Colorado § 25-3-109 - Quality management functions - confidentiality and immunity.

§ 25-3-109. Quality management functions - confidentiality and immunity.

(1) The general assembly hereby finds and declares that the implementation of quality management functions to evaluate and improve patient and resident care is essential to the operation of health-care facilities licensed or certified by the department of public health and environment pursuant to section 25-1.5-103 (1)(a). For this purpose, it is necessary that the collection of information and data by such licensed or certified health-care facilities be reasonably unfettered so a complete and thorough evaluation and improvement of the quality of patient and resident care can be accomplished. To this end, quality management information relating to the evaluation or improvement of the quality of health-care services shall be confidential, subject to the provisions of subsection (4) of this section, and persons performing such functions shall be granted qualified immunity. It is the intent of the general assembly that nothing in this section revise, amend, or alter part 2 of article 30 or article 240 of title 12.

(2) For purposes of this section, a "quality management program" means a program that includes quality assurance and risk management activities, the peer review of licensed health-care professionals not otherwise provided for in part 2 of article 30 of title 12, and other quality management functions that are described by a facility in a quality management program approved by the department of public health and environment. Nothing in this section shall revise, amend, or alter part 2 of article 30 or article 240 of title 12.

(3) Except as otherwise provided in this section, any records, reports, or other information of a licensed or certified health-care facility that are part of a quality management program designed to identify, evaluate, and reduce the risk of patient or resident injury associated with care or to improve the quality of patient care shall be confidential information; except that such information shall be subject to the provisions of subsection (4) of this section.

(4) The records, reports, and other information described in subsection (3) and subsection (5.5) of this section shall not be subject to subpoena or discoverable or admissible as evidence in any civil or administrative proceeding. No person who participates in the reporting, collection, evaluation, or use of such quality management information with regard to a specific circumstance shall testify thereon in any civil or administrative proceeding. However, this subsection (4) shall not apply to:

(a) Any civil or administrative proceeding, inspection, or investigation as otherwise provided by law by the department of public health and environment or other appropriate regulatory agency having jurisdiction for disciplinary or licensing sanctions;

(b) Persons giving testimony concerning facts of which they have personal knowledge acquired independently of the quality management information program or function;

(c) The availability, as provided by law or the rules of civil procedure, of factual information relating solely to the individual in interest in a civil suit by such person, next friend or legal representative. In no event shall such factual information include opinions or evaluations performed as a part of the quality management program.

(d) Persons giving testimony concerning an act or omission which they have observed or in which they participated, notwithstanding any participation by them in the quality management program;

(e) Persons giving testimony concerning facts they have recorded in a medical record relating solely to the individual in interest in a civil suit by such person.

(5) Nothing in this section shall affect the voluntary release of any quality management record or information by a health-care facility; except that no patient-identifying information shall be released without the patient's consent.

(5.5) (a) The confidentiality of information provided for in this section shall in no way be impaired or otherwise adversely affected solely by reason of the submission of the information to a nongovernmental entity to conduct studies that evaluate, develop, and analyze information about health-care operations, practices, or any other function of health-care facilities. The records, reports, and other information collected or developed by a nongovernmental entity shall remain protected as provided in subsections (3) and (4) of this section. In order to adequately protect the confidentiality of such information, no findings, conclusions, or recommendations contained in such studies conducted by any such nongovernmental entity shall be deemed to establish a standard of care for health-care facilities.

(b) For purposes of this subsection (5.5), "health-care facility" includes a carrier as defined in section 10-16-102 (8), C.R.S., and a health-care practitioner licensed or certified pursuant to title 12, C.R.S.

(6) Any person who in good faith and within the scope of the functions of a quality management program participates in the reporting, collection, evaluation, or use of quality management information or performs other functions as part of a quality management program with regard to a specific circumstance shall be immune from suit in any civil action based on such functions brought by a health-care provider or person to whom the quality information pertains. In no event shall this immunity apply to any negligent or intentional act or omission in the provision of care.

(7) and (8) (Deleted by amendment, L. 97, p. 507, § 2, effective April 24, 1997.)

(9) Nothing in this section shall be construed to limit any statutory or common law privilege, confidentiality, or immunity.

(10) Nothing in this section shall revise, amend, or alter the requirements of section 25-3-107.

(11) (Deleted by amendment, L. 97, p. 507, § 2, effective April 24, 1997.)

(12) Nothing in this section shall affect a person's access to his medical record as provided in section 25-1-801, nor shall it affect the right of any family member or any other person to obtain medical record information upon the consent of the patient or his authorized representative.

Source: L. 88: Entire section added, p. 1006, § 1, effective April 29. L. 89: (1) and (2) amended, p. 689, § 5, effective July 1. L. 94: (1), (2), (3), (4)(a), IP(7), and (8) amended, p. 2754, § 410, effective July 1. L. 97: (1), (3), (7), (8), and (11) amended, p. 507, § 2, effective April 24. L. 2003: IP(4) amended and (5.5) added, p. 942, § 1, effective April 17; (1) amended, p. 710, § 41, effective July 1. L. 2013: (5.5)(b) amended, (HB 13-1266), ch. 217, p. 992, § 62, effective May 13. L. 2019: (1) and (2) amended, (HB 19-1172), ch. 136, p. 1700, § 152, effective October 1.

Cross references: For the legislative declaration contained in the 1994 act amending subsections (1), (2), (3), and (4)(a), the introductory portion to subsection (7), and subsection (8), see section 1 of chapter 345, Session Laws of Colorado 1994.

ANNOTATION

The federal Protection and Advocacy for Mentally Ill Individuals Act (PAMII) requires disclosure of peer review and quality assurance records. To the extent Colorado's laws conflict with PAMII and the access to peer review and medical assurance records that PAMII provides, they are preempted. Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003).

Documents that exist regardless of any quality management functions undertaken pursuant to a state approved quality management program are discoverable, but only from their original source; and conversations between or among health care providers about medical care before a qualifying quality management function is initiated or outside the operation of a qualifying quality management function are not privileged. Zander v. Craig Hosp., 743 F. Supp. 2d 1225 (D. Colo. 2010).

Doctor's investigation, undertaken on his own, was outside the scope of hospital's quality management program and is not privileged. Doctor's belief and expectation that hospital would initiate a quality management review does not alter the independent nature of doctor's investigation or make it privileged. Zander v. Craig Hosp., 743 F. Supp. 2d 1225 (D. Colo. 2010).

A hospital that is properly licensed does not need to prove that its quality management program was in compliance with all applicable regulations for the privilege to apply. Because a quality management program is required to maintain a hospital's license, a hospital that is licensed by the department of public health and environment necessarily has a quality management program that has been approved by the department; therefore, the minutes from the hospital's quality management program committee are covered by the quality management privilege, and the trial court erred in ordering that they be produced. Simpson v. Cedar Springs Hosp., Inc., 2014 CO 73, 336 P.3d 180.

A wrongful discharge claim could not be predicated on this section where, with regard to the employee's conduct at issue, this section neither established a public duty nor created an important job-related right or privilege. Jaynes v. Centura Health Corp., 148 P.3d 241 (Colo. App. 2006).