Medical Malpractice

As scientific and medical advancements have accelerated, so has the complexity of medical decision-making, exposing a need for standardization in the United States. In 1952, the Joint Commission created the mandatory clinical peer review process. Often referred to as “medical peer review,” it is the process by which health care providers establish and maintain reliable standards of quality in patient care.

Clinical peer review entails periodic meetings of professional health care providers to evaluate the quality and efficiency of the services performed by other professional health care providers within the same hospital or health system. Today, countries with reputations for the most exceptional health care all mandate clinical peer review processes. In the United States, the clinical peer review process is so trusted to maintain and improve the quality of health care that every state has enacted a statute preventing certain information and documents discussed in peer review meetings from disclosure in litigation.

In 1974, the Pennsylvania legislature enacted the Peer Review Protection Act (PRPA) to provide an evidentiary privilege to protect the “proceedings and documents of a review committee,” conducting peer review activities by professional health care providers, in conformity with its provisions. Reginelli v. Boggs, 181 A.3d 293, 296 (Pa. 2018). The PRPA’s evidentiary privilege is set forth in Section 425.4:

The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof.

Between 2018 and 2021, courts both narrowed and broadened the application of this privilege.

Narrowing: Only “Peer Review Committees” Can Assert the Privilege
In Reginelli v. Boggs, the Pennsylvania Supreme Court held the defendants were not entitled to this privilege primarily because the physician’s employer was not a “professional health care provider” covered under the PRPA. UPMC Emergency Medicine, Inc. (ERMI) staffed the physician to Monongahela Valley Hospital (MVH) and was therefore the physician’s employer. The court held ERMI was not a “professional health care provider” because it was not regulated and licensed to practice medicine. The PRPA defines the term “professional health care providers” as “individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth.” Because the PRPA’s language explicitly states 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- to benefit from the privilege—and the employer at issue was not—the court found the PRPA privilege did not apply.

Furthermore, the court found each of the defendants could only be construed as mere “review organizations” that engaged only in a process of reviewing professional qualifications credentialing). Therefore, they were not “review committees” under the PRPA. The PRPA defines a “review organization” as “any committee engaging in peer review....” Although the language of Section 425.4 suggests it pertains to review organizations, the substantive text sets forth confidentiality mandates and testimonial privileges relating to the work and records of review committees. Since the PRPA privilege does not explicitly extend to any review organization that merely conducts credentialing review, the defendants did not qualify for the privilege. Here, the court determined that MVH’s physician merely reviewed the credentials of hospital staff and did not engage in review of the quality and efficiency of the services staff performed.

Narrowing: Credentialing Files are Not Protected
In Estate of Krappa v. Lyons, the Pennsylvania Superior Court interpreted the PRPA and Reginelli to mean a credentialing file will not be entitled to the PRPA’s evidentiary privilege if it (1) consists entirely of credentialing materials, and (2) was maintained by the hospital’s “credentialing committee.” In Krappa, a patient’s estate brought suit alleging a delay in diagnosis after the patient had died of cancer. During discovery, the estate sought unredacted copies of the medical center’s files concerning two physicians who treated the patient. As discussed in Reginelli, the Superior Court determined credentialing files generated and maintained by a hospital’s credentialing committee are not protected under the PRPA because a credentialing committee does not qualify as a “review committee” engaging in peer review.

Narrowing: Event Reports, Root-Cause Analyses are Not Protected
In Ungurian v. Beyzman, the Pennsylvania Superior Court articulated that the PRPA privilege does not encompass event reports and root-cause analyses where there is no indication those documents were generated “exclusively for a PRPA 'review committee.' This was a case where the patient’s mother brought a medical malpractice action against physicians, hospital staff, clinics, corporations, and the hospital itself alleging their collective negligence caused the total and permanent incapacity of her child who had undergone a cystoscopy at the hospital. The mother-plaintiff sought to compel various documents, including event reports and root cause analysis, and the defendants appealed arguing protections pursuant to the federal Patient Safety and Quality Improvement Act of 2005 and PRPA. Consistent with the Superior Court’s reasoning in Lyons, the court reasoned that, because neither event reports nor root-cause analyses were generated in the course of peer review and merely constituted business records of the hospital, these documents were not entitled to the privilege.

Broadening: Privilege Extends to Peer Review as a Function, not just a “Peer Review Committee”
In Leadbitter v. Keystone Anesthesia Consultants, Ltd., the Pennsylvania Supreme Court expanded the potential applicability of the PRPA’s evidentiary privilege in contrast to its opinion in Reginelli where, consistent with the plain language of § 425.3-425.4, the court found the title or name of the body conducting the review was determinative of whether the privilege would apply. Here, however, the Leadbitter court articulated that it is instead the actual function or “activity” of a review organization/committee which determines whether the privilege applies. In this case, a physician applied to be appointed to the medical staff of St. Clair Hospital and for orthopedic surgery clinical privileges. After performing surgery on a patient, the patient suffered a series of strokes and filed a medical malpractice suit against the hospital, seeking that they produce documents relating to the physician’s credentials, as they claimed the physician lacked expertise.

The hospital denied the requests, arguing the PRPA privilege applied because the work of their credentials committee was multifaceted and included peer review. Specifically, the hospital argued that this work included both privileging and credentialing and that, because privileging is covered by the PRPA as a peer review activity, the hospital was entitled to statutory protection. It pointed out—and the Leadbitter court acknowledged—that Reginelli’s reasoning was limited to credentialing review for purposes of appointment to a hospital’s medical staff. The Leadbitter court agreed that privileging is distinct from credentialing as it involves giving the physician permission to treat patients at the hospital, and not merely to exercise political rights in relation to staff and committee meetings. As such, it agreed with the proposition that a credentials committee is entitled to the PRPA’s protections to the extent it performs a peer-review function—in this case, privileging. In short, because of Leadbitter, the PRPA’s evidentiary privilege extends to those who engage in “peer review activities” as the actual function of the committee—not the title—determines whether the privilege applies.

Narrowing: Private Physician Practice Groups Cannot Assert the Privilege
In 2021, the Eastern District considered whether a report authored by a radiologist who reviewed care provided at a hospital was protected under PRPA. In Lasheena Sipp Lipscob v. Einstein Physicians Pennypack Pediatrics, the plaintiff sued both a hospital and a private radiology practice that provided radiology services to the hospital, arguing the defendants failed to diagnose testicular torsion resulting in the loss of a testicle. A report generated by a radiologist employed by the practice was identified in discovery which reviewed the quality of care rendered to the plaintiff’s minor-patient. The defendants argued this report was protected under the PRPA because it was created for a “peer review purpose.” The court disagreed, reasoning first that the radiology group (i.e., a private medical practice) was not a “professional healthcare provider” within the meaning of the PRPA and therefore not eligible for the evidentiary privilege. The Pennsylvania Superior Court ruled consistent with this conclusion in 2021 in the non-precedential decision of Bousamra v. Excela Health.

Second, while the hospital defendant was clearly a “professional health care provider” under the PRPA, it too could not assert the evidentiary privilege over this report because the authoring radiologist did not generate the report as part of any hospital “committee” as contemplated under the Act. In other words, because the report was not generated for or provided to any hospital “committee” performing a “peer review function,” the PRPA privilege was not extended.

Key Takeaways
In enacting the Peer Review Protection Act, the Pennsylvania legislature recognized that candid and rigorous clinical peer review is essential to upholding the quality of patient care. Accordingly, the evolving body of case law interpreting the PRPA’s evidentiary privilege carries substantial implications for health care providers and institutions, particularly in the context of medical malpractice litigation. To preserve the confidentiality afforded by the PRPA, documents assessing the quality of care should be created by or for a hospital committee engaged in peer review functions, such as privileging. As with any legal privilege, the integrity of protection depends on strict adherence to confidentiality—such materials must not be disclosed to unauthorized parties, whether internal or external to the institution. 

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