Pennsylvania Supreme Court to Address Whether Peer Review Privilege Applies to Hospital Credentialing

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Last week, the Pennsylvania Supreme Court announced it would address whether the Pennsylvania Peer Review Protection Act (PRPA or Act) protects documents in hospital credentialing files. This decision could significantly impact how hospitals conduct crucial credentialing and recredentialing activities, given the need for both candid and forthright information from peer physicians and the danger that such feedback could be later misused in medical malpractice actions.

The Peer Review Privilege

Enacted in 1974, the PRPA protects the “proceedings and documents of a review committee” from discovery or introduction into evidence. The Act provides immunity from liability for individuals providing information to a review organization [1] and ensures that review committee records “shall be held in confidence.” [2]

In enacting the PRPA, the Pennsylvania legislature had the goal of “providing for the increased use of peer review groups by giving protection to individuals and data who report to any review group.” [3] Pennsylvania courts have further commented that the legislature’s intent in enacting the statute was to “(1) improve the quality of care rendered, (2) reduce morbidity and mortality; and (3) keep within reasonable bounds the cost of healthcare.” [4] The immunity and confidentiality provisions are based on the belief that, “the medical profession itself is in the best position to police its own activities,” [5] and were enacted to “foster free and frank discussions by review organizations.” [6]

Importantly, the PRPA contains definitions as to “peer review” and “review organizations” that govern the Act. The Act defines “peer review” as “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,” and lists many examples of the qualifying types of reviews. The Act defines “review organizations” as “any committee engaging in peer review,” and lists many examples of such committees. These definitions have been the topic of intense litigation as aggressive plaintiffs’ attorneys seek discovery of peer review materials in professional negligence actions.

The Pennsylvania Supreme Court’s Prior Opinion in Reginelli v. Boggs

Reginelli v. Boggs, a hotly contested 4-3 decision from the Pennsylvania Supreme Court issued in 2018, narrowed the protection available to health care providers under the PRPA’s evidentiary privileges.

Plaintiff Eleanor Reginelli brought suit after suffering a heart attack shortly after seeking treatment from Dr. Marcellus Boggs at Monongahela Valley Hospital (MVH) for gastric discomfort. She brought negligence claims against Dr. Boggs, MVH, and UPMC Emergency Medicine, Inc. (ERMI), an organization that contracted with the hospital to provide staffing and administrative services for its emergency room.

The Reginellis served discovery requests seeking production of the complete performance review file for Dr. Boggs. MVH asserted the documents fell under PRPA protection since they were created and used to review the services rendered in the MVH emergency room. ERMI employee Dr. Walther prepared the relevant file, and the lower court determined that in preparing the review, ERMI acted as an independent contractor and did not qualify as an entity protected by the peer review privilege.

The Pennsylvania Supreme Court considered whether ERMI qualified as an organization entitled to PRPA protection. The determination largely hinged on the distinction between the statutory definitions of a “review organization” and a “review committee.” The court determined that a “review organization” defined the type of entity that constitutes a “review committee,” as “any committee engaging in peer review.” Conversely, the second sentence of the definition for “review organization” did not contain a reference to “peer review,” and simply refers to a “hospital board, committee, or individual” involved in the review of “the professional qualifications or activities of its medical staff or applicants.” Thus, it found that Dr. Walther’s review for ERMI qualified as one completed by a “review organization,” but not a “review committee” protected under PRPA’s evidentiary privilege.

Superior Court decision in Leadbitter v. Keystone Anesthesia Consultants, Ltd. [7]

On February 12, 2020, the Pennsylvania Superior Court affirmed a trial court’s determination that the PRPA did not protect disclosure of professional opinions and performance evaluations of a surgeon, which the hospital’s credentialing committee had obtained from other physicians and reviewed before granting privileges.

In November 2014, Dr. Petraglia examined plaintiff James Leadbitter and recommended spinal surgery. Following surgeries in January 2015, Mr. Leadbitter suffered a series of strokes, resulting in a host of injuries. He filed a complaint in January 2017 for negligence and loss of consortium against Dr. Petraglia and St. Clair Hospital. When he requested Dr. Petraglia’s credentialing file, St. Clair Hospital produced only the portions it determined discoverable and removed or redacted certain portions, asserting privilege under the PRPA.

Applying Reginelli, the Superior Court determined that St. Clair Hospital’s credentialing committee was a “review organization,” but not a “review committee.” The court reasoned that the process of reviewing a physician’s credentials for the purpose of determining membership on the medical staff is distinct from reviewing the quality and efficiency of services ordered by a physician when treating patients. Because of this distinction, it determined the documents were not privilege-protected under the PRPA.

However, the Superior Court commented that “it would be helpful for the Supreme Court to grant allocator and address this issue directly,” as the Supreme Court assumed that documents in a credentialing file are not peer reviewed, but in this case, the documents at issue are peer review documents. In the Supreme Court’s September 15, 2020 order, the court stated that it would determine whether the Superior Court’s holding directly conflicts with the PRPA and misapplies Reginelli by ordering the production of acknowledged “peer review documents” solely because they were maintained in a physician’s credentialing file.

Implications

The Pennsylvania Supreme Court’s grant of review provides an opportunity to clarify whether hospitals can rely on peer review protections when conducting crucial credentialing activities. If not, there could be a significant chilling effect on the ability of hospitals to obtain much needed candid feedback from physician peers on their colleagues’ performance, quality, and safety. As the legislature recognized when enacting the PRPA, such candor in the peer review process is necessary to foster the open and frank discussions among physicians, which ultimately result in improved quality and safety for patients.

We will continue to monitor this case and provide an update when the Pennsylvania Supreme Court issues its ruling. Depending on the direction the court takes, hospitals and health systems may have to quickly rethink and restructure their medical staff credentialing processes accordingly. 


[1] 63 P.S. §425.3.

[2] 63 P.S. §425.4.

[3] 63 P.S. § 425.1, Historical and Statutory Notes.

[4] Robinson v. Magovern, 83 F.R.D. 79, 86 (W.D.Pa. 1979).

[5] Reginelli v. Boggs, 181 A.3d 293, 300 (Pa. 2018).

[6] Sanderson v. Frank S. Bryan, M.D., Ltd., 522 A.2d 1138, 1140 (Pa. Super. Ct. 1987).

[7] Leadbitter v. Keystone Anesthesia Consultants, Ltd., 229 A.3d 292 (Pa. Super. Ct. 2020).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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