36-441

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 is 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 subsection, "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 health care
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, person engaged in assisting the
committee or 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.