Pennsylvania Supreme Court Rules Peer Preview Privilege Did Not Apply In Medical Malpractice Case

In its majority, 4-to-3 opinion filed on March 27, 2018, the Supreme Court of Pennsylvania Western District (“Pennsylvania Supreme Court”) ruled that the Pennsylvania Peer Review Protection Act, 63 P.S. §§ 425.1-425.4 (“PRPA”), which provides a narrow evidentiary privilege to protect the “proceedings and documents of a review committee” conducting peer review activities by professional health care providers in conformity with its provisions, did not apply to the facts of the Pennsylvania medical malpractice case it was reviewing.

The Pennsylvania Supreme Court stated: “In this medical malpractice action, Monongahela Valley Hospital (“MVH”) contracted with UPMC Emergency Medicine, Inc. (“ERMI”) to provide staffing and administrative services for its emergency room. Both MVH and ERMI claim that the PRPA’s statutory evidentiary privilege protects from disclosure the performance file of Marcellus Boggs, M.D. (“Dr. Boggs”) that had been prepared and maintained by Brenda Walther, M.D. (“Dr. Walther”), who served as the director of MVH’s emergency department and was Dr. Boggs’ supervisor. Dr. Boggs and Dr. Walther were employees of ERMI. Under the facts presented in this case and the applicable statutory language of the PRPA, neither ERMI nor MVH may claim the evidentiary privilege. ERMI is not a “professional health care provider” under the PRPA, and the performance file at issue here was not generated or maintained by MVH’s peer review committee. We therefore affirm the decision of the Superior Court upholding the trial court’s ruling that PRPA’s evidentiary privilege has no application in this case.”

The Underlying Facts

In January 2011, the Pennsylvania medical malpractice plaintiff was transported by ambulance to MVH’s emergency department with what she reported at the time to be gastric discomfort. She was treated by Dr. Boggs. The plaintiff alleged in her Pennsylvania medical malpractice lawsuit that Dr. Boggs failed to diagnose an emergent, underlying heart problem and discharged her without proper treatment. Several days later, the plaintiff suffered a heart attack.

At her deposition, Dr. Walther testified that she prepared and maintained a “performance file” on Dr. Boggs as part of her regular practice of reviewing randomly selected charts associated with patients treated by Dr. Boggs (and other ERMI-employed emergency department physicians). In response, the plaintiff filed discovery requests directed to MVH requesting, among other things, “the complete ‘performance file’ for [Dr. Boggs] maintained by [Dr. Walther.]” MVH objected to production of the performance file, asserting that it was privileged by, inter alia, the PRPA.

The plaintiff filed a motion to compel discovery directed to MVH, seeking production of Dr. Boggs’ performance file. The trial court granted the motion to compel, ordering that MVH provide Dr. Boggs’ performance file to the plaintiff.

ERMI and Dr. Boggs, who had not previously participated in the discovery proceedings, filed a motion for a protective order, asserting its entitlement to claim the evidentiary privilege under the PRPA for the peer review work performed by its employee, Dr. Walther. MVH argued that Dr. Walther’s peer review work of the performance of emergency department physicians was performed “on behalf of both ERMI and MVH.”

Before the trial court could rule on either ERMI’s motion for protective order and MVH’s motion for reconsideration, both entities appealed the trial court’s order to produce the performance file. The Superior Court subsequently affirmed the trial court’s order requiring production of Dr. Boggs’ performance file. ERMI and MVH appealed the Superior Court’s rulings to the Pennsylvania Supreme Court, each claiming an entitlement to the PRPA’s evidentiary privilege with respect to Dr. Boggs’ performance file.

Pennsylvania Supreme Court Opinion

The Pennsylvania Supreme Court stated, “Pennsylvania courts have recognized the laudable goal of the PRPA, which was enacted ‘to serve the legitimate purpose of maintaining high professional standards in the medical practice for the protection of patients and the general public’ based upon the General Assembly’s determination that ‘because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities … in enacting the PRPA, the General Assembly’s intent was to ‘encourage peer evaluation of health care provided so as to (1) improve the quality of care rendered; (2) reduce morbidity and mortality; and (3) keep within reasonable bounds the costs of health care.'”

The Pennsylvania Supreme Court further stated, “In interpreting its provisions, however, we may not ignore the unambiguous statutory language of the PRPA ‘under the pretext of pursuing its spirit’ … Such is particularly true in the present context, since ‘evidentiary privileges are not favored, as they operate in derogation of the search for truth.'”

“Peer Review”

“Peer review” means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations. Peer review, as it applies to veterinarians, shall mean the procedure for evaluation by licensed doctors of veterinary medicine of the quality and efficiency of veterinary medicine ordered or performed by other doctors of veterinary medicine with the standards set by an association of doctors of veterinary medicine and with applicable laws, rules and regulations. 63 P.S. § 425.2.

“Review Organization”

“Review organization” means any committee engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a health insurance review committee, a hospital plan corporation review committee, a professional health service plan review committee, a dental review committee, a physicians’ advisory committee, a veterinary review committee, a nursing advisory committee, any committee established pursuant to the medical assistance program, and any committee established by one or more State or local professional societies, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto. It shall also mean a committee of an association of professional health care providers reviewing the operation of hospitals, nursing homes, convalescent homes or other health care facilities. 63 P.S. § 425.2.

The PRPA’s Evidentiary Privilege

The PRPA’s evidentiary privilege is set forth in section 425.4: “The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or used in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.” 63 P.S. § 425.4.

The Pennsylvania Supreme Court held that ERMI is not a “professional health care provider” under the PRPA’s definition of that term: the express language of the PRPA’s definition provides that the individual or organization be “approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth,” which requirement ERMI fails to meet. ERMI does not qualify as a professional health care provider under the PRPA because it is not approved, licensed or otherwise regulated to practice or operate in the healthcare field in Pennsylvania, and it did not become one because one of its employees (Dr. Walther) conducted an evaluation of another of its employees.

With regard to MVH’s contention that it, unlike ERMI, is a professional health care provider and is thus entitled to claim the PRPA’s evidentiary privilege, the Pennsylvania Supreme Court stated that the PRPA’s evidentiary privilege is reserved only for the “proceedings and documents of a review committee[.]” MVH does not contend that Dr. Walther was a member of the hospital’s peer review committee. Instead, MVH argues that Dr. Walther acted, ostensibly, as a separate peer review committee for the ERMI-supplied emergency department physicians. Although Dr. Walther is an individual rather than a committee, MVH contends that this is a distinction without a difference, as the second sentence of the definition of “review organization” refers to any “hospital board, committee or individual reviewing the qualifications or activities of its medical staff or applicants for admission thereto.” MVH argues that a “review organization” is any “entity or individual engaged in peer review,” as the PRPA uses the terms “committee” and “individual” interchangeably.

The Pennsylvania Supreme Court held that the PRPA does not use the terms “committee” and “individual” interchangeably (if the two terms were interchangeable, the reference to both (“committee or individual”) in the second sentence of the definition of “review organization” would constitute unnecessary surplusage, which is not permissible under basic statutory construction principles). Moreover, the terms “review committee” and “review organization” are not interchangeable, as they connote distinct types of entities under the PRPA.

The Pennsylvania Supreme Court held that individuals conducting peer review are not defined as a “review committee” under the PRPA, even if they qualify as another type of “review organization.” As a result, Dr. Walther, as an individual, was not a “review committee” engaging in peer review, and thus MVH is not entitled to claim the PRPA’s evidentiary privilege based upon her work as a member of its medical staff.

With regard to the argument of ERMI and MVH that the lower courts erred in refusing to apply PRPA’s evidentiary privilege because a hospital’s peer review committee may conduct protected peer review activities through an outside entity pursuant to a contract, the Pennsylvania Supreme Court held that MVH and ERMI failed to preserve this issue for appeal to the Pennsylvania Supreme Court (neither MVH nor ERMI included the contract between them in the record in the trial court proceedings). Nonetheless, the Pennsylvania Supreme Court stated, “Even if the issue had been preserved for appeal, we must conclude that it lacks merit” (the certified record contains no conclusive documentary evidence to establish, one way or the other, whether MVH contracted with ERMI to conduct peer review on its behalf including, in particular, the creation of the performance file that Dr. Walther maintained for Dr. Boggs).

Source Reginelli v. Boggs, Nos. 22-23 WAP 2016.

If you may have been injured as a result of medical malpractice in Pennsylvania or in another U.S. state, you should promptly consult with a medical malpractice lawyer in Pennsylvania or in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.

Turn to us when you don’t know where to turn.

This entry was posted on Wednesday, April 11th, 2018 at 5:23 am. Both comments and pings are currently closed.

placeholder

Easy Free Consultation

Fill out the form below for a free consultation or contact us directly at 800.295.3959

Easy Free Consultation

Fill out the form below for a free consultation or contact us directly at 800.295.3959