Last Updated: Mar 29, 2018
On March 27, 2018, the Pennsylvania Supreme Court, in a 4 to 3 decision, held that the Peer Review Protection Act (PRPA) did not extend to a third-party health care provider contracting with a hospital to provide emergency department services. In addition, the Court held that credential reviews are not protected by the Act.
The Court’s decision drastically narrows the scope of the PRPA and continues the erosion to the safeguards afforded under the Act.
At issue in this case was the disclosure of Dr. Marcellus Boggs' performance file. Monongahela Valley Hospital (MVH) contracted with UPMC Emergency Medicine, Inc. (ERMI) to provide staffing and administrative services for the hospital’s emergency room. Dr. Boggs was an employee of ERMI. He worked in MVH’s emergency department and was supervised by Dr. Brenda Walther, the MVH Emergency Department Director, who was also an ERMI employee.
Mr. and Mrs. Reginelli sued Dr. Boggs, MVH and ERMI as a result of care Dr. Boggs provided Mrs. Reginelli in the MVH emergency room. During a pre-trial deposition, Dr. Walther stated that she maintained a file on Dr. Boggs, and all ERMI physicians under her supervision, as part of her practice of reviewing randomly selected charts associated with all patients treated by ERMI-employed physicians.
Pursuant to Dr. Walther’s disclosure, the Reginellis sought to obtain from MVH the performance file Dr. Walther created for Dr. Boggs. MVH declined to disclose the file arguing that it was protected under the PRPA. The trial court, ultimately, issued an order requiring the production of Dr. Boggs’ file. In response to the court’s order, ERMI filed a motion for a protective order asserting evidentiary privilege under PRPA. Shortly thereafter, MVH and ERMI appealed to the Superior Court.
The Superior Court affirmed the trial court’s order, holding that MVH could not claim the privilege because the performance file was created and maintained by Dr. Walther on behalf of ERMI; therefore, the hospital could not claim the privilege for documents it did not create or maintain. The court also held that ERMI was unable to claim the privilege because as an independent contractor, ERMI is not an entity that is entitled to protection under the Act. And, finally, the intermediate court held that even if ERMI was able to claim the privilege under the PRPA, the privilege was lost when ERMI shared the performance file with MVH.
MVH and ERMI subsequently appealed the Superior Court’s decision to the state Supreme Court.
State Supreme Court Refuses to Extend PRPA Protection to the Third-Party Health Care Provider
The PRPA requires that the proceedings and records of a review committee be held in confidence. The Act protects from discovery in any civil action against a professional health care provider documents generated by or in connection with peer review.
The Act defines a “professional health care provider” as follows:
[I]ndividuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations: a physician; a dentist; a podiatrist; a chiropractor; an optometrist; a psychologist; a pharmacist; a registered or practical nurse; a physical therapist; an administrator of a hospital, nursing or convalescent home or other health care facility; or a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility; or individuals licensed to practice veterinary medicine under the laws of the Commonwealth.
ERMI argued that the Superior Court’s ruling that ERMI was not an entity entitled to protection under the PRPA was the result of the court’s narrow interpretation of the Act. ERMI asserted that although it does not exactly match any of the types of “professional health care providers” as defined under the Act, it could be considered a “physician” or “a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility.”
The majority opinion, authored by Justice Donohue, rejected ERMI’s argument and held that ERMI is not a “professional health care provider.” The Majority noted that even if ERMI qualified as one of the individuals or organizations enumerated, the PRPA requires that the individual or organization be “approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth.” The Majority reasoned that although “ERMI is an organization that is comprised of hundreds of “professional health care providers” (namely, physicians), it is not itself a “professional health care provider” because it is unregulated and unlicensed.”
MVH also argued that it is a professional health care provider and, therefore, entitled to PRPA protection. Since Dr. Walther, MVH contended, is the hospital’s medical director and a member of the hospital’s medical staff, Dr. Walther’s performance review of another member of the medical staff should qualify for protection under the PRPA. To provide additional support to their argument, MVH reasoned that the PRPA affords protection to “review organizations”, which the Act defines as “… any…individual reviewing the professional qualifications or activities of its medical staff or applicants ….”
The Majority refused the arguments asserted by MVH. The Majority stated that MVH is not entitled to claim the PRPA’s evidentiary privilege based upon Dr. Walther’s work as a member of its medical staff, since Dr. Walther, as an individual, was not a “review committee” engaging in peer review as defined by the Act.
In reaching this holding, the Majority reasoned that the PRPA definition of “review organization” can be divided into categories. The first category, according to the Majority, identifies the types of entities that constitute a “review committee” for the purposes of peer review; it is this category the Majority deemed the evidentiary privilege applies.
The second category of “review organization”, the Majority contended, addresses credentials review; it is this section, MVH argued, that extended evidentiary protection to Dr. Walther. The Majority, however, opined that this category (i.e. credentials review) does not involve peer review, as the term is defined under the Act and although individuals in this category are defined as a type of review organization, these individuals are not “review committees” entitled to claim the PRPA’s evidentiary privilege.
The dissent, authored by Justice Wecht, recognized the commonplace reality of hospital reliance on contractors to operate departments as a method of increasing efficiency and reducing exposure to malpractice liability. The Dissent referenced the amicus curiae brief submitted by the Pennsylvania Medical Society (PAMED) and the American Medical Association, which noted that these types of hospital/contractor arrangements are common in specialties that must be staffed around the clock, such as emergency medicine, radiology, anesthesiology, and pathology.
The Dissent recognized the ambiguous nature of the statutory language, but essentially concluded that the Majority’s interpretation ran contrary to the legislature’s intent and the public policy rationale of the statute. The Dissent expressed concern about the potential chilling effect the Majority opinion could have on the candor the PPRA was intended to provide to allow health care providers to improve and protect the quality of patient care.
Justices Baer, Dougherty, and Mundy joined Justice Donohue’s Majority opinion. Justices Saylor and Todd joined Justice Wecht’s dissenting opinion.
The Potential Ramifications of the High Court’s Decision on Pennsylvania Physicians
For decades, the courts have recognized the importance of the PRPA in promoting quality health care. The confidentiality protections under the Act ensure the “frank, probing assessment of physicians by their peers” necessary to encourage effective evaluation to improve the quality of health care rendered, reduce morbidity and mortality, and control health care costs.
The decision will also force hospitals to reconsider their organizational structures to ensure continued protection of the information exchanged between their entities and the third-party providers with whom they contract.
Additionally, and probably most disturbingly for all Pennsylvania physicians, is the Majority’s decision to remove the protections previously afforded to credentials review. It is well understood that information that would be protected under the Act (i.e., the quality and efficiency of services ordered or performed by a health professional health care provider) is routinely discussed during the credentialing process. As a result of the Majority’s opinion, the information discussed in credentialing review may now be vulnerable to discovery in medical malpractice litigation.