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In the world of medicine, anything can happen, and patients sometimes experience unforeseen and unpleasant results. Our health care clients fairly routinely investigate and peer-review the quality of care administered at their health care facilities; particularly when they feel that something may have gone awry. The peer review allows them to discover if a mishap was the fault of the institution or one of its practitioners, whether improvements could be made to the way health care was administered. Or it may assure them that the best health care practicable was provided and the patient just saw an unfortunate result. These health care practitioners look to the benefit of the Pennsylvania Peer Review Protection Act (PRPA), so that they might conduct a peer review as openly, honestly and thoroughly as possible. The Pennsylvania Superior Court recently affirmed the importance of this protection in a decision. In the case of Piroli v. LoDico et al., the Superior Court held that the presence of a billing manager on a health care facility’s peer review committee does not destroy the PRPA’s protection from discovery of documents regarding that peer review. The PRPA, found at 63 P.S. sections 425.1-425.4, shields the proceedings and records of a review committee from discovery in any civil action against a health care provider concerning the matters that were the subject of evaluation by the review committee. Additionally, peer review committee members are protected from having to testify in a civil trial in an action against the health care provider about the events and discussions that transpired at the peer review meeting. The specific issue the Superior Court confronted was, “Does the presence on a health care facility’s peer review committee of individuals who are not health care providers make the protections of the Peer Review Protection Act inapplicable to its records?” The court ultimately decided in the negative. The factual and procedural scenario presented to the Superior Court was as follows. Piroli brought a wrongful death and survival action against Mark R. LoDico and his practice, Advanced Pain Medicine, P.C. The complaint alleged that LoDico performed a transforaminal epidural steroid injection on the plaintiff’s wife, Cathy, at Three Rivers Endoscopy Center (TRE), following which Cathy Piroli died. LoDico was not an owner, operator, shareholder or director of the licensed ambulatory care center, but was credentialed to perform procedures there. TRE was not named as a defendant in the action. TRE, after the death of the plaintiff’s wife, formed a committee to review the treatment of Piroli by LoDico. The committee included doctors, nurses, the TRE executive director and TRE’s billing manager. The committee also hired a physician expert on injections similar to the one administered by LoDico to produce a report based upon the records of the incident. The plaintiff filed a notice of intent to serve a subpoena on TRE to request documents regarding TRE’s investigation of the quality of care given to the plaintiff’s wife. The defendants objected to the subpoena, claiming that the material was not discoverable under the PRPA, but their objections were overruled by the trial court. TRE then filed objections to the subpoena, arguing the materials were protected by the PRPA. Piroli filed a motion to determine the sufficiency of the objections. In his motion, Piroli argued that the TRE investigation was not peer review under the PRPA because TRE’s billing manager was present at the committee meeting, and therefore the review fell outside the scope of PRPA because the billing manager was not a health care provider under the act. The trial court agreed with Piroli, stating a peer review committee under the PRPA may not have members who are not health care providers, and ordered TRE’s objections overruled. TRE and the defendants both appealed to the Superior Court. The Superior Court began its analysis with a statutory review of the relevant provisions of the PRPA. Under the PRPA, Section 425.4, the “proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee.” The court first looked at the act’s definition of “review organization.” The PRPA defines a review organization as “any committee engaging in peer review � for the purposes of (i) evaluating and improving the quality of health care rendered; reducing morbidity or mortality; or establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualifications of activities of its medical staff or applicants for admission thereto.” The court also examined the PRPA’s definition of “professional health care provider,” which is: “individuals 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: (i) a physician; � (viii) a registered or practical nurse; � (x) an administrator of a hospital, nursing or convalescent home or other health care facility; or (xi) a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility.” Lastly, the court stated that the PRPA defines “peer review” as: “the procedure for evaluation by professional health care providers of the quality and efficiency of services performed by other professional health care providers, including � ambulatory care review.” Under the statutory definitions, a billing manager is not within the definition of “health care provider.” The trial court surmised that because the TRE billing manager was not a health care provider but present at TRE’s meeting, that TRE’s meeting fell outside the scope of the PRPA. The Superior Court then reviewed the purpose of the PRPA as it has interpreted it through case law. The general purpose of the act, as stated by the Superior Court in Troescher v. Grody, is to maintain high quality medical standards for the protection of patients and the general public. The court then quoted Young v. Western Pennsylvania Hospital for the proposition that the medical profession is a self-policing profession. An important component of this self-regulation is the need for honest, comprehensive and critical peer review. Without the confidentiality protection, health care providers are much less likely to be forthright with information and opinions in the peer review process. This rationale is similar to that of any number of the privileges existing at law, such as the attorney-client privilege and doctor-patient privilege. As the Superior Court explained, TRE’s review meeting after the death of Piroli was conducted as follows. A committee was formed at TRE consisting of several physicians, nurses, TRE’s executive director and the billing manager. TRE also hired a physician specializing in pain medicine to review the records pertaining to the incident and generate a report for the committee, which he did. The pain specialist’s report was generated for the TRE committee only and stayed within the exclusive purview of the committee at all times � not even LoDico received a copy. The expert report and one other document would have been within the scope of the Plaintiff’s subpoena. According to the Superior Court, TRE’s peer review process was one “that the Legislature intended would be protected by the PRPA.” Although the billing manager was present, the goal of TRE’s meeting was to evaluate the quality of care given to Piroli at TRE � the purpose underlying the statute. The specialist’s report generated for the committee was also in furtherance of this goal. Additionally, the Superior Court noted that even if the billing manager was present at the meeting solely to evaluate the financial issues, that such intent would not run afoul of the purpose of the PRPA. The court stated that a goal of the PRPA is to establish guidelines to control health care costs. The Superior Court also noted that under Pennsylvania Health and Safety Code regulations, found at 28 Pa.Code Section 557 et seq., TRE, as an ambulatory care center, is required by law to conduct quality assurance and improvement programs, to evaluate patient care and to resolve identified health care problems. Under Pennsylvania law, such a program must include a peer review of performance by those with clinical privileges. The regulations require that both clinical staff and a “representative of administration” be present as such a meeting. The Superior Court noted that to require a facility like TRE to form two committees for virtually the same purpose would be “onerous” and “unnecessary.” In a footnote, the Superior Court raised the issue that “TRE itself may be considered a �professional health care provider’ under � the PRPA” because “it is �a corporation or other organization operating a � health care facility.’” Ultimately, the Superior Court reversed the order by the trial court against TRE and ordered the same conclusion from the appeal to the order raised by LoDico/Advanced. Vasilios J. Kalogredis is president and founder of Kalogredis Sansweet Dearden & Burke, a health care law firm, and Professional Practice Consulting Inc., a health care consulting firm, in Wayne, Pa. Among his areas of expertise are group practice arrangements, practice sales and mergers, doctor contract drafting and negotiation, tax and retirement planning for physicians, joint ventures, fraud and abuse matters, and evaluation of practice options for physicians. He can be contacted at 800-688-8314 or by e-mail at [email protected].

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