Like the inevitable phoenix, the Pennsylvania Peer Review Act gives rise to significant appellate court cases from time to time. Most recently, the Pennsylvania Supreme Court in Reginelli v. Boggs, 181 A. 3d 293 (Pa. 2018), emphasized the narrow scope of the protection afforded by the PRPA. “The PRPA’s evidentiary privilege is reserved only for the ‘proceedings and documents of a review committee,’” 63 P.S. Section 425.4. Its narrow interpretation of the act calls into question many of the prior decisions in this area.
In Reginelli, Monongahela Valley Hospital (MVH) contracted with UPMC Emergency Medicine (ERMI) to provide staffing and administrative services for its emergency room. Both MVH and ERMI claim that the PRPA’s statutory evidentiary privilege protects from disclosure the performance file of Dr. Marcellus Boggs that had been prepared and maintained by Dr. Brenda Walther, who served as the director of MVH’s emergency department and was Boggs’ supervisor. Boggs and Walther were employees of ERMI. MVH did not contend that Walther was a member of the hospital’s peer review committee. Instead, MVH argued that Walther acted, ostensibly, as a “separate” peer review committee for the ERMI-supplied emergency department physicians. It was important that the performance review in question was not generated or maintained by MVH’s peer review committee.
Interpreting the text of the act, the Supreme Court ruled that the terms “committee” and “individual “ are not used interchangeably, disapproving of Troescher v. Grody, 869 A.2d 1014, 1022 (Pa. Super. 2005) and its progeny Piroli v. Logidco, 909 A. 2d 846 (Pa. Super. 2006), in that regard. The court stated: “although ‘individuals reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto,’ 63 P.S. Section 425.2, are defined as a type of ‘review organization,’ such individuals are not ‘review committees’ entitled to claim the PRPA’s evidentiary privilege in its Section 425.4. For these reasons, while it is possible that Walther, as an individual, may qualify as a ‘review organization’ under the second sentence of the PRPA’s definition of that term, the PRPA does not extend its grant of the evidentiary privilege to that category of “review organization”’ (i.e., credentials review). Individuals conducting peer review are not defined as a “review committee” under the PRPA, even if they qualify as another type of ‘review organization’ As a result, we must conclude that Walther, as an individual, was not a ‘review committee’ engaging in peer review, and thus MVH is not entitled to claim the PRPA’s evidentiary privilege based upon her work as a member of its medical staff.”
Thus, the court drew a distinction between review committees and review organizations.
Review of a physician’s credentials for purposes of membership (or continued membership) on a hospital’s medical staff is markedly different from reviewing the “quality and efficiency of service ordered or performed” by a physician when treating patients … although “individuals reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto,” 63 P.S. Section 425.3, are defined as a type of “review organization,” such individuals are not peer “review committees” entitled to claim the PFPA’s evidentiary privilege in its section 425.4.
Significantly, the Supreme Court indicated its disapproval of prior Superior Court decisions to the extent that they hold that credentialing review is entitled to protection from disclosure under the PRPA’s evidentiary privilege, citing Troescher v. Grody, 869 A.2d 1014, 1022 (Pa. Super. 2005); Dodson v. DeLeo, 872 A.2d 1237, 1243 (Pa. Super. 2005).
Further, the court held that EMRI was not a” professional health care provider” under the PRPA’s definition of that term and was not entitled to the protections of the PRPA. The court explained: “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. While it is true that a plurality of this court in McClellan identified the provision of health care services as one requirement for a professional health care provider, McClellan, 686 A.2d at 806, 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.”
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. 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.
The court wisely has narrowed the scope of the peer review privilege. Not all “review organizations” are entitled to assert the peer review privilege. Credentialing review does not receive protection from disclosure under the Peer Review Act.
I have often suggested both to the legislature and to the Pennsylvania Patient Safety Authority that it is time for secret peer review to go the way of the dinosaur. Transparency, accountability and responsibility should be patient entitlements. As I have told numerous hospital heads, one of the biggest reasons why patients go to lawyers is to get answers that the hospital and healthcare system will not supply. We should have state-qualified peer review with legitimate root cause analysis. Those standards would be intended to protect the patient consumer. Once peer review is performed, the results should be available to the patient or the patient’s family so that those who are harmed by the hospital health care system will learn the truth about their care. Any number of studies have demonstrated that informed patients help to build a better and safer health care system.
Cliff Rieders, of Rieders, Travis, Humphrey, Waters, & Dorhmann, is a board-certified trial advocate in Williamsport, past president of the Pennsylvania Trial Lawyers Association and a past member of the Pennsylvania Patient Safety Authority. Contact him at email@example.com.