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Pa. Supreme Court Considering Medical Malpractice Case with Implications for Peer Review Process Confidentiality

The Pennsylvania Supreme Court is in the process of considering an important issue regarding the Peer Review Protection Act (PRPA), which could significantly impact the confidentiality of the peer review process for some physicians and professional health care providers in the commonwealth.

The PRPA requires the proceedings and records of a review committee to be held in confidence. Accordingly, it protects from discovery any information and materials developed as the result of a committee's review of a health care provider. No one who participated in the committee's review is permitted to testify in a civil proceeding about the contents or results of the review. Information, documents or records otherwise available, however, are not protected.

The Pennsylvania Supreme Court will determine whether peer review documents developed by an independent contractor, whose employees staff a hospital under contract, should be entitled to the PRPA confidentiality protections.

Arguments in the case were heard by the Pa. Supreme Court on April 4, 2017, and a decision is pending.

Factual Background

This case stems from an August 2012 medical malpractice lawsuit brought by Mrs. Reginelli against Dr. Boggs, an emergency department physician and employee of Emergency Resources Management, Inc. (ERMI).  ERMI is an independent contractor that contracts Monongahela Valley Hospital to operate the hospital's emergency room.

In January 2011, Mrs. Reginelli experienced chest pain and was taken to see Dr. Boggs. She subsequently sued Dr. Boggs in August 2012, alleging that his negligence resulted in permanent damage to her heart.

During discovery, Mrs. Reginelli learned that Dr. Boggs' supervisor, Dr. Brenda Walther (who is also an employee of ERMI) had performance data for the emergency department physicians, which included Dr. Boggs' performance file. Mrs. Reginelli submitted to the trial court a motion to compel Dr. Walther's performance data. The trial court subsequently issued an order granting Mrs. Reginelli's motion to compel.

Dr. Boggs, the hospital, and ERMI appealed the order, but only related to Dr. Boggs' performance file, asserting that the file is privileged as peer review.

The Superior Court affirmed the trial court's order.

In its opinion, the Superior Court acknowledged the PRPA's requirement that "proceedings and records of review committee shall be held in confidence." However, before granting the protection afforded by the Act, the court noted that the following criteria: (1) the party asserting the privilege of protection must prove that the privilege has been properly invoked; and, (2) the privilege only applies to information that remains private. 

Based on this criteria, the court held that the privilege could not be granted to the hospital, ERMI, and Dr. Boggs:

(1) The hospital could not claim the privilege because the performance file was created and maintained by Dr. Walther on behalf of ERMI; the hospital could not claim the privilege for documents it did not create or maintain.

(2) ERMI and Dr. Boggs are unable to claim the privilege because as an independent contractor, ERMI, is not an entity that is afforded protection under the Act; and                         

(3) Even if ERMI and Dr. Boggs were able to claim the privilege, the privilege was lost when they shared the file with the hospital.

PAMED's Legal Advocacy Effort

The Pennsylvania Medical Society (PAMED), with support from the American Medical Association (AMA), has filed an amicus brief in support of protecting from disclosure the peer review proceedings of a third-party medical provider whose employees staff a hospital under contract.

The AMA has joined the brief on its own behalf and as a representative of the Litigation Center of the American Medical Association and the State Medical Societies. The Litigation Center is a coalition among the AMA and the medical societies of each state, plus the District of Columbia, whose purpose is to represent the viewpoint of organized medicine in the courts. 

The AMA is the largest professional association of physicians, residents and medical students in the United States. Additionally, through state and specialty medical societies and other physician groups seated in its House of Delegates, substantially all United States physicians, residents and medical students are represented in the AMA's policy making process. The objectives of the AMA are to promote the science and art of medicine and the betterment of public health. AMA members practice in every medical specialty area and in every state, including Pennsylvania.

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