Daniel Dolente

Key Points:

• To keep discussions, materials, reports and other documents generated for peer review purposes protected from discovery in litigation, consider organizing a committee within the confines of the hospital comprised of physicians, nurses and hospital administrators to perform peer review.
• Private medical practices meeting outside of the hospital context do not hold a privilege under the PRPA, whether or not the meeting addresses a peer review function.
• Peer review reports authored by individual health care providers outside the confines of a hospital’s committee may be subject to disclosure.
• Third-party vendors hired to perform peer review functions do not hold a privilege over the materials they generate. The health care provider who hired the third-party vendor to assist in their peer review process may still hold a privilege.

One of the most significant decisions to recently come out of Pennsylvania Supreme Court concerning the peer review privilege and confidential information protected from production in discovery was last summer’s Leadbitter opinion. See Leadbitter v. Keystone Anesthesia Consultants, Ltd., 256 A.3d 1164 (Pa. 2021). Leadbitter discretely held that: (1) a hospital’s credentialing committee qualified as a “review committee” under the terms of Pennsylvania’s Peer Review Protection Act (PRPA), so long as the credentialing committee was performing a peer review function; and (2) information from the National Practitioner’s Data Bank was confidential and protected from discovery under the federal Health Care Quality Improvement Act. More generally, however, the Leadbitter opinion suggested that the records, discussions, and proceedings of any hospital committee, regardless of whether it was classified as a “peer-review committee,” were protected from discovery so long as that hospital committee was performing a peer review function.

The question becomes, what materials are now protected under the PRPA after Leadbitter? Anticipating this question, the Leadbitter court advised Pennsylvania’s lower courts to review the PRPA’s definitions of “Peer Review” and “Professional Health Care Providers” when deciding whether certain documents, discussions and/or materials constitute information protected from discovery. See definitions in 63 P.S. § 425.4. Importantly, “Professional Health Care Provider” is a defined term under the PRPA and includes, among others, a physician, registered nurse, administrator of a health care facility or a corporation operating a health care facility. Leadbitter suggested that a “peer review function” could only be conducted by committees made up of “Professional Health Care Providers.”

Following Leadbitter, Judge Michael Baylson of the United States District Court for the Eastern District of Pennsylvania had the opportunity to comment on the scope of the PRPA’s protections in Lasheena Sipp-Lipscob v. Einstein Physicians Pennypack Pediatrics, 2020 WL 7353105 (E.D. Pa. Oct. 29, 2021). In Lasheena, the plaintiff brought suit against various defendants, including St. Christopher’s Hospital for Children and Teleradiology Services, P.C., a private group of radiologists who provided radiology services at St. Christopher’s Hospital. The plaintiff claimed that the defendants failed to diagnose testicular torsion, which resulted in the loss of a testicle. Through the course of discovery, it was determined that Erica Poletto, a radiologist, authored a report reviewing the quality of care rendered to the minor-patient. The defendants sought to protect the Poletto Report, as it became known, citing Leadbitter for the premise that it expanded the protections afforded by the PRPA, so long as the documents sought to be protected were created for a “peer review purpose.”

Judge Baylson, however, disagreed with this interpretation of Leadbitter. First, the practice group, Teleradiology Services, P.C., could not assert privilege over the report because it was not a “Professional Health Care Provider.” That is, a private medical practice does not qualify as a “Professional Health Care Provider” as defined by the PRPA, so any materials generated by the practice, even if during the performance of a peer review function, would not be protected from discovery. Second, St. Christopher’s Hospital could not assert the privilege because, while the hospital certainly qualified as a “Professional Health Care Provider,” discovery revealed that Dr. Poletto did not author the report as a part of any hospital committee. Rather, Judge Baylson indicated that because Dr. Poletto authored the report alone and did not provide it to any committee that was performing a peer review function at St. Christopher’s Hospital, Leadbitter’s interpretation of the PRPA did not apply.

In December 2021, the Pennsylvania Supreme Court placed further limitations on Leadbitter in its unpublished decision in Bousamra v. Excela Health, 2021 WL 6052296 (Pa. Super. Dec. 21, 2021). In Bousamra, Mercer Health and Benefits, LLC and American Medical Foundation for Peer Review and Education, Inc., the defendants, were hired to perform a study as to whether interventional cardiology procedures performed at Westmoreland Regional Hospital were medically necessary. Excela Health, the owner of Westmoreland, hired these companies. Through the course of discovery, the plaintiffs attempted to obtain the findings and reports of both Mercer and American. The defendants objected, arguing that Mercer and American acted as peer review committees hired by Excela, which was a “Professional Health Care Provider” by virtue of its status as a corporation operating a health care facility.

Ultimately, following the Supreme Court’s decision in Leadbitter, the Superior Court in Bousamra held that neither Mercer nor American were hospital committees that engaged in peer review activity as defined by the PRPA or Leadbitter because they were not “Professional Health Care Providers.” Essentially, under Bousamra’s reasoning, third-party vendors, such as Mercer and American, do not hold the privilege over the materials created. Significantly, however, the court suggested that Excela did hold a privilege over the documents created by Mercer and American because Excela qualifies as a “Professional Health Care Provider” who hired Mercer and American for the benefit of Excela’s peer review process. The documents generated by Mercer and American may be protected from disclosure “under the umbrella” of Excela. In Bousamra, however, the court indicated that Excela may still hold the privilege for materials produced by third-party vendors such as Mercer and American at the request of a protected entity such as Excela, but the issue was moot in this case because Excela waived the privilege.

As such, after Leadbitter, courts have acknowledged its holding, and held that any discussions or documents generated by a hospital committee meeting for the purposes of conducting peer review will remain confidential and protected from discovery, so long as that committee is comprised of Professional Health Care Providers, as defined by the PRPA.