E. In a legal action brought against a hospital or outpatient surgical center for failure to adequately perform utilization review, representatives of the facility may testify as to whether there was utilization review with respect to the subject matter of the litigation.

F. All proceedings, records and materials prepared in connection with utilization review are confidential and inadmissible as evidence in a court proceeding.

G. For the purposes of this section, “health care utilization committee” means a committee established by a hospital or an outpatient surgical center to review or evaluate the utilization, appropriateness and necessity of health care services provided by that facility.

§36-445. Review of certain medical practices

The governing body of each licensed hospital or outpatient surgical center shall require that physicians admitted to practice in the hospital or center organize into committees or other organizational structures to review the professional practices within the hospital or center for the purposes of reducing morbidity and mortality and for the improvement of the care of patients provided in the institution. Such review shall include the nature, quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital or center. Such review need not identify the patient or doctor by name but may use a case number or some other such designation.

§36-445.01. Confidentiality of information; conditions of disclosure

A. All proceedings, records and materials prepared in connection with the reviews provided for in section 36-445, including all peer reviews of individual health care providers practicing in and applying to practice in hospitals or outpatient surgical centers and the records of such reviews, are confidential and are not subject to discovery except in proceedings before the Arizona medical board, or the board of osteopathic examiners, or in actions by an individual health care provider against a hospital or center or its medical staff arising from discipline of such individual health care provider or refusal, termination, suspension or limitation of the health care provider’s privileges. No member of a committee established under the provisions of section 36-445 or officer or other member of a hospital’s or center’s medical, administrative or nursing staff engaged in assisting the hospital or center to carry out functions in accordance with that section or any person furnishing information to a committee performing peer review may be subpoenaed to testify in any judicial or quasi-judicial proceeding if the subpoena is based solely on those activities.

B. This article does not affect any patient’s claim to privilege or privacy or to prevent the subpoena of a patient’s medical records if they are otherwise subject to discovery or to restrict the powers and duties of the director pursuant to this chapter, with respect to records and information that are not subject to this article. In any legal action brought against a hospital or outpatient surgical center licensed pursuant to this chapter claiming negligence for failure to adequately do peer review, representatives of the hospital or center are permitted to testify as to whether there was peer review as to the subject matter being litigated. The contents and records of the peer review proceedings are fully confidential and inadmissible as evidence in any court of law.

§36-445.02. Immunity relating to review of medical practices

A. Any individual who, in connection with duties or functions of a hospital or outpatient surgical center pursuant to section 36-445, makes a decision or recommendation as a member, agent or employee of the medical or administrative staff of a hospital or center or of one of its review committees or related organizations or who furnishes any records, information, or assistance to such medical staff or review committee or related organization is not subject to liability for civil damages or legal action in consequence thereof.

B. No hospital or outpatient surgical center and no individual involved in carrying out review or disciplinary duties or functions of a hospital or center pursuant to section 36-445 may be liable in damages to any person who is denied the privilege to practice in a hospital or center or whose privileges are suspended, limited or revoked. The only legal action which may be maintained by a licensed health care provider based on the performance or nonperformance of such duties and functions is an action for injunctive relief seeking to correct an erroneous decision or procedure. The review shall be limited to a review of the record. If the record shows that the denial, revocation, limitation or suspension of membership or privileges is supported by substantial evidence, no injunction shall issue. In such actions, the prevailing party shall be awarded taxable costs, but no other monetary relief shall be awarded.

C. Nothing in this section relieves any individual, hospital or outpatient surgical center from liability arising from treatment of a patient.

§36-2401. Definitions

In this article [Health Care Entity Quality Assurance Activities], unless the context otherwise requires:

1. “Health care entity” means any of the following:

(a) A licensed health care provider.

(b) An entity that provides health care services through one or more licensed health care providers.

(c) An entity that contracts to provide or pays for health care services.

(d) A professional organization of licensed health care providers.

(e) A utilization or quality control peer review organization.

(f) A state health care provider.

(g) A component of the statewide emergency medical services and trauma system.

(h) A qualifying community health center as defined in § 36-2907.06.

(i) A committee or other organizational structure of a health care entity.

2. “Licensed health care provider” means a person or institution that is licensed or certified by this state to provide health care, medical services, nursing services or other health-related services.

3. “Quality assurance activities” means activities or proceedings of a health care entity:

(a) That are established for the purposes of reducing morbidity and mortality and for improving the quality of health care or encouraging proper utilization of health care services and facilities through the review of the qualifications, professional practices, training, experience, patient care, conduct, processes or data of licensed health care providers.

(b) That follow a process adopted by the health care entity that includes written standards and criteria.

4. “Quality assurance information” means information in oral, written or digital form that is submitted to, prepared for or by or considered by a health care entity for or in the course of quality assurance activities, including the record of the health care entity’s actions and proceedings.

5. “State health care provider” means a department, agency, board or commission of the state and its officers, agents and employees that is a health care provider to clients, wards, patients or other persons in the control or custody of a department, agency, board or commission of the state and a health care provider rendering health care services on behalf of the state that is covered by insurance or self-insurance pursuant to § 41-621, 41-622 or 41-623.

§36-2402. Quality assurance activities; sharing of quality assurance information; immunity

A. State health care providers, hospitals and outpatient surgical centers shall, and other health care entities may, conduct quality assurance activities.

B. A health care entity may share quality assurance information with appropriate state licensing or certifying agencies and with licensed health care providers who are the subject of quality assurance activities. A hospital may share quality assurance information with other health care entities only with the approval of the hospital’s medical executive committee or an equivalent committee.

C. A health care entity may share quality assurance information with other health care entities only for the purpose of conducting quality assurance activities.

D. A health care entity or person that provides or receives information, that participates, takes any action or makes any decision or recommendation in the course of quality assurance activities or that furnishes any records, information or assistance to a health care entity for or in the course of quality assurance activities is not subject to liability for civil damages or any legal action in consequence of such action except as provided in § 36-445.02.

E. Quality assurance activities conducted by state, county or local medical, pharmacy and dental associations and societies on behalf of a health care entity are immune from civil liability to the same degree as the facility for which the review activities are conducted.

G. This section does not relieve any health care entity from liability arising from the treatment of a patient or from negligent credentialing decisions.

§36-2403. Confidentiality; protection from discovery proceedings and subpoena; exceptions

A. Quality assurance information shall be confidential and is not subject to subpoena or order to produce except in proceedings before the appropriate state licensing or certifying agency, or in actions by a licensed health care provider against a health care entity arising from the discipline of the licensed health care provider or the refusal, termination, suspension or limitation of privileges. A health care entity or a person who provides or receives information or who participates in, takes any action in or makes any decision or recommendation for or in the course of quality assurance activities may not be subpoenaed to testify in any judicial or quasi-judicial proceeding relating to the subject matter of the quality assurance activities.

B. This article shall not be construed to affect any patient’s claim to privilege or privacy or to prevent the subpoena of a patient’s health care records if they are otherwise subject to discovery. In any legal action brought pursuant to § 36-2402 in which it is alleged that quality assurance activities were inadequate or were negligently conducted, representatives of a health care entity are permitted to testify only as to whether there were quality assurance activities relating to the subject matter being litigated and the date or dates of the quality assurance activities.

C. Sharing of information about quality assurance activities in accordance with § 36-2402 does not waive or otherwise impair the confidentiality of the information shared. Governing bodies and administrative and other personnel of a health care entity may participate in quality assurance activities without waiving confidentiality. All individuals or entities sharing or receiving quality assurance information shall maintain the information confidentially in accordance with this section.

D. A state agency or the affected licensed health care provider receiving or reviewing quality assurance information pursuant to § 36-2402 shall maintain the information confidentially, and such entities and individuals are subject to the same provisions concerning discovery and use in legal actions as are health care entities.

E. Except as otherwise provided in this subsection, information that is otherwise discoverable does not become confidential based solely on its submission to or consideration by a health care entity conducting confidential quality assurance activities. A health care entity conducting quality assurance activities may not produce such information if discovery of such information might reveal the deliberative process engaged in during such quality assurance activities.

F. This section does not apply to information considered confidential under § 36-2917.

§36-2404. Repealed by Laws 2015, Ch. 319, § 6.

[Laws 2015, Ch. 319, § 6 — The intent of this act is to allow more health care entities to conduct quality assurance activities and to specifically allow the sharing of quality assurance information between entities without a waiver of privilege. It is not the intent of this act to broaden the definitions of quality assurance activities or quality assurance information.]

 

Please note:  the following statute pertains to the Arizona Health Care Cost Containment System:

§36-2917.  Review committees; immunity; confidentiality; definition

A. Any person who, in good faith and without malice and in connection with duties or functions of a review committee of the system, takes an action or makes a decision or recommendation as a member, agent or employee of a review committee of the system or related to the duties or functions of a review committee of the system or who furnishes records, information or assistance that is related to the duties of a review committee is not subject to liability for civil damages in consequence of that action. The court shall determine the presence of malice by clear and convincing evidence. This section does not relieve a person of liability that arises from that person’s medical treatment of a patient.

B. The information considered by a review committee of the system or related to the duties or functions of a review committee of the system and the records of their actions and proceedings are confidential and are not subject to subpoena or order to produce except as provided in subsection C of this section and in proceedings before an appropriate state licensing or certifying agency. A member of a review committee of the system or its staff engaged in assisting such committee or any other person assisting or furnishing information to such committee shall not be subpoenaed to testify in any judicial or quasi-judicial proceeding if the subpoena is based solely on those activities.

C. This section does not affect a patient’s claim to privilege or prevent the subpoena of a patient’s medical records that are otherwise subject to discovery. The contents and records of review committee procedures are confidential and inadmissible in court.

D. Information considered by a review committee of the system and the records of its actions and proceedings may be transmitted by the director to an appropriate state licensing or certifying agency. Information considered by a review committee of the system or related to the duties or functions of a review committee of the system and the records of its actions and proceedings that are used pursuant to subsection B of this section or transmitted pursuant to this subsection by a state licensing or certifying agency shall be kept confidential and shall be subject to the same provisions concerning discovery and use in legal actions as are the original information and records in the possession and control of a review committee of the system or related to the duties and functions of a review committee of the system.

E. This section does not prevent the director from supervising or monitoring contractors as otherwise provided for in this chapter or rules adopted pursuant to this chapter.

F. For the purposes of this section, “review committee of the system” means any organizational structure of the administration, or of a contractor contracting with the administration pursuant to section 36-2906, the purpose of which is one or more of the following:

1. To evaluate and improve the quality of health care.

2. To review and investigate the conduct of licensed health care providers in order to determine whether disciplinary action should be imposed.

3. To encourage proper and efficient utilization of health care services and facilities.