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New Limitations on Pennsylvania’s Peer Review Protection Act

On Behalf of | Apr 9, 2018 | Firm News, Medical Malpractice Litigation

Hospitals that contract with outside physician groups for essential services need to reexamine their relationships with those entities as a result of a recent decision by the Pennsylvania Supreme Court in Reginelli v. Boggs, et al, No. 20 WAP 2016, 21 WAP 2016, 22 WAP 2016 and 23 WAP 2016 (Pa. March 27, 2018).  In a 4-3 decision, the Court held that Pennsylvania’s Peer Review Protection Act (PRPA), 63 P.S. §425.1 – 425.4, does not extend to reviews of the quality of care conducted by physician-members of a practice group on other physician-members of the group, because the practice group itself is not a “professional health care provider” as defined in the statute.  As a result, those reviews are subject to discovery in a malpractice case involving a member of the group.

Reginelli involved a factual scenario played out daily in hospitals across Pennsylvania.  Eleanor Reginelli arrived at Monongahela Valley Hospital (MVH) in the back of an ambulance, after complaining of gastric discomfort.  She came under the care of Dr. Boggs, who was on duty in MVH’s Emergency Department.  Dr. Boggs allegedly failed to diagnose an emergent, underlying heart problem.  Several days later, Mrs. Reginelli suffered a heart attack.

Like many other physicians manning the emergency departments in hospitals across Pennsylvania, Dr. Boggs was not a hospital employee, but an employee of Emergency Resource Management, Inc. (ERMI), an unaffiliated entity that provides physician staffing and management to hospital emergency departments, including MVH’s.  Dr. Brenda Walther, another ERMI employee, was Dr. Boggs’ supervisor and served as Medical Director of MVH’s Emergency Department.  Dr. Boggs, Dr. Walther and all other ERMI physicians who practiced there had to go through the same credentialing process as other physicians on MVH’s staff.

The dispute in Reginelli involved a “performance file” on Dr. Boggs that Dr. Walther had prepared as part of her supervisory duties.  At her deposition, Dr. Walther testified that it was her regular practice to review randomly selected charts of patients treated by Dr. Boggs and other physicians in order to evaluate the quality of care provided by MVH’s Emergency Department.  On learning of the existence of the “performance file,” the Reginellis filed a Motion to Compel its production.  MVH responded by asserting that the file was protected from discovery by the PRPA.

The trial court granted the Reginellis’ Motion to Compel, following which ERMI and Dr. Boggs filed a Motion for Protective Order, asserting their own entitlement to the protections afforded by the PRPA.  The case went to the Superior Court of Pennsylvania on appeal, which affirmed the decision of the lower court.  The Supreme Court granted the defendants’ Petition for Allowance of Appeal.

To make a long story short, the four Justice majority held that the PRPA did not extend to peer reviews conducted by ERMI, because ERMI was not a “professional health care provider” as defined in the Act.  According to the Majority, an entity seeking PRPA protection must be “approved, licensed, or otherwise regulated to practice or operate in the health care field under the Laws of the Commonwealth.”  63 P.S. §425.2.  And, while ERMI is comprised of hundreds of physicians who are without question “professional health care providers,” ERMI itself is essentially unlicensed and unregulated, and therefore not a “professional health care provider” in its own right.  Hence, reviews conducted by one physician-member of the practice group on the quality of care provided by another physician-member of the group, are not protected from discovery under the PRPA.

The Court also rejected MVH’s argument that a performance review by one member of a hospital’s medical staff (Dr. Walther) on another member of the hospital’s medical staff (Dr. Boggs) is precisely the kind of review that should qualify for protection under the PRPA.  The Court reasoned that because Dr. Walther was not a member of a “review committee” engaging in peer review, MVH was not entitled to claim the PRPA’s evidentiary privilege based on her work performed as a member of MVH’s medical staff.

Finally, the Majority rejected the argument that the privilege applied because that contract between MVH and ERMI included peer review among the services ERMI provided.  The Court found that the parties had failed to preserve this issue for review, and that in any case ERMI had indicated that Dr. Walther created and maintained Dr. Boggs’ performance file separate from the peer review activities conducted by MVH’s peer review committee.

In an unusually lengthy dissent, Justice Wecht, joint by Justice Todd and Chief Justice Saylor, disagreed with each of the Majority’s conclusions.  The dissenters were “reluctant to impute to the General Assembly the belief that effective peer review…can be achieved only when engaged in by two or more qualified professionals, so as to constitute a ‘committee.’ ”  The dissenters also argued that ERMI should be considered a “professional health care provider,” by virtue of having taken over the operation of MVH’s Emergency Department.  In their view, MVH, ERMI, and Drs. Walther and Boggs comprised a collective; responsible for ensuring that the care provided in the Emergency Department, and, specifically, the care provided by Dr. Boggs to Ms. Reginelli satisfied the standard of care.

Hospitals that rely on outside physician groups for essential services must now assume that quality of care reviews performed by and on members of the group will be open to discovery in a medical malpractice case involving a member of the practice group.  To achieve the PRPA’s laudable goal of fostering free and frank discussion of quality of care issues, reviews should be conducted at the facility level, by a committee organized for that purpose.  Could that “committee” be comprised exclusively of members of the practice group?  Nothing in the Reginelli decision suggests to the contrary, but the presence of non-member physicians would support the conclusion that it is truly a hospital-based committee.

Hospitals also should review their contracts with physician groups so as to include serving on a hospital-organized quality review committee responsible for reviewing the quality of services provided by members of the group.  Records of that committee should be designated and maintained as the exclusive property of the hospital.