{"id":571,"date":"2018-04-27T16:51:49","date_gmt":"2018-04-27T20:51:49","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/healthlaw\/?p=571"},"modified":"2021-07-07T21:16:11","modified_gmt":"2021-07-08T01:16:11","slug":"pa-supreme-court-significantly-narrows-application-of-states-peer-review-protection-act","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/healthlaw\/2018\/04\/27\/pa-supreme-court-significantly-narrows-application-of-states-peer-review-protection-act\/","title":{"rendered":"PA Supreme Court Significantly Narrows Application of State\u2019s Peer Review Protection Act"},"content":{"rendered":"

By Lisa Clark and Samantha Dalmass<\/a><\/strong><\/em><\/p>\n

On March 27, 2018, the Pennsylvania Supreme Court held in a 4-3 decision that the Pennsylvania Peer Review Protection Act (\u201cPRPA\u201d) would not prevent the disclosure of certain physician performance review files in an ongoing medical malpractice lawsuit despite arguments that the files in question were precisely the kind of peer review documents that the PRPA was intended to protect. This controversial decision limits the protection available to healthcare providers under the narrow PRPA evidentiary privilege and may significantly affect the manner in which Pennsylvania hospitals conduct peer review activities.<\/p>\n

The underlying lawsuit was brought in 2012 after plaintiff Eleanor Reginelli suffered a heart attack several days after being treated by Dr. Marcellus Boggs in the emergency room at Monongahela Valley Hospital (\u201cMVH\u201d) for gastric discomfort. The plaintiff alleged that Dr. Boggs failed to diagnose and properly treat an underlying and emergent heart condition before discharging her from MVH. She and her husband filed a four-count complaint in 2012, asserting claims against Dr. Boggs, MVH and UPMC Emergency Medicine, Inc. (\u201cERMI\u201d), which provides staffing and administrative services for the MVH emergency room.<\/p>\n

Dr. Boggs and the other physicians in the MVH emergency department, including Dr. Brenda Walther, were members of the medical staff at MVH and employed by ERMI. Dr. Walther served as the director of the MVH emergency department and supervised the ERMI-employed emergency department physicians working at MVH. When she was deposed during the discovery phase, Dr. Walther revealed that she had prepared and maintained a performance file on Dr. Boggs as part of her regular practice of reviewing randomly selected charts associated with ERMI-employed emergency department physicians. The Reginellis responded by filing discovery requests directed at MVH, seeking production of the complete performance review file for Dr. Boggs.<\/p>\n

MVH opposed the motion to compel and argued that the requested items fell squarely under the protection of the PRPA because they had been created and used for the purpose of reviewing the services rendered in the MVH emergency room. This argument was subsequently rejected by the trial court, and the plaintiffs\u2019 motion to compel was granted. At this point, ERMI and Dr. Boggs entered the discovery proceedings and filed a motion for a protective order, asserting entitlement to claim protection under the PRPA for the peer review work performed by an ERMI employee. ERMI argued that the performance file on Dr. Boggs fell outside of the peer review responsibilities that ERMI performed for MVH and that Dr. Walther had created and maintained the file solely on ERMI\u2019s behalf. However, this was not consistent with the motion for reconsideration filed by MVH in which the hospital alleged that Dr. Walther conducted the peer review work on behalf of both ERMI and MVH. Then, before the trial court could rule on the motions filed by MVH and ERMI, both entities appealed the trial court\u2019s decision to compel production to the Superior Court.<\/p>\n

The relationship between ERMI and MVH and the inconsistent claims regarding the performance review files were critical on appeal, and the Superior Court upheld the trial court decision that neither ERMI nor MVH were entitled to the evidentiary privilege. The lower court found that ERMI was acting as an independent contractor and, therefore, did not qualify as an entity enumerated in the PRPA as protected by peer review privilege. It also held that MVH could not claim privilege based on the finding that MVH had neither generated nor maintained the performance file for Dr. Boggs.<\/p>\n

Both ERMI and MVH appealed the decision, but in the 26-page opinion written by Justice Donahue, the Pennsylvania Supreme Court held that neither entity was in a position to claim the PRPA\u2019s evidentiary privilege.<\/p>\n

The Pennsylvania Supreme Court first considered whether ERMI could claim entitlement to protections under the PRPA. The PRPA defines \u201cpeer review\u201d as the \u201cprocedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers.\u201d The court\u2019s analysis hinged on whether ERMI could hold itself out as a \u201cprofessional health care provider,\u201d which is defined under the PRPA as \u201cindividuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth of Pennsylvania.\u201d There are 12 types of entities enumerated in the statutory definition, including hospitals and physicians. The court said that although it described itself as a \u201cphysician organization comprised of hundreds of individual emergency medical physicians\u2026 that exists specifically to provide emergency medical services,\u201d ERMI could not claim to be any of the 12 listed entities set forth in the statutory definition. The court said ERMI was not a \u201cprofessional health care provider\u201d because it was not approved, licensed or otherwise regulated to practice or operate in the healthcare field in Pennsylvania, and it did not become one merely because one of the professional healthcare providers it employed conducted an evaluation of another.<\/p>\n

After holding that EMRI could not claim the evidentiary privilege because it did not qualify as a \u201cprofessional health care provider,\u201d the court addressed whether the PRPA was available to MVH. Although MVH clearly met the statutory definition of \u201cprofessional health care provider,\u201d the court declined to afford it protection under the PRPA on the grounds that Dr. Walther had not been established as member of the hospital\u2019s peer review committee and the PRPA\u2019s evidentiary privilege is reserved only for the proceedings and documents of a review committee. MVH had previously stated that Dr. Walther acted as a \u201cseparate\u201d peer review committee for the ERMI-supplied emergency department physicians, which led the court to conclude that Dr. Walther had conducted peer review activities as an individual. Based on the majority\u2019s interpretation of the PRPA, individuals conducting peer review may qualify as a \u201creview organization\u201d but not as a \u201creview committee\u201d engaging in peer review.<\/p>\n

Notably, the court further explained that the PRPA does not extend its grant of the evidentiary privilege to the category of review organization enumerated in the second sentence of the statutory definition of \u201creview organization.\u201d This category includes \u201cany hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission hereto.\u201d The court expressly identified credentials review as falling outside the scope of peer review privilege under the PRPA.<\/p>\n

The court then addressed the argument that the performance files were entitled to peer review protection because the hospital had contracted with ERMI to perform its peer review activities. MVH pointed out that this type of relationship was very common, and hospitals would struggle to survive if they were not able to contract with outside entities like ERMI to fulfill peer review responsibilities. MVH argued that ERMI was contractually bound to perform peer review activities on its behalf. However, the court found this argument lacked merit because it was inconsistent with earlier arguments made by ERMI and unverifiable since neither MVH nor ERMI had thought to include the emergency services contract in the record. Although the Court recognized that no statutory provision exists to preclude a hospital from entering into a contact with a staffing and administrative services entity to conduct peer review services for the hospital\u2019s peer review committee, it refused to consider the issue without conclusive documentary evidence.<\/p>\n

In a dissenting opinion, Justice Wecht found the conclusions made by the lower courts and the majority to be at odds with the intent of the legislature in creating the peer review privilege. The dissent found that ERMI did, in fact, qualify as a professional healthcare provider and went on to say that \u201cthe majority\u2019s contrary interpretation guts the privilege, given that such contractual staffing and administrative agreements are commonplace.\u201d Justice Wecht also expresses concern about the destabilizing effect of the majority\u2019s reliance on \u201cless than clear\u201d statutory definitions.<\/p>\n

This decision has significant implications for healthcare providers in Pennsylvania, especially hospitals and physician groups that contract with outside entities to perform peer review activities. The Supreme Court left the question open as to whether such relationships are permitted and whether the PRPA would apply to peer review documents produced by an outside peer review entity on a provider\u2019s behalf. Therefore, hospitals should carefully evaluate any contracts related to peer review services to make sure that the provisions clearly spell out that such services are performed on the hospital\u2019s behalf. Hospitals may also want to evaluate policies and procedures relating to credentials review as the majority opinion seems to have eliminated the evidentiary privilege for such review activities, finding them to be outside of the scope of peer review protection.<\/p>\n

Lisa Clark is a partner in Duane Morris\u2019 Healthcare Law practice with specific\u00a0focuses\u00a0in\u00a0health information technology<\/a>, regulatory compliance and reimbursement matters\u00a0for hospitals,\u00a0physicians and other\u00a0healthcare providers; software developers and investors in HIT and healthcare products and services; and subcontractors and vendors providing services to the healthcare industry.\u00a0<\/em><\/p>\n

Samantha Dalmass is a law clerk at Duane Morris, currently pursuing her J.D. and a Master of Public Health at Drexel University. \u00a0\u00a0\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Lisa Clark and Samantha Dalmass On March 27, 2018, the Pennsylvania Supreme Court held in a 4-3 decision that the Pennsylvania Peer Review Protection Act (\u201cPRPA\u201d) would not prevent the disclosure of certain physician performance review files in an ongoing medical malpractice lawsuit despite arguments that the files in question were precisely the kind … <\/p>\n

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