For years, the defense bar has asserted the privileges and protections afforded by the Peer Review Protection Act, MCARE Act, Patient Safety and Quality Improvement Act, and the Health Care Quality Improvement Act. They relied on these privileges in the face of pointed discovery in order to safeguard certain physician-related or event-related documentation (including physician credential files, employment files, employment applications, event reports and peer review reports). However, between 2015 and 2020, the Pennsylvania Superior Court issued four opinions that limited the protections afforded by the statutes, and unequivocally stated that physical credentialing files were not protected from discovery in malpractice litigation. The drastic narrowing of discovery privileges and creation of bright line rules potentially threaten the objective set forth by Congress to improve the quality of medical care.

In Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018), the Pennsylvania Supreme Court granted allocatur to address the question of whether the Peer Review Protection Act (PRPA) afforded statutory privilege to physicians' credentialing files and performance reviews. The defendants, a staffing and administrative services agency and a hospital, objected to the disclosure of performance reviews created by a single individual. At the outset, the court determined the staffing agency's challenge was invalid and that it was not entitled to the protections of the PRPA because they were not "approved, licensed, or otherwise regulated to practice or operate in the healthcare field in Pennsylvania." See Reginelli v. Boggs, 181 A.3d 293, 304 (Pa. 2018). It was inconsequential that an employee created a performance file akin to that which is generated by a peer review committee. Likewise, the court found that the hospital was not entitled to the evidentiary privileges afforded under the PRPA. In doing so, the court focused specifically upon the definition of "review organization" and its application to the evidentiary privilege, concluding  that the evidentiary privilege extends to "review committees" only; not review organizations. The court further reasoned that a single individual did not meet the definition of a "review committee," and therefore the resulting performance reviews could not be protected.