Documents created by nursing staff after receiving an incident report are safe from disclosure during medical malpractice discovery under the Peer Review Protection Act, an Allegheny County Court of Common Pleas judge has ruled.

Judge R. Stanton Wettick Jr. ruled in September that documents, including a chronology of events and a staff re-education plan resulting from it, created by two registered nurses at UPMC Mercy hospital in Pittsburgh after an alleged injury occurred at the hospital cannot be compelled for discovery.

“It’s a significant case that serves as a guidepost for how to analyze the peer-review process in the context of efforts by hospitals to deal with improvement that do not involve a committee,” said Richard J. Federowicz, of Dickie, McCamey & Chilcote in Pittsburgh, who represented the hospital. “If the true intent is to improve the quality of care, then it falls under peer review.”

The plaintiff in Scrima v. UPMC Mercy had argued that the documents are relevant hospital records, created by hospital staff, and, therefore, they are subject to discovery. However, Wettick found that the documents were created for peer-review purposes, and were therefore confidential.

“Under the Superior Court’s most recent interpretation of the scope of the Peer Review Protection Act, the purpose underlying the creation of the documents is the most relevant consideration,” Wettick said.

According to Wettick, registered nurse Tammy Vogel created a chronology of the care of John Scrima after she had received a copy of an incident report regarding a deep tissue injury he allegedly sustained. Wettick said Vogel reviewed medical records and discussed conditions of Scrima’s medical care with several care providers to create the chronology document. With the help of another registered nurse, Vogel then used the chronology to create a re-education document, Wettick said.

The plaintiffs sought the re-education plan, as well as the chronology outlining care provided to Scrima.

While the plaintiffs argued that the documents should be available for discovery, the defendants contended that the documents were created following the receipt of an incident report for the purpose of improving hospital care, and therefore they were protected.

According to Wettick, the purpose of the Peer Review Protection Act is to protect honest and potentially critical evaluation of one health care provider by another. He said the act requires strict confidentiality of the proceedings to ensure that the reviews are not affected by the fear of future legal repercussions.

However, the protection act provides that if documents are otherwise available from original sources, confidentiality does not apply.

According to Wettick, the “original sources exception” covers documents created by an employee of a hospital who has no responsibility for evaluating the quality of care and who did not prepare the documents at the request of a professional care provider evaluating the quality of the care as part of a peer review.

Wettick noted that when Vogel was asked why she performed the investigation, she testified that “it’s assumed that I review any event on my unit,” regardless of whether she had been directed by a supervisor. Wettick further noted that there was no claim that Vogel undertook the review for any reason other than peer review.

“In the present case, the nurse who prepared and reviewed the documents testified that each was generated for the purpose of evaluating the conduct of the medical staff and, if necessary, re-educating the staff regarding future procedures,” he said. “Even if some of the factual information contained within the subject documents is available through original sources, that alone does not render the documents discoverable.”

Wettick further said he relied on his 1987 ruling in O’Neill v. McKeesport Hospital, which found that documents, reports or recommendations prepared or issued by the Joint Commission on Accreditation of Hospitals dealing with anesthesia and surgery at a hospital could not be released during discovery in a wrongful-death medical malpractice case.

“The case law that has developed following O’Neill has given less weight to when the reports were created and by whom and more weight to the reason or purpose for their creation,” Wettick said.

Wettick did not address the threshold question of what constitutes the proceedings and records of a review committee, noting that the plaintiff did not raise the issue and the Superior Court has adopted a broad definition by using the terms “committee” and “individual” interchangeably.

Plaintiffs attorney Michael T. Collis, of Wilkes & McHugh in Pittsburgh, did not return a call for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the seven-page opinion in Scrima v. UPMC Mercy, PICS No. 13-2704, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •