A deeply split Pennsylvania Supreme Court has ruled that peer review documents are only covered under the Peer Review Protection Act if they are generated by organizations that are regulated by the state to operate in the health care industry.

In Reginelli v. Boggs, the justices ruled 4-3 to affirm an unpublished state Superior Court decision that said peer review documents generated by Emergency Resource Management Inc., an outside contractor to Monongahela Valley Hospital, were subject to disclosure in a medical malpractice case because ERMI was “not an entity enumerated in the [PRPA] as being protected by peer review privilege.”

The Supreme Court majority said the plain language of the statute supported the Superior Court's analysis.

“No principled reading of the definition of 'professional health care provider' permits any entity to qualify if it is not approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of Pennsylvania,” Justice Christine Donohue wrote for the majority. “As such, while 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.”

Donohue was joined by Justices Max Baer, Kevin Dougherty and Sallie Updyke Mundy.

Justice David Wecht filed a dissenting opinion, joined by Chief Justice Thomas Saylor and Justice Debra Todd, arguing that the majority's ruling ran contrary to the legislative intent behind the PRPA.

“We have noted, and the majority does not dispute, that the act aims to encourage full and frank assessments of health care providers by other health care providers who are best qualified for that task,” Wecht said. ”Whether the licensure, approval, or regulation requirement that undisputedly applies to MVH and its emergency department applies by extension to the contractor through its promise to ensure that the hospital complies with all state requirements seems beside the point: to exclude ERMI on the basis that it is not a professional health care provider under the expansive statutory definition would create a circumstance in which application of the peer review privilege to proceedings associated with a hospital department depends solely upon whether the hospital operates its own department or contracts with an outside corporate entity to do so.”

The underlying medical malpractice suit, according to court papers, stemmed from claims that Dr. Marcellus Boggs negligently treated plaintiff Eleanor Reginelli for chest pains, which caused permanent heart damage.

Boggs, a physician in MVH's emergency room, was an employee of ERMI, an organization that provides staffing and administrative services to hospitals. The plaintiffs moved to compel discovery of peer review documents prepared by Boggs' supervisor, Dr. Brenda Walther, who was also an ERMI employee, according to court papers.

Former Washington County Court of Common Pleas Judge Debbie O'Dell Seneca ruled in August 2014 that the records were not privileged. Boggs, the hospital and ERMI appealed.

In a seven-page opinion, a three-judge Superior Court panel upheld O'Dell Seneca's ruling.

On appeal, according to Donohue, ERMI argued that while it did not fit squarely within any of the 12 types of professional health care providers listed in the PRPA's definition of that term, it is still covered by the statute because it “delivers medical care to patients through its physicians.”

Donohue disagreed.

“ERMI is a business entity that provides hospitals and other health care facilities, pursuant to contractual agreements, with staff involved with the provision of emergency medical services,” she said. ”While it is true that a plurality of this court in McClellan [v. Health Maintenance Organization of Pennsylvania] identified the provision of health care services as one requirement for a professional health care provider, the express language of the PRPA's definition provides a more fundamental requisite for qualification—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.'”

Donohue also rejected ERMI's argument that the documents at issue were privileged because they were generated and maintained by Walther in her review of Boggs' performance.

“Individuals conducting peer review are not defined as a 'review committee' under the PRPA, even if they qualify as another type of 'review organization,'” Donohue said.

Donohue noted that, under the PRPA, a “review organization” and a “review committee” are two different things. The PRPA defines a “review organization” as a “hospital board, committee or individual” involved in reviewing ”the professional qualifications or activities of its medical staff or applicants thereto,” known as credentialing review. A ”review committee,” on the other hand, is “any committee” that engages in “peer review,” which the PRPA defines as an assessment of the “quality and efficiency of services ordered or performed” by a professional health care provider.

“Contrary to MVH's contention, the PRPA does not use the terms 'committee' and
'individual' interchangeably,” Donohue said. “If the two terms were interchangeable, the reference to both ('committee or individual') in the second sentence of the definition of 'review
organization' would constitute unnecessary surplusage, which is not permissible under
basic statutory construction principles. Moreover, and more importantly, the terms 'review committee' and 'review organization' are not interchangeable, as they connote distinct types of entities under the PRPA.”

Donohue said credentialing review is not protected from disclosure by the PRPA and added in a footnote that the Supreme Court disapproves of prior Superior Court rulings that held otherwise.

MVH and ERMI also argued to the Supreme Court that ERMI's peer review services were provided on MVH's behalf pursuant to a contract between the two parties. Donohue said that claim was not preserved on appeal.

“While [ERMI] now represents to this court that ERMI performed peer review services on behalf of MVH pursuant to their contractual agreement, it offers no explanation for its prior representations to the lower courts that the performance file was created and maintained solely on behalf of ERMI and that it was never disseminated to MVH (as one would expect it would be if ERMI was performing the peer review now at issue for the benefit of MVH),” Donohue said.

Counsel for the plaintiffs, Rudolph Massa of Massa Law Group in Pittsburgh, said he thought the court provided much-needed clarity to the peer review privilege that will guide lower courts' interpretations of the PRPA going forward.

Massa said he also thought the ruling that credentialing reviews are not privileged was an important one.

“Transparency is something that should make the care better and safer,” he said.

John Conti of Dickey, McCamey & Chilcote in Pittsburgh represented ERMI's parent company, UPMC. He could not immediately be reached for comment.

Counsel for MVH, Douglas Nolin of Peacock Keller, & Ecker in Washington, also could not immediately be reached.