Defense Digest

Superior Court Quashes Appeals From Discovery Orders, Rejecting Claims Of Privilege Under Peer Review Protection Act

In Harrision v. Hayes, 2005 PA Super 43 (Pa.Super. February 26, 2005), a medical malpractice case against Mercy Fitzgerald Hospital and two of the hospital's staff doctors, the Pennsylvania Superior Court quashed appeals from three trial court orders requiring the defendants to provide discovery over objections based on claims of privilege. Appellate review of the orders was sought under the "collateral order doctrine," which allows for review of an interlocutory order if: (1) the order is separable from and collateral to the main cause of action; (2) the order involves a right too important to be denied review; and, (3) the claim will be irreparably lost if review is postponed until final judgment. The issue was whether the orders called for the disclosure of information privileged under the Peer Review Protection Act ("PRPA") so as to contravene public policy and involve a right too important to be denied review.

The first trial court order allowed the plaintiff to depose a Mercy Fitzgerald designee with respect to the hospital's policies and procedures regarding the credentialing of staff physicians. The Superior Court ruled that the order did not concern information privileged under the PRPA because it pertained only to general information regarding an employer's procedures for selecting and retaining employees and it did not call for the production of private information regarding the reasons a decision was made as to the credentialing of any specific applicant.

The second trial court order required Mercy Fitzgerald to answer interrogatories and respond to requests for production regarding the defendant doctors' applications for staff appointments. The Superior Court again ruled that the order did not concern information privileged under the PRPA because it pertained only to the defendant doctors' applying for staff positions and it did not call for the disclosure of any information generated by a review committee in connection with evaluating the doctors for employment.

The third trial court order allowed the plaintiff to subpoena a non-party, Riddle Memorial Hospital, for documents regarding the defendant doctors' applications for staff privileges at that institution, as well as for the information considered and the decision made as to the granting of privileges at that institution. While the third order was broader than the second, covering information one would think was generated by a review committee in connection with evaluating the doctors, the Superior Court did not reach the issue of whether the order required the disclosure of information privileged under the PRPA. The court ruled that Fitzgerald Mercy and the defendant doctors lacked standing to take an appeal claiming privilege with respect to discovery sought from Riddle Memorial. The court held that any privilege to be asserted regarding the discovery belonged solely to Riddle Memorial and that a claim of privilege could be asserted only by Riddle Memorial.

Thus, it appears that the Superior Court will view the limitations in the PRPA in a straight-forward and narrow fashion, finding it not to apply outside its clear text.

*Michael is a shareholder in our Philadelphia, PA office. He can be reached at (215) 575-2595 or mpanichelli@mdwcg.com.