[co-author: Tausha Saunders]
Adopting a strict reading of the statutory language, the Pennsylvania Supreme Court has severely limited the scope of peer review privilege available to health care providers under Pennsylvania’s Peer Review Protection Act.
Voting 4-3, the Justices held in Reginelli v. Boggs that the “performance file” of an emergency medicine physician was ineligible for peer review privilege protection because PRPA evidentiary protection is restricted to a narrow class of entities using a peer review committee for a narrow class of specified activities.
The decision to limit the scope of the PRPA will undoubtedly have a significant impact on the state’s medical and legal landscapes, galvanizing plaintiffs’ attorneys to seek discovery of otherwise-protected peer review documents, while leaving organizations and health care providers uncertain if their peer review policies and procedures will receive evidentiary privilege.
The potential impact of Reginelli should not be underestimated. At the very least, it will have a chilling effect on members of the medical community who depend on peer review to regulate the quality of care and professionalism. Several large Pennsylvania health care providers have discussed the possibility of amending the PRPA to allow independent contractors to receive evidentiary privilege protection, but an organized plan of action has yet to materialize.
In the interim, health care providers will be forced to scramble to protect their employees from unwarranted discovery requests from plaintiffs’ attorneys now emboldened to ratchet up their attack on this important privilege.
Background
In January 2011, Eleanor Reginelli arrived at the Monongahela Valley Hospital emergency department, complaining of gastric discomfort. She was treated by Marcellus Boggs, M.D., and discharged, only to suffer a heart attack several days later. In 2012, Mrs. Reginelli and her husband brought a medical malpractice suit against Dr. Boggs for his alleged failure to diagnose her underlying heart condition. The couple also brought corporate negligence and vicarious liability claims against the hospital, Monongahela Valley Hospital (MVH) and the hospital’s contracted emergency services provider, Emergency Resource Management Inc. (ERMI). Dr. Boggs was an employee of both MVH and ERMI.
During a deposition, MVH's emergency department director and employee of ERMI, Brenda Walther, M.D. disclosed that she created and maintained a performance file on Dr. Boggs, as part of her supervisory role to randomly review and evaluate the charts of patients he treated. The Reginellis requested production of the performance file, and both MVH and ERMI objected, arguing that the file contained privileged peer review records protected under the PRPA. The trial court granted the Reginellis' motion to compel, and the Superior Court affirmed. ERMI and MVH then appealed to the Pennsylvania Supreme Court.
Peer Review
Medical professional conduct is largely regulated via peer review, or 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 ... ” Under the PRPA, only the “proceedings and records of a review committee” are considered privileged, and this protection extends only to proceedings where “one professional health care provider is evaluating another professional health care provider.”
Case Analysis
The Supreme Court affirmed the lower court decisions and held that neither ERMI nor MVH could claim the evidentiary privilege, and the performance file was therefore discoverable.
Justice Christine Donohue, writing for the four-justice majority, found that ERMI does not qualify as a professional health care provider under the PRPA because it had not been “approved, licensed or otherwise regulated” to operate in Pennsylvania’s health care field. Significantly, the court reached that holding by disregarding its own established case law. The majority went on to hold that even if ERMI were protected, it had waived the protection by disclosing Dr. Boggs’ file to MVH.
Although the majority found that MVH qualified as a professional health care provider, it held that the performance file was not entitled to peer review privilege under the PRPA through MVH because the hospital did not create or maintain the file, and there was no evidence to demonstrate that ERMI was contracted to conduct peer review services on behalf of MVH or that it had been requested to do so by MVH. The court also rejected the argument that Dr. Walthers, an individual, qualified as a peer review committee. Further, the Court also found that neither ERMI nor MVH could claim entitlement to the privilege since the file created by ERMI was shared with MVH.
Going beyond the scope of the issue before it, the court excluded hospital credentialing from peer review privilege and further limited PRPA’s scope to review committees that evaluate the “quality and efficiency of services ordered or performed” by a professional health care provider.
Implications
The Reginelli decision is already impacting Pennsylvania health care providers. The dissent filed by Justice David Wecht, and joined by Chief Justice Thomas Saylor and Justice Debra Todd, criticized the majority opinion as contrary to the statute’s stated purpose of ensuring “free and frank discussions” regarding quality of medical care rendered. Indeed, health care providers will now need to review all contracts, policies, and procedures to ensure that if their hospital-based physician groups are providing peer review, such peer review will be considered as being provided by a review committee, as defined under PRPA and that any findings by a review committee are kept confidential.
