A Lackawanna County judge has ruled that a hospital's event reports relating to a medical malpractice case are not immune from discovery.

Lackawanna County Court of Common Pleas Judge Terrence R. Nealon Jr. denied a discovery appeal by Moses Taylor Hospital, saying that the documents did not fall under the protection of the Peer Review Protection Act, the Medical Care Availability and Reduction of Error Act or the federal Patient Safety and Quality Improvement Act.

"The hospital's 'Event Reporting' policy that was in effect at the time that the two event reports were prepared, and the language of the hospital's 'Event Report' form that was utilized, do not indicate that those reports were generated by or for a peer-review committee as part of a quality assurance assessment, and as such, they do not qualify for peer-review protection," Nealon said in his July 17 opinion.

Nealon said that for the same reason, the event reports weren't protected by either MCARE or the PSQIA.

The event reports "do not constitute 'patient safety work product' subject to a 'federal medical peer-review privilege' under the PSQIA in that there is no indication in the record that the reports were provided to a duly certified patient safety organization or a comparable patient safety committee," Nealon said.

The malpractice suit was instituted by plaintiff Anne Marie Venosh, claiming medical negligence against her orthopedic surgeon, Dr. Jack Henzes, his surgical assistant, Cindy S. Anderson, his orthopedic group, Scranton Orthopaedic Specialists, and Moses Taylor, according to Nealon. The suit revolves around a total left knee replacement surgery that Henzes performed on Venosh at Moses Taylor on June 11, 2009.

According to the opinion, Venosh alleged that Henzes was responsible for injuring her arteries and causing additional nerve damage because of negligence while operating, resulting in a vascular surgeon being summoned to repair the arterial injuries. Venosh claimed that she post-operatively experienced the "signs and symptoms of vascular and neurologic injury" and that she developed an occlusion of the left popliteal artery because of Henzes' alleged negligence, the opinion said.

The plaintiff alleged she continues to suffer from left foot drop, peroneal neuropathy, claudication and sensory and motor nerve dysfunction, despite having been returned to the operating room for exploratory surgery, arterial flap repairs and patch angioplasty.

During the course of discovery, Moses Taylor was served with a request by Venosh for any "incident or event reports" that in any way referenced the circumstances of the medical treatment she received. Hospital representatives acknowledged that the documents in question were on file but refused to oblige her request, claiming that the "information may be protected from discovery" by the PRPA as well as Section 311 of the MCARE Act, Nealon said.

According to Nealon, at the time of Venosh's surgery, the hospital's event reporting policy said its purpose was to "provide a record of the occurrence for legal purposes." However, the hospital was later acquired by Community Health Systems and the policy was revised, Nealon said. The new policy referred to patient safety and improvement.

Pointing to the new policy, the hospital argued the reports were protected by the peer-review process.

But Nealon, in an apparent case of first impression, ruled that the policy in effect when Venosh had her surgery should apply.

"The protocols described in the Commonwealth Health Policy were implemented years later and were not considered by Moses Taylor personnel when the two event reports were generated in June 2009," Nealon said. "As a matter of logic, the confidentiality to be accorded to those event reports, and Moses Taylor's expectations of confidentiality at the time that the event reports were prepared, may only be determined by Moses Taylor's event reporting policy, which was in effect in June 2009."

He said that because the earlier policy did not directly involve the patient safety improvement committee, it was not protected from discovery.

"Nothing contained in Moses Taylor's 'Event Report' form indicates that the report is generated in conjunction with an evaluation of medical care conducted by a peer-review committee," Nealon said.

The "primary participant in the 'Event Reporting' process under" the old policy was "the investigative analyst or risk manager, not the patient safety improvement and management committee or comparable peer-review committee," Nealon said. "The event reports were not generated by or for a peer-review committee in assessing the quality of the medical care that the treating health care providers furnished to Venosh."

Because of that, he said, the event reports weren't shielded from discovery by the PRPA. Nealon applied the same reasoning to Moses Taylor's arguments with regard to MCARE and the PSQIA.

Nealon cited that the event reports are not considered "peer review" or generated for the purpose of adhering to PRPA and MCARE guidelines regarding internal regulation and patient safety review within a medical practice.

He also noted that while the acts were enacted to facilitate self-policing in the health care industry and to maintain high professional standards in the medical practice for the protection of patients and the general public — referencing Dodson v. DeLeo and Piroli v. Lodico, respectively — they do not protect non-peer-review records from being admitted during the discovery process.

After the denial and dismissal of appeal was issued, Nealon ordered that Moses Taylor produce the two event reports within 20 days of the hearing.

Neither Venosh's attorney, Gary Solomon of Kornblau Kornblau & Solomon, nor Henzes' attorney, Eugene P. Feeney of Weber Gallagher Simpson Stapleton Fires & Newby, could be reached for comment.

P.J. D'Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com.

(Copies of the 27-page opinion in Venosh v. Henzes, PICS No. 13-2223, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •