On March 27, 2018, the Supreme Court of Pennsylvania issued a long-awaited 4-3 decision in which the majority limited the scope of Pennsylvania's Peer Review Protection Act (PRPA), 63 P.S. §425. The court held that, in order to qualify as "peer review" and be eligible for the privilege protection, the entity on whose behalf the peer review is conducted must be a "professional health care provider" as defined by the statute. While this opinion focuses on Pennsylvania's specific peer review statute, the court's strict interpretation of its language may influence how plaintiffs' attorneys across the country argue that peer review protection should not extend to otherwise-protected peer review documents, based on the organization and structure of the entity that is the source of such information.
The case of Reginelli v. Boggs, 2018 BL 104420 (Pa. March 27, 2018) arose out of an incident in January 2011 in which Eleanor Reginelli was seen and discharged from the hospital's emergency room by Marcellus Boggs, M.D., allegedly with an undiagnosed heart condition that later resulted in a heart attack. The hospital in this case, Monongahela Valley Hospital (MVH), had contracted with UPMC Emergency Medicine, Inc. d/b/a Emergency Resource Management Inc. (ERMI) to provide staffing and administrative services for its emergency department. Dr. Boggs was a member of MVH's medical staff and was also employed by ERMI, and when Ms. Reginelli and her husband filed a negligence suit against Dr. Boggs, they also sued MVH for corporate negligence, as well as both MVH and ERMI under a vicarious liability theory.
During the discovery phase of this lawsuit, it was determined that the "performance file" on Dr. Boggs was maintained by the director of MVH's emergency department who, like Dr. Boggs, was both a member of the hospital's medical staff and an employee of ERMI. The emergency department director testified that the file was created as part of her regular practice of reviewing randomly selected charts associated with patients treated by ERMI-employed emergency room physicians. MVH and ERMI claimed that it was clearly protected from discovery by the statutory peer review protection. The trial court granted the Reginellis' motion to compel discovery. The Superior Court affirmed the trial court's decision and ordered the production of Dr. Boggs' performance file. ERMI and MVH then appealed to the Pennsylvania Supreme Court, claiming entitlement to the PRPA's privilege with respect to Dr. Boggs' performance file.
The four-justice majority opinion applied strict principles of interpretation to the PRPA and held that the peer review privilege unambiguously applied only to the evaluation procedures conducted by "professional health care providers." It found that ERMI, as a physician practice group under contract to the hospital, did not meet that definition because it was not itself "approved, licensed or otherwise regulated to practice or operate in the health care field."
Moreover, the majority reasoned that MVH is not entitled to claim peer review privilege because the privilege is reserved only for the "proceedings and records of a review committee" 63 P.S. §425.4 (emphasis added), and thus the performance file maintained by the director of MVH's emergency department was not a record of the hospital's peer review committee since it did not meet the statutory definition. The court asserted in dicta that, based on its reading of the definition of "review organization," the peer review privilege only applies to "committees" involved in reviewing the "quality and efficiency of service ordered or performed" by a physician when treating patients. The court distinguished this type of review organization, which is eligible for peer review privilege, from the review that occurs during the processing of a physician's credentials for the purpose of membership (or continued membership) on a hospital's medical staff, which the court concluded "are not 'review committees' entitled to claim the PRPA's evidentiary privilege."
A lengthy dissenting opinion disagreed with this interpretation of the PRPA. The dissent asserted that the majority's strict interpretation of the statute leads to an "unintuitive or even counterintuitive result," considering the broad intent of the Act to ensure the quality of healthcare by allowing candid and confidential peer review to occur. Furthermore, the dissent stated that the Pennsylvania legislature has clearly found that confidentiality is critical to such review and that "[n]othing in the PRPA suggests that sharing review materials among a chain of vertically integrated providers who collectively are responsible for a given health care facility should result in a waiver of that confidentiality."
Significant implications of this decision
The implications of this decision are profound. In Pennsylvania, it will now be incumbent on healthcare providers to prove that they are conducting peer review through an organized "committee" in order to claim protection from discovery. This decision in effect negates the presumption that all peer review is generally protected from discovery, and presages more intense discovery battles between plaintiffs and providers. Given the prevalence of hospital-based contracts in areas such as emergency medicine, radiology, anesthesiology and pathology that need to be staffed around the clock, how effective peer review can be conducted and protected will need to be re-examined.
Beyond Pennsylvania, in other states when fights over discovery of peer review information are waged, plaintiffs' lawyers will cite the majority's language to support broader access to this information. Whether courts in other jurisdictions will adopt the narrowing of the peer review protection as concluded by the Pennsylvania Supreme Court remains to be seen. In light of Reginelli, other courts may interpret state statutes governing peer review to exclude from protection peer review conducted by entities that employ physicians, or peer review conducted by and on behalf of accountable care organizations or other ancillary healthcare providers. In any event, this important decision has set the stage for a serious reconsideration of the scope and depth of the peer review protection in American healthcare organizations.
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