Colorado § 12-30-208 - Conformance with federal law and regulation - legislative declaration - rules - limitations on liability - definition.

§ 12-30-208. Conformance with federal law and regulation - legislative declaration - rules - limitations on liability - definition.

(1) The general assembly hereby finds, determines, and declares that the enactment of this section is necessary in order for the state to comply with the provisions of the federal "Health Care Quality Improvement Act of 1986", as amended, 42 U.S.C. secs. 11101 to 11152. It is the intent of the general assembly that the provisions of this section are to be interpreted as being complementary to the other provisions in this part 2. The provisions of this section are intended to be responsive to specific requirements of the federal "Health Care Quality Improvement Act of 1986", as amended. If the provisions of this section conflict with the other provisions of this part 2, other than with respect to the specific requirements of the federal "Health Care Quality Improvement Act of 1986", as amended, the other provisions of this part 2 prevail.

(2) The medical board and nursing board may promulgate rules to comply with the reporting requirements of the federal "Health Care Quality Improvement Act of 1986", as amended, and may participate in the federal data bank.

(3) (a) The following persons are immune from suit and not liable for damages in any civil action with respect to their participation in, assistance to, or reporting of information to a professional review committee in connection with a professional review action in this state, and such persons are not liable for damages in a civil action with respect to their participation in, assistance to, or reporting of information to a professional review committee that meets the standards of and is in conformity with the federal "Health Care Quality Improvement Act of 1986", as amended:

(I) An authorized entity, professional review committee, or governing board;

(II) Any person acting as a member of or staff to the authorized entity, professional review committee, or governing board;

(III) A witness, consultant, or other person who provided information to the authorized entity, professional review committee, or governing board; and

(IV) Any person who participates with or assists the professional review committee or governing board with respect to the professional review activities.

(b) (I) Notwithstanding subsection (3)(a) of this section, nothing in this section relieves an authorized entity that is a health-care facility licensed or certified pursuant to part 1 of article 3 of title 25 or certified pursuant to section 25-1.5-103 (1)(a)(II) of liability to an injured person or wrongful death claimant for the facility's independent negligence in the credentialing or privileging process for a person licensed under article 240 of this title 12, an advanced practice registered nurse, or a certified midwife who provided health-care services for the injured or deceased person at the facility. For purposes of this subsection (3), the facility's participation in the credentialing process or the privileging process does not constitute the corporate practice of medicine.

(II) Nothing in this subsection (3) affects the confidentiality or privilege of any records subject to section 12-30-204 (11) or of information obtained and maintained in accordance with a quality management program as described in section 25-3-109. The exceptions to confidentiality or privilege as set forth in sections 12-30-204 (11) and 25-3-109 (4) apply.

(III) This subsection (3)(b) applies to actions filed on or after July 1, 2012.

(c) As used in this subsection (3), unless the context otherwise requires, "professional review action" means an action or recommendation of a professional review committee that is taken or made in the conduct of professional review activity and that is based on the quality and appropriateness of patient care provided by, or the competence or professional conduct of, an individual person licensed under article 240 of this title 12, an advanced practice registered nurse, or a certified midwife, which action affects or may affect adversely the person's clinical privileges of or membership in an authorized entity. "Professional review action" includes a formal decision by the professional review committee not to take an action or make a recommendation as provided in this subsection (3)(c) and also includes professional review activities relating to a professional review action. An action is not based upon the competence or professional conduct of a person if the action is primarily based on:

(I) The person's association or lack of association with a professional society or association;

(II) The person's fees or advertising or engaging in other competitive acts intended to solicit or retain business;

(III) The person's association with, supervision of, delegation of authority to, support for, training of, or participation in a private group practice with a member or members of a particular class of health-care practitioners or professionals;

(IV) The person's participation in prepaid group health plans, salaried employment, or any other manner of delivering health services whether on a fee-for-service basis or other basis;

(V) Any other matter that does not relate to the quality and appropriateness of patient care provided by, or the competence or professional conduct of, a person licensed under article 240 of this title 12, an advanced practice registered nurse, or a certified midwife.

Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 790, § 1, effective October 1. L. 2023: (3)(b)(I), IP(3)(c), and (3)(c)(V) amended, (SB 23-167), ch. 261, p. 1540, § 39, effective May 25.

Editor's note: Subsection (1) is similar to former § 12-36.5-201; subsection (2) is similar to former § 12-36.5-202; and subsection (3) is similar to former § 12-36.5-203, as those sections existed prior to 2019.

ANNOTATION

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

The statutory language clearly and unambiguously provides immunity from damages for professional review bodies "in any civil action" wherein a professional peer review has been conducted concerning the credentialing decision for a particular physician. "Any" means "all". Kauntz v. HCA-HEALTHONE, LLC, 174 P.3d 813 (Colo. App. 2007).

The statute is not ambiguous because it is not silent on its applicable scope: It states that damage immunity applies "in any civil action". Kauntz v. HCA-HEALTHONE, LLC, 174 P.3d 813 (Colo. App. 2007).

The general assembly either has expressly stated its intent to abrogate common law negligent credentialing claims brought by patients against hospitals or, at a minimum, has done so by clear implication. While the statute does not state that it governs hospital-patient relations, the use of the words "any civil action" in describing the applicability of damages immunity makes it difficult, if not impossible, to discern a lack of clarity or of expression. Kauntz v. HCA-HEALTHONE, LLC, 174 P.3d 813 (Colo. App. 2007).

The language of subsection (2) clearly shows the general assembly's intent for the section to apply retroactively. The retroactive application is not unconstitutionally retrospective because it does not impair a vested right; or create a new obligation, impose a new duty, or attach a new disability. Hickman v. Catholic Health Initiatives, 2013 COA 129, 328 P.3d 266.

Applied in Pfenninger v. Exempla, Inc., 116 F. Supp. 2d 1184 (D. Colo. 2000); N. Colo. Med. Ctr., Inc. v. Nicholas, 27 P.3d 828 (Colo. 2001).