BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1730 (Emmerson)
As Amended March 17, 2010
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
TW:jd
SUBJECT
Personal Rights: Monetary Liability: Peer Review Committee
DESCRIPTION
This bill, sponsored by the California Association of Marriage
and Family Therapists, clarifies that the peer review liability
exemption applies to review of psychotherapy services and
marriage and family therapists.
BACKGROUND
Enacted in 1961, Civil Code Section 43.7 provides a conditional
immunity to members of a duly appointed committee of a state or
local professional society or a hospital medical staff committee
performing peer review services. This immunity was thought
necessary to combat the conspiracy of silence among professional
colleagues and to encourage them to offer candid remarks about
the possible incompetency of a colleague without fear of being
sued for defamation.
Originally enacted to provide immunity protection to the members
of medical peer review committees delegated with the
responsibility of evaluating the competency of hospital staff
practitioners, the list of protected groups has grown to include
lawyers, accountants, engineers, psychologists, dieticians,
chiropractors, optometrists, veterinarians, dentists, dental
hygienists, podiatrists, pharmacists, and physical therapists.
Civil Code Section 43.7 references psychologists, but does not
specifically reference services for psychotherapy. This section
also references "marriage and family therapists" but does not
consistently list them throughout the statute.
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This bill would clarify that the peer review liability exemption
contained in Civil Code Section 43.7 includes psychotherapy
services and marriage and family therapists.
CHANGES TO EXISTING LAW
Existing law requires specified licensing entities to maintain a
central file on the disciplinary history of their respective
licensees. (Bus. & Prof. Code Sec. 800 et seq.)
Existing law defines "peer review body" to include, among other
things, a marriage and family therapy professional society that:
(1) has as members at least 25 percent of the eligible
licentiates in the area in which it functions; (2) is not
organized for profit; and (3) has been determined to be
tax-exempt pursuant to Section 23701 of the Revenue and Taxation
Code. (Bus. & Prof. Code Sec. 805(a)(1)(C).)
Existing law provides, generally, that there shall be no
monetary liability on the part of, and no cause of action for
damages against, any member of a mental health professional
quality assurance committee for actions taken pursuant to a
review or evaluation of mental health care or treatment. (Civ.
Code Sec. 43.7(a).)
Existing law provides, generally, that there shall be no
monetary liability on the part of, and no cause of action for
damages against, a professional or medical society, or member of
any committee thereof, for any action taken to maintain the
professional standards of the society. (Civ. Code Sec.
43.7(b).)
Existing law defines "professional society" to include legal,
medical, psychological, dental, dental hygiene, dietetic,
accounting, optometric, acupuncture, podiatric, pharmaceutic,
chiropractic, physical therapist, veterinary, licensed marriage
and family therapy, licensed clinical social work, and
engineering organizations having as members at least 25 percent
of the eligible persons or licentiates in the geographic area
served by the particular society. (Civ. Code Sec. 43.7(b).)
Existing law requires the Board of Behavioral Sciences to create
and maintain a central file of the names of all persons who hold
a license from the Board in order to provide a record for each
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licensee with respect to any: (1) criminal conviction that
constitutes unprofessional conduct; (2) judgment or settlement
for damages in excess of $3,000 for any claim that injury or
death was proximately caused by the licensee's negligence, error
or omission in practice, or by rendering unauthorized
professional services; (3) public complaints; or (4)
disciplinary information reported pursuant to Business and
Professions Code Section 805. (Bus. & Prof. Code Sec. 800.)
Existing law requires the administrator of a peer review body to
file an "805 report" with the relevant state licensing agency
within 15 days after the effective date of any of the following
that occur as a result of an action of the peer review body:
1) A licentiate's application for staff privileges or
membership is denied or rejected for a medical disciplinary
cause or reason.
2) A licentiate's membership, staff privileges, or
employment is terminated or revoked for a medical
disciplinary cause or reason.
3) Restrictions are imposed, or voluntarily accepted, on
staff privileges, membership, or employment for a
cumulative total of 30 days or more for any 12-month
period, for a medical disciplinary cause or reason. (Bus.
& Prof. Code Sec. 805(b).)
Existing law contains findings of the Legislature stating that:
1) Peer review, fairly conducted, is essential to
preserving the highest standards of medical practice.
2) Peer review, fairly conducted, will aid the appropriate
state licensing boards in their responsibility to regulate
and discipline errant healing arts practitioners.
3) To protect the health and welfare of the people of
California, it is the policy of the State of California to
exclude, through the peer review mechanism as provided for
by California law, those healing arts practitioners who
provide substandard care or who engage in professional
misconduct, regardless of the effect of that exclusion on
competition. (Bus. & Prof. Code Sec. 809(a).)
This bill would clarify that the peer review liability exemption
contained in Civil Code Section 43.7 includes psychotherapy
services.
This bill would clarify an ambiguity regarding the existing
reference to the liability exemption for licensed marriage and
family therapy contained in the definition of "professional
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society" by adding marriage and family therapists to the list of
peer review groups that comprise the professional society.
COMMENT
1. Stated need for the bill
The author writes:
AB 1730 adds marriage and family therapists to the list of
health-related professionals that receive qualified immunity
for their peer review activities as outlined in Civil Code
Section. 43.7.
While licensed marriage and family therapists are included in
the law's definition of "professional society," they are not
mentioned in other relevant parts of the statute. It should
also be noted that Business and Professions Code Section 805
includes a marriage and family therapist professional society
as a "peer review body" for the purpose of reporting
disciplinary actions to the Board of Behavioral Sciences. AB
1730 will correct this oversight in current law by
specifically including marriage and family therapists in Civil
Code Section 43.7 thereby ensuring that they are clearly
protected from liability for their peer review activities.
The sponsor of this bill states the need for this bill as
follows:
With regard to professional society peer review committees
that are addressed in 43.7(b) of the Civil Code, marriage and
family therapists are omitted from the listing of professions
afforded immunity from liability, even though this section of
law covers marriage and family therapy professional societies.
It is important for members of marriage and family therapist
ethics committees to be assured that the specified immunity
from liability is applicable to them and the actions they
take. This change in law will assure that there is no
ambiguity with respect to this protection for those who
volunteer to perform this important function that helps to
protect the public and assure that members adhere to
established codes of ethics.
Consumer Attorneys of California, which is neutral to this bill,
states that it is satisfied with this bill because it meets the
requirements of adding specific professionals to existing
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immunity statutes. These qualifications are as follows: 1) the
peer review committee is required to file an 805 report so that
the licensing entity has appropriate information to evaluate
licensees and to track patterns of misconduct; 2) the peer
review bodies are composed of volunteer, not paid, reviews; and
3) the licensing entity has a basic track record of public
protection, including making information about disciplinary
actions available to the public.
2. Clarifying existing law regarding marriage and family
therapists
Since 1986, Civil Code Section 43.7 has provided immunity from
liability to members of a marriage and family therapy
"professional society" (as defined) generally, but not
specifically to members of a peer review committee in the field
whose purpose is to review the quality of services rendered by
marriage and family therapists. (AB 2858 (Felando, Ch. 669,
Stats. 1986).) The reason for this apparent oversight is
unknown.
Subsequently, SB 2026 (Committee on Business and Professions,
Ch. 1013, Stats. 2002) substituted the term "marriage and family
therapy" for "marriage, family, and child counseling" without
broadening immunity from liability, giving the statute the
wording it retains to this day. Section 43.7 has not been
amended since.
This bill would clarify the ambiguity regarding the existing
liability exemption for licensed marriage and family therapy
contained in the definition of "professional society" by adding
marriage and family therapists to the list of peer review groups
that comprise the professional society.
3. Clarifying existing law regarding psychotherapy
When Civil Code Section 43.7 was amended to include marriage and
family counselors in 1986, psychologists had already been added
to this section. Given that Civil Code Section 43.7 had been
amended 27 times before 1986, committee staff was unable to
pinpoint exactly when psychologists were added. As occurred
with marriage and family counselors, psychotherapy services were
inadvertently omitted from various provisions of this section.
Under existing law, psychologists are listed as providers of
services who are immune from liability under Civil Code Section
43.7, but the specific service provided by psychologists is
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missing from the list of services that can be reviewed by
psychologist peer review groups. This bill would clarify an
existing immunity rather than adding a new profession to this
immunity.
Support : California Hospital Association; Civil Justice
Association of California
Opposition : None Known
HISTORY
Source : California Association of Marriage and Family
Therapists
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
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