Vasilios “Bill” Kalogredis.

Another Pennsylvania case has tackled what information falls within the Pennsylvania Peer Review Protection Act (PRPA), 63 P.S. 425.1, et seq. The reader may recall that last year the Pennsylvania Supreme Court's decision in Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018), excluded the personnel files of a hospital's contractor from the PRPA's scope. This year, in Estate of Krappa v. Lyons, 2019 Pa. Super. 168 (Pa. Super. Ct. 2019), decided May 7, the Pennsylvania Superior Court extended the exclusion to the files of a hospital's own credentialing committee.

Reginelli was a medical malpractice case. The hospital in the case, Monongahela Valley Hospital, had contracted with UPMC Emergency Medicine, Inc. (UEM) for administrative and staffing services in the hospital's emergency department. The plaintiff, Eleanor Reginelli, arrived at the hospital by ambulance with stomach pains. She was treated by Dr. Marcellus Boggs who, Reginelli alleged, failed to diagnose a heart problem. The plaintiff's counsel filed a motion seeking from the hospital Boggs' performance file prepared and maintained by his ER supervisor, Dr. Brenda Walther. Both Boggs and Walther were UEM employees.

In making its decision, the court weighed the “laudable goal” of the PRPA (i.e., maintaining high standards in the medical profession by using confidentiality and immunity to improve the quality of peer reviews) against facilitating the “search for truth” (i.e., interpreting evidentiary privileges narrowly to permit a more complete discovery exchange). Though the analysis is far more nuanced than the following, suffice it to say for an article about a different case that the court granted the plaintiff's motion. Though the ruling was focused on the personnel files of a hospital's contractor, predictions at the time foresaw the decision's potential to further narrow the application of the PRPA to certain internal files.

The newer case, Estate of Krappa, involves allegations related to a delay in a cancer diagnosis. Though the complaint includes 13 counts against numerous defendants, the primary issue is the interpretation of CT scan results by Dr. Frank Piro. As with Reginelli, the Superior Court was called to decide whether the lower court properly granted a motion to compel discovery. The records at issue, however, were not those of a contractor, but the internal records of a Community Medical Center's own credentialing committee. Three days before trial, the plaintiff filed an emergency motion to compel the production of complete and unredacted credentialing materials used to both appoint and reappoint Piro and another doctor, Dr. David Sabbar, to their professional roles.

After describing the PRPA and certain of its defined terms, the Superior Court analyzed the Reginelli decision. Specifically, it repeated the Pennsylvania Supreme Court's finding that the PRPA limits the evidentiary privilege for the proceedings and documents of review committees as distinguished from review organizations. According to the Reginelli decision, the former performs peer review while the latter simply reviews professional qualifications of current and prospective staff members. Critically, review organizations do not engage in peer review. Although the Reginelli decision categorized credentialing committees as review organizations that do not enjoy the PRPA's evidentiary provision, Community Medical Center's attorneys argued that such a categorization was merely dicta. The Superior Court disagreed.

The lower court performed an in camera review of the materials sought by the plaintiff's emergency motion and found that the files of Piro and Sabbar contained solely credentialing materials for those two physicians. The Superior Court performed its own review of the relevant records and confirmed the lower court's finding. It concluded further that, “the materials in the doctors' personnel files are generated and maintained by the appellant's credentialing committee. The PRPA's protections do not extend to the credentialing committee's materials, because this entity does not qualify as a 'review committee'” as that term was interpreted and discussed in the Reginelli decision. With that, the plaintiff was entitled to the two doctors' files.

As the Pennsylvania Supreme Court phrased it in its Reginelli decision, the PRPA has a laudable goal. Specifically, the Pennsylvania General Assembly made a public policy determination to foster open and honest discussions with health care facilities' review organizations so as to increase the “use of peer review groups by giving protection to individuals and data who report to any review group,” see 63 P.S. Section 425.1, Historical and Statutory Notes. The U.S. District Court for the Western District of Pennsylvania in Robinson v. Magovern, 83 F.R.D. 79 (W.D. Pa. 1979), described three goals of the PRPA thusly: “improve the quality of care rendered; reduce morbidity and mortality; and keep within reasonable bounds the costs of health care.”

For hospitals across the commonwealth, Reginelli and Estate of Krappa have brought into stark relief that the means of accomplishing the foregoing goals are not without bounds. In particular, hospitals must recognize that there are countervailing forces limiting the scope of the PRPA, including the judiciary's interest in promoting a thorough exchange of discovery. None of this is to say that the courts can simply substitute their public policy determinations for those of the General Assembly. But it is to say that the courts will look carefully at the specific discovery sought, interpret the language of the PRPA narrowly, and potentially conclude that the discovery falls outside the confines of the statute.

Some may argue that these decisions will chill frank participation in peer review processes. Granted, they may give certain participants and organizations pause. However, it is important to keep in mind that the decisions in both Reginelli and Estate of Krappa are detailed and well-reasoned. They essentially spell out to hospitals what information is likely to fall within or without the boundaries of the PRPA. Rather than panic, hospitals and health care professionals will be better served by familiarizing themselves with the courts' analyses in Reginelli and Estate of Krappa. The Reginelli decision in particular sets forth a discussion that serves as a road map of how a court is likely to apply the PRPA to a discovery request. With such an understanding, health care professionals can understand how different aspects of their files are likely to be categorized and health care facilities can clean up their peer review policies and procedures, as necessary, to better accomplish what is intended.

—Andrew Stein, an associate at Lamb McErlane, who focuses on health and business law, assisted with preparing this article.

Vasilios J. Kalogredis is chairman of Lamb McErlane's health law department. He represents many medical and dental groups and thousands of individual physicians and dentists.