From 'Reginelli' to 'Leadbitter': The Evolution of the Peer Review Protection Act

Imagine yourself as a hospital administrator. You are made aware of an incident where a patient who has undergone surgery was administered an inappropriate medication intra-operatively. As a result of this error, the patient suffered a cardiac arrest, resulting in severe injuries. Hospital staff and administration question what happened. Was there an order for this inappropriate medication? If so, who ordered it and why? Was the medication mislabeled? Was the patient’s allergy list consulted beforehand? In the hospital’s pursuit of quality improvement, they ask someone from the OR staff to complete an event report in the hospital’s online event reporting system (ERS). The event report is then submitted to the hospital’s patient safety organization (PSO). The hospital PSO performs a root cause analysis (RCA) of the event and makes recommendations as to how such an error can be avoided in the future. Certain documents from the peer-review process are placed in the surgeon’s credentialing file at the hospital. Two years later, the patient files a medical malpractice lawsuit against the hospital and the surgeon alleging negligence in connection with this medication error. Discovery commences and questions arise as to what, if any, of these documents, reports, submissions, reviews and analysis are privileged and protected. Is anything discoverable by plaintiffs counsel? Is all of it discoverable?

Confidentiality (or lack thereof) of documents submitted to or generated by patient safety, peer review, and credentialing committees has long been a question pondered by the courts in connection with discovery conducted in medical malpractice cases. It has generally been recognized that health care institutions have a duty to review adverse patient outcomes in an effort to improve the quality of patient care. Our legislature recognized the value of these candid review efforts in 1974 when passing the Pennsylvania Peer Review Protection Act (PRPA), 63 P.S. Section 425.4. The PRPA affords health care providers the opportunity to conduct these review efforts confidentially. Pennsylvania courts have consistently held that the core function of the PRPA is to improve the quality of health care through frank and open discussions, free from the risk that hindsight analysis could be used to prove liability against the health care providers in a subsequently filed malpractice lawsuit. And yet, over the past decade, Pennsylvania appellate courts have increasingly found reasons to erode these confidentiality protections in favor of giving individual plaintiffs access to documents and investigations formerly understood to be privileged and not discoverable. Ultimately, with the Pennsylvania Supreme Court’s opinion in Reginelli (2018), followed by the Pennsylvania Superior Court’s opinions in Estate of Krappa (2019) and Ungurian (2019), it appeared that the PRPA’s presumption of privilege was all but dead.  Most recently though, the Supreme Court has momentarily reversed course, breathing life back into this long-standing privilege with its ruling in Leadbitter (2020). This article seeks to examine the past, present, and uncertain future of the Pennsylvania Peer Review Protection Act.