by Mark Bauman | Mar 29, 2023 | Legal News, Other News
In an opinion authored by the Honorable Alice Beck Dubow, the Superior Court of Pennsylvania held that the Peer Review Protection Act (PRPA)[1] did not protect disclosure of professional opinions and performance evaluations of a surgeon which were obtained by a hospital credentialing committee from other physicians and which were reviewed before granting hospital privileges.
In Leadbitter v. Keystone Anesthesia Consultants, LTD, et al.,[2] Dr. Carmen Petraglia applied for an appointment to the medical staff of St. Clair Hospital. In considering Dr. Petraglia’s application, the hospital’s credentialing committee reviewed documents including: professional opinions relating to Dr. Petraglia’s competence; Professional Peer Review Reference and Competency Evaluation, which contained evaluation of Dr. Petraglia’s performance by other physicians; Ongoing Professional Practice Evaluation of St. Clair Hospital Summary Report, which contained performance related data that St. Clair Hospital compiled; and responses to St. Clair’s inquiry to the National Practitioner Data Bank. Following review, the credentialing committee recommended that St. Clair Hospital grant clinical privileges to Dr. Petraglia, and Dr. Petraglia accepted the appointment.
After accepting his appointment, Dr. Petraglia examined Plaintiff, James Leadbitter, and recommended spinal surgery. Dr. Petraglia performed two spinal surgeries on Mr. Leadbitter at St. Clair Hospital. Following the surgeries, Mr. Leadbitter suffered a series of strokes resulting in brain damage, blindness, motor weakness, and impairment of his extremities, which the Leadbitter’s alleged was the result of the negligence of the defendants.
After filing a Complaint, Plaintiffs served St. Clair Hospital with discovery requests seeking, “the complete credentialing and/or privileging file for Petraglia.” St. Clair Hospital responded by producing only those documents that it determined were discoverable and removing/redacting the portions it claimed were privileged. Following a second request for production of documents, St. Clair Hospital produced another tranche of documents but continued to assert that some portions of the credentialing file were privileged.
The Leadbitter’s filed a Motion to Compel the production of Dr. Petraglia’s unredacted credentialing file; in support they argued that the Pennsylvania Supreme Court’s decision in Reginelli v. Boggs[3] entitled them to review the complete unredacted credentialing file. In response, St. Clair Hospital argued that the PRPA shielded it from producing the requested documents. Following a hearing, the trial court, relying on Reginelli, granted Plaintiffs’ motion and Ordered St. Clair Hospital to produce Dr. Petraglia’s unredacted credentialing file. St. Clair Hospital filed a timely appeal.
On appeal, St. Clair argued that the professional opinions and performance evaluations of Dr. Petraglia that the credentialing committee obtained from other physicians were protected by the PRPA because they were peer review documents. The PRPA defines “peer review” as “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers.”[4] The Superior Court explained that since “professional health care providers”—other physicians—prepared the documents in questions, and because the documents evaluated the “quality and efficiency of services ordered or performed” by Dr. Petraglia, the documents met the statutory definition of “peer review” documents.
The Superior Court then analyzed the the PRPA in light of the Supreme Court’s holding in Reginelli, which interpreted the protection provided by the PRPA in terms of, inter alia, the entity that holds the peer review documents. In particular, the evidentiary privilege applies only to the peer review documents of a “review committee” and not of a “review organization.” A “review committee” is defined as “any committee engaging in peer review” and a “review organization” is defined as “any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.” In Reginelli, the Supreme Court focused on the fact that the peer review documents at issue were part of a file created and maintained by an “individual.” Since an “individual” reviewed the documents, and the PRPA includes “individuals” in its definition of a “review organization”, the PRPA privilege did not apply to those professional evaluations. Further, the Superior Court has explained that the PRPA does not shield from disclosure, evaluations that a credentialing committee generates.[5]
In Leadbitter the Superior Court explained that in order to determine the applicability of the PRPA privilege, it must be determined whether a “review organization” or a “review committee” reviewed the professional evaluations of Dr. Petraglia. Since St. Clair Hospital’s credentialing committee is a committee that reviewed the professional qualifications and activities of Dr. Petraglia following his application for hospital privileges at St. Clair Hospital, the credentialing committee was a “review organization” and therefore the PRPA privilege did not apply to the documents at issue. The Superior Court in Leadbitter, also pointed to the reasoning set forth in Reginelli, that “review of a physician’s credentials for purpose of membership on a hospital’s medical staff is markedly different from reviewing the quality and efficiency of services ordered or performed by a physician when treating patients.”
The Superior Court in Leadbitter, noted that it shared the observation of the dissent in Reginelli, that the distinction between a “review organization” and a “review committee” will result in the chilling effect upon free and frank discussion aimed to ensure and improve an appropriate quality of care that the PRPA strives to vitiate. On September 15, 2020 The Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal of the Superior Court’s decision to determine if the holding conflicted with the PRPA and misapplied Reginelli, by ordering the production of acknowledged “peer review documents” solely because they were maintained in a physicians’ credentialing file.
[1] 63 P.S. § 425.1, et seq.
[2] Leadbitter v. Keystone Anesthesia Consultants, LTD, et al., 229 A.3d 292 (Pa. Super. 2020).
[3] Reginelli v. Boggs, 645 Pa. 470 (2018).
[4] 63 P.S. § 425.2.
[5] Estate of Krappa v. Lyons, 211 A.3d 869 (Pa. Super 2019).
by Mark Bauman | Mar 28, 2023 | Legal News, Other News
In an opinion authored by the Honorable Alice Dubow, the Superior Court of Pennsylvania recently ruled that a myriad of documents were not protected by the privileges provided by the Patient Safety Quality Improvement Act (“PSQIA”) and the Peer Review Protection Act (“PRPA”).
In Ungurian v. Beyzman, et al.[1], Wilkes-Barre Hospital Company, LLC (“Hospital”) appealed to the Superior Court from multiple Orders entered by the trial court compelling production of documents that the Hospital alleged were privileged by PSQIA and PRPA. The matter arose from a medical malpractice case brought by Susan Ungurian who alleged that the negligence of the Defendants caused permanent incapacity to her son, Jason, following a cystoscopy.
In discovery, Ungurian propounded written discovery requests on all parties. The Hospital served responses and objections asserting that the documents were privileged pursuant to, inter alia, PSQIA and PRPA. The Hospital served Ungurian with a privilege log listing the documents being withheld, including: an event report authored by a CNA relating to “surgery, treatment, test, invasive procedure”; the Serious Safety Event Rating Meeting Summary prepared by a RN; meeting minutes from the Patient Safety Committee prepared by the director of patient safety services and the risk coordinator; a Root Cause Analysis Report; and the Hospital’s Quality Improvement Staff Peer Review.
Ungurian filed a Motion to Strike the Objections and Compel the Hospital’s responses on the basis that the Hospital failed to establish that PSQIA and PRPA privileges applied to the documents. The Hospital argued that the Event Report and Root Cause Analysis were patient safety work product protected by the PSQIA. Further, the Hospital asserted that the PRPA Privilege protected the Event Report, Root Cause Analysis, Quality Improvement Peer Review Meeting minutes, the Serious Safety Event Rating Meeting, the Patient Safety Committee Meeting minutes, and credential files. The Hospital supported its privilege claims with an affidavit from the Director of Patient Safety Services, which gave a general description of each document including the author and date of the meeting.
The trial court held a hearing on Ungurian’s Motion and issued an Order directing the Hospital to produce the Event Report, Root Cause Analysis, and the Quality Improvement Peer Review. Subsequently, the trial court amended the Order and directed the Hospital to produce Dr. Beyzman’s and CRNA Burry’s credentialing file as well as the National Practitioner Data Bank Query Response (Dr. Beyzman was involved in the care at issue, CRNA Burry authored the event report listed on the Hospital’s privilege log).
Ungurian then filed a Motion to Compel the Production of the Serious Safety Event Rating Meeting Summary and the Patient Safety Committee Meeting minutes. Following a hearing, the Court issued an Order directing the Hospital to produce these documents.
Thereafter, Ungurian filed an Emergency Motion to Strike Objections and Compel Discovery Responses from Defendants, Andrew Beyzman, M.D.; Robert Burry, CRNA; North American Partners in Anesthesia (Pennsylvania), LLC; and North American Partners in Anesthesia, LLP (“NAPA”). Ungurian averred that through supplemental discovery responses received from NAPA, she learned that NAPA was also in possession of the Quality Improvement Peer Review. At the hearing on said motion, Ungurian argued that the PRPA did not protect the Quality Improvement Peer Review because it was prepared by Dr Anderson who was not a licensed medical professional. NAPA and the Hospital argued that the privilege applied because Dr. Anderson conducted the review at the Hospital’s request. At the hearing, the parties also discussed the credentialing files of Hospital employees involved in the care of Jason, as well as correspondence between the Hospital’s Chief Quality Officer and the medical director for the Hospital’s insurer about the substance of the Root Cause Analysis. The Hospital argued that the insured should be freely able to discuss certain events with its insurer in an effort to maintain coverage. With respect to the credential filing, the Hospital asserted that it withheld production because the files were either peer review protected or irrelevant.
The trial court issued an Order directing NAPA to produce a complete copy of the Quality Improvement Peer Review on the basis that the PRPA privilege did not apply because Dr. Anderson was not licensed to practice medicine in Pennsylvania when he prepared the Quality Improvement Peer Review, because Dr. Anderson was a managing partner NAPA, because the contract between the Hospital and NAPA did not provide for the provision of peer review services, and because NAPA, an original source, also possessed the Quality Improvement Peer Review. The court entered a separate order directing the Hospital to produce the requested credentialing files, and any National Practitioner Data Bank Query Responses. The Hospital filed appeals from each of the above discussed orders.
Regarding the Event Report and Root Cause Analysis the Hospital argued the trial court erred when it determined PSQIA did not privilege the documents at issue. PSQIA provides that patient safety work product shall be privileged. The Act defines patient safety work product as “any data, reports, memoranda, analyses (such as root cause analyses), or written or oral statements which are assembled or developed by a provider for reporting to a patient safety organization (“PSO”) and are reported to a PSO.”[2] Patient safety work product excludes “information that is collected or maintained or developed separately, or exists separately from a patient safety evaluation system.”[3] “Such separate information or a copy thereof reported to a PSO shall not by reason of its reporting be considered patient safety work product.” Further, the party asserting the privilege bears the burden of producing facts establishing proper invocation of the privilege.[4] The Superior Court agreed with the trial court that PSQIA required that in order to be considered patient safety work product, the Hospital had the burden of initially producing sufficient facts to show that it properly invoke the privilege. i.e., the Hospital needed to allege that it prepared the Event Report for reporting to a PSO and that it actually reported them to a PSO. As the Hospital did not so allege, it did not meet its burden to establish the Event Report was entitled to protection under PSQIA’s patient safety work product privilege.
With respect to the Root Cause Analysis, PSQIA imposed a burden on the Hospital to proffer evidence that it developed the Root Cause Analysis for the purpose of reporting to a PSO. The Hospital did not proffer such evidence and admitted the Root Cause Analysis existed outside of the Hospital’s patient safety evaluation system, thereby defeating its privilege claim.
Further, the Hospital argued that the trial court erred in compelling the production of the Event Report as the PRPA peer review privilege protected it from producing the Event Report since the Hospital is a “professional healthcare provider” under the PRPA and the Event Report was not in the nature of an “incident report”. The PRPA provides an evidentiary privilege for peer review documents and provides in relevant part, “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 healthcare provider arising out of the matters which are the subject of evaluation and review.”[5] The PRPA defines peer review as “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers.”[6]The PRPA defines professional health care provider as “individuals who are approved, licensed, or otherwise regulated to practice or operate in the healthcare field under the laws of the Commonwealth.”[7] Under the PRPA peer review organization is defined as “any committee engaged in peer review to gather and review information relating to the care and treatment of patients for the purposes of evaluating and improving the quality of health care rendered, reducing morbidity and mortality, or establishing and enforcing guidelines designed to keep within reasonable bounds the cost of healthcare.”[8] The Superior Court explained that hospital incident and event reports are business records of a hospital and not the records of a peer review committee[9]. Incident reports are not entitled to the confidentiality safeguards of the PRPA. The PRPA does not protect documents available from other sources or documents that have been shared outside of the peer review committee[10]. The Hospital did not generate the Event Report during the course of peer review, instead it was produced in accordance with the Hospital’s Event Reporting Policy. Further, the Hospital’s failure to identify the members of its peer review committee was fatal to its claim that PRPA privilege applied.
The Hospital claimed that the trial court erred in determining the Root Cause Analysis was not privileged simply because the Hospital did not provide a list of all individuals involved in the production of the Root Cause Analysis. The Hospital’s Affidavit did not identify the members of the Root Cause Analysis Committee. Since the PRPA privilege applies only to observations of and materials produced during an evaluation by “professional health care providers”, the Superior Court concluded that the Hospital’s failure to identify the members of the Root Cause Analysis Committee as “professional healthcare providers” was fatal to its privilege claim.
Additionally, the Hospital asserted the trial court erred in compelling NAPA to produce the Quality Improvement Medical Staff Peer Review performed by Dr. Anderson. For PRPA privilege to apply, the peer review must be conducted by a “professional healthcare provider”, which includes individuals who are approved, licensed or otherwise regulated to practice or operate in the healthcare field under the laws of the Commonwealth. At the time Dr. Anderson conducted the Quality Improvement Medical Staff Peer Review, his medical license in Pennsylvania had expired. The Superior Court noted that neither Dr. Anderson nor NAPA were “professional healthcare providers” under the PRPA and the Hospital did not proffer anything more than bald allegations to support its claim that Dr. Anderson performed the peer review at its request.
Regarding the summary of the Serious Safety Rating Meeting, in its Affidavit, the Hospital asserted only that the summary was prepared to summarize the meeting of the Committee, that the Committee met for the purpose of reviewing and assessing the quality of patient care at the Hospital, and that the Committee summary was specifically designated as privileged peer review information. The Superior Court explained that without more, the bald claims in the Hospital’s Affidavit did not satisfy the evidentiary burden of proving the applicability of the PRPA privilege. The Hospital’s unilateral assertion that the meeting summary was privileged peer review information does not, without more, entitle the document to protection under the PRPA.
Further the minutes from the Patient Safety Committee Meeting were not privileged. The Hospital averred in its Affidavit that the Patient Safety Committee had membership representative of both the hospital and the community it serves. Since the committee included members of the community, it was not exclusively comprised of “professional healthcare providers.” Therefore, the Hospital failed to satisfy its burden in proving the PRPA privilege applied to the minutes of the Patient Safety Committee Meeting.
Finally, the Hospital argued that the trial court erred in compelling the production of the complete credentialing files of Dr. Beyzman and CRNA Burry. The Hospital claimed that the doctor’s performance reviews were privileged under the PRPA as its credential committee fell within the PRPA’s definition of qualifying “review committee” as opposed to a non-qualifying “review organization.” The Hospital also argued that competency and performance evaluations of staff members who participated in the care at issue were privileged because they evaluated the quality and efficiency of services performed. The Superior Court explained that credentialing review is not entitled to protection from disclosure under the PRPA[11]. The Superior Court reasoned that credentialing committees are not review committees under the PRPA whose materials are entitled to its statutory privilege; therefore, the credentialing files were not entitled to protection under the PRPA.
[1] 2020 WL 2029286; 2020 PA Super 105 (April 28, 2020).
[2] 42 U.S.C. § 299b-21(7)(A)(i)(l).
[3] 42 U.S.C. § 299b-21(7)(B)(ii).
[4] Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372 (Pa. Super. 2012).
[5] 63 P.S. § 425.3.
[6] 63 P.S. § 425.2.
[7] 63 P.S. § 425.2(1).
[8] 63 P.S. § 425.2.
[9] Atkins v. Pottstown Memorial Medical Center, 634 A.2d 258 (Pa. Super. 1993).
[10] 63 P.S. § 425.4.
[11] Reginelli v. Boggs, 181 A.3d 293 (PA. 2018).
by Mark Bauman | Mar 27, 2023 | Legal News, Other News
In an opinion authored by Justice Todd, the Supreme Court of Pennsylvania recently vacated the Superior Court’s grant of a new trial based on the trial court’s failure to personally observe the demeanor of prospective jurors who were challenged for-cause during voir dire [1]. The Pennsylvania Supreme Court held that Appellees waived their argument and therefore the Superior Court’s decision was improper.
In Trigg v. Children’s Hospital of Pittsburgh of UPMC, J-85-2019 (PA 2020), J.T., a minor, was afflicted with craniosynostosis, a medical condition resulting during an infant’s growth and development when the skull prematurely closes and exerts increased pressure on the brain. J.T. underwent surgery at Children’s Hospital of Pittsburgh (“Hospital”) to correct the condition. Following surgery, during his recovery at the Hospital, J.T. fell out of bed and suffered damage to the surgically repaired cranial area, necessitating immediate ameliorative surgery. Appellees filed suit against the Hospital alleging that the Hospital was negligent in placing J.T. in an adult size bed due to the large spaces between the vertical and side rails, which Appellees allege enabled J.T.’s fall.
The case was initially brought in the Allegheny County Court of Common Pleas. In Allegheny County, all members of the prospective juror pool are required to fill out a written questionnaire wherein they provide, inter alia, general personal information such as age, occupation, family members, prior involvement in civil/criminal cases, and relationships with individuals employed by the court system, or by insurance or health care professions.
Further, in Allegheny County, although available to rule on objections, neither the calendar control judge, nor the trial judge is ordinarily present during the voir dire process. The voir dire process is normally managed by a court clerk. Under Allegheny County Local Rules, in medical malpractice cases, a group of prospective jurors is summoned to the jury assignment room and a court clerk asks the group of prospective jurors general questions enumerated in the rules regarding whether service constitutes a hardship, whether they have a social, business, or professional contract with the attorneys in the case, and whether they have social, business, professional, or employment relationships with any of the parties in the case. After the clerk describes the nature of the case, i.e. medical malpractice, and furnishes brief background details about the case, the attorneys for the plaintiff and the defendants give their respective voir dire statements indicating what they believe the evidence will show at trial. At the conclusions of the statements, the clerk asks the jurors whether they have any knowledge about the case. The witnesses in the case are then introduced by the attorneys and the clerk again inquires of the jurors whether they have any personal or familial association with those witnesses. Once the group questioning is complete, the clerk questions each of the prospective jurors individually. After the standard questions have been asked of each individual juror, the court clerk asks each individual juror the additional voir dire questions propounded by the parties. Once this process is complete, counsel for either party may ask reasonable follow up question to individual jurors.
In Trigg, 40 perspective jurors were summoned, and voir dire was conducted as described above. Of relevance, when prospective juror 29 was asked whether she had any feelings about medical malpractice cases which would cause her to favor one party over the other, she answered that her sister and brother-in-law were doctors, and her mother-in-law was a nurse. The clerk followed up by asking whether the juror could be fair and impartial, the perspective juror replied, “I would like to think I would be fair and impartial, but I mean, it just depends on the facts and everything presented.” The juror stated she could follow the judge’s instructions in arriving at a verdict and determining damages and that she could decide the case based on the facts and the law. Appellees’ counsel further questioned perspective juror 29 about whether in a close call she would tend to favor the medical profession. The juror responded, “probably yes”, on the basis that she had seen what those in the medical profession go through and how much they care about their patients, and she noted “I know they would never do anything wrong.” Prospective juror 29 was subject to follow-up questioning by the court clerk in which she affirmed that she would be able to listen to the law as presented by the judge and that her family members’ professions would not influence her judgment such that she could not render a fair and impartial verdict.
At the conclusion of voir dire, Appellees’ counsel challenged prospective juror number 29 and two others for cause. The parties went to the chambers of the calendar control judge to discuss the for cause challenges. The judge read the transcript of the questioning of the prospective jurors. After evaluating the transcripts and hearing arguments by the parties, the calendar control judge denied Appellees’ motion to strike the jurors in question for-cause. Appellees then used three of their four allotted preemptory challenges to exclude these jurors. At the end of the trial, the jury returned a verdict in the Hospital’s favor. Appellees filed a post-trial motion alleging, inter alia, that the calendar control judge erred in denying their for-cause challenges. Specifically, Appellees argued that there was no opportunity for the trial court to observe the demeanor or tenor of the challenged venireman’s answers. The motion was denied on the basis that there was no record that Appellees requested the judge view the prospective jurors’ demeanor before ruling on the Motions to Strike For-Cause.
Appellees filed an appeal to the Superior Court raising issues which included that the trial court erred by not excluding the three prospective jurors at issue for bias and prejudice and by not observing the demeanor and tenor of the prospective jurors before denying the motion to strike them. Appellees argued that because the trial court erred in refusing to exclude the jurors, they were forced to use three of their four allotted preemptory challenges, causing them prejudice. The Superior Court reversed the trial court’s opinion. In its reversal, the Superior Court focused its analysis on the trial court’s denial of Appellees’ for-cause challenge to prospective juror number 29, and to the trial court’s lack of personal observation of the jurors’ demeanor during voir dire. The Superior Court pointed to Shinal v. Toms [2], which endorsed a highly deferential standard of review of a trial court’s ruling on a for-cause challenge to a particular juror because there is a great significance attached to the fact that the trial court has the opportunity to personally observe the juror during the voir dire process. The Superior Court noted that judges in Allegheny County never view the demeanor of prospective jurors unless counsel requests the juror appear before the judge to recreate the initial voir dire. The Superior Court rejected the Hospital’s waiver argument. The Hospital pointed to the fact that during arguments before the calendar control judge, Appellees never objected to the trial court’s lack of personal observation of prospective juror number 29’s demeanor during voir dire, and Appellees did not request that the judge individually question the juror.
The Hospital filed a petition for allowance of appeal, which the Pennsylvania Supreme Court granted. The Pennsylvania Supreme Court found the issue of whether the Superior Court improperly considered the arguments regarding juror demeanor when those arguments were waived, to be dispositive. According to the Hospital, the issue for the Superior Court’s consideration was whether the answers provided by the prospective jurors during voir dire provided a specific basis for disqualifying them based on actual prejudice or bias and it should have confined its analysis accordingly. The Hospital argued that the Superior Court erred by considering arguments related to the conduct and demeanor of the prospective jurors, and the lack of the judge’s presence at voir dire, because said arguments were waived for purposes of appellate review, as they were not properly raised at the trial court by Appellees. Appellees responded that they could not have objected to the demeanor of the challenged jurors during voir dire because the trial judge was not present to rule on such objection, and there was no way to record the objection for appellate review. Further, Appellees contended that when they made an argument regarding the alleged bias of prospective juror 29, implicit in that argument was a commentary on her demeanor, and thus, they preserved the issue for appellate review. Appellees also argued that they properly preserved the issue of the trial court’s lack of firsthand assessment of the jurors’ demeanor during voir dire in their post-trial motions.
In its analysis, the Pennsylvania Supreme Court explained that the issue of waiver presents a question of law and therefore, the standard of review was de novo and the scope of review was plenary [3]. Further, issues not raised in lower courts are waived for purposes of appellate review and they cannot be raised for the first time on appeal [4]. Requiring issues to be properly raised first in the trial court ensures that trial judges have the opportunity to consider a potential appellate issue and correct any error at the first available opportunity [5].
In Trigg, the Pennsylvania Supreme Court ruled that Appellees waived their argument that the trial court erred by not observing the demeanor and tenor of prospective juror 29 during voir dire. The trial court record indicated that Appellees made no objection in pre-trial motions to the trial judge’s absence from the jury assignment room during voire dire. Likewise, when Appellees made their challenge for-cause to the seating of prospective juror 29, they did not contemporaneously object to the trial judge’s absence from the room during voire dire. Further, the transcript from the argument before the calendar control judge regarding juror 29 indicates that Appellees’ challenge was predicated on the substance of the answers which she gave during voir dire (i.e., her familial relationship with members of the medical profession indicated her potential bias); the record does not support Appellees’ claim that as part of their challenge for-cause, they implicitly raised issues concerning the inability of the trial judge to assess the demeanor of prospective juror 29 as she gave her answers. The fact that Appellees, in post-trial motions, alleged the trial court erred in not striking this juror for-cause because the trial court did not have the opportunity to observe the demeanor and tenor of her answers does not preserve the issue for review. Pa.R.C.P. 227.1 requires a party to raise an objection at trial, inter alia, by motion, or by a specific on the record objection in order to obtain post-trial relief. Appellees, in making their for-cause challenge to prospective juror 29, failed to raise with the trial judge any issue relating to his lack of observation of the juror’s demeanor nor did Appellees request that the judge personally interview the juror. As a result, the trial judge was deprived of any opportunity to address and resolve the issue before the jury was finally empaneled.
The Supreme Court ruled that the Superior Court erred when it rejected the Hospital’s claim of waiver. The Superior Court did not analyze the waiver claim in accordance with the well-established requirement for issue preservation. Rather the Superior Court essentially addressed the merits of the claim. The Pennsylvania Supreme Court vacated the Superior Court’s order reversing the trial court and remanded the case to the Superior Court to consider further issues raised by Appellees.
[1] Voir dire generally describes the pre-trial process of examining prospective jurors in order to obtain a competent, fair, impartial and unprejudiced jury. 2 West’s Pa. Forms, Civil Procedure § 54:0 at 1.
[2] Shinal v. Toms, 162 A.3d 429 (Pa. 2017).
[3] Stapas v. Giant Eagle, 198 A.3d 1033, 1037 (Pa. 2018).
[4] Pa.R.A.P. 302(a).
[5] In re F.C. III, 2 A.3d 1201, 1211 (Pa. 2010).
by Mark Bauman | Mar 26, 2023 | Legal News, Other News
On April 13, 2020, The New Jersey legislature passed Senate Bill 2333 providing civil and criminal immunity to healthcare providers who are treating patients for COVID-19. This bill was signed into law by Governor Phil Murphy on April 14, 2020, and provides immunity only for treatment of COVID-19. The immunity does not extend to treatment unrelated to the COVID-19 pandemic. The bill broadly defines healthcare providers as any registered or licensed provider such as physicians, physician assistants, advanced practice nurses, registered nurses, licensed practical nurses, and emergency responders. It also extends immunity to any healthcare facility, such as hospitals. The bill states that “a healthcare professional shall not be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by the health care professional in the course of providing medical services in support of the State’s response to the outbreak of coronavirus.” The bill further delineates that “[i]mmunity shall also include any act or omission undertaken in good faith by a health care professional or healthcare facility or a health care system to support efforts of treating COVID-19 patients and prevent the spread of COVID-19 during the public health emergency and state of emergency declared by the Governor.” The bill retroactively dates to March 9, 2020, to provide immunity for any treatment rendered in this effort and extends until the declaration of emergency for the state of New Jersey has been lifted.
by Mark Bauman | Mar 25, 2023 | Legal News, Other News
In Dunlap v. Ridley Park Swim Club, et al.,1 the PA Superior Court reversed and remanded the decision of the Court of Common Pleas of Delaware County because the trial court did not include the settling defendant on the verdict sheet. The Superior Court found that by not including Harper Associates on the verdict sheet and preventing the jury from apportioning responsibility between the defendants, the trial court abused its discretion. The Superior Court found that the appellants proved a prima facie case of negligence against Harper Associates and therefore, that Harper Associates was required to appear on the verdict sheet. The Superior Court relied on the Supreme Court opinion in Davis v. Miller, 123 A.2d, 424 (Pa. 1956) (holding that a defendant has a right to have a settling defendant appear on the verdict sheet in order to apportion liability). The Superior Court also relied on their own opinion in Herbert v. Parkview Hosp., 854 a.2d 1285, 1290 (Pa. Super. 2004), appeal denied, 872 A.2d 173 (Pa. 2005) (holding that Davis only requires a settling co-defendant to appear on the verdict sheet upon a showing of a prima facie case of negligence).
The relevant facts are that the appellee was swimming at Ridley Park’s pool, and a tree fell on her while she was leaving causing serious injury. The tree was located on property owned by Harper Associates. The appellee commenced legal action by filing a complaint against multiple defendants, including Ridley Park and Harper Associates. The appellee entered into binding arbitration with Harper Associates prior to trial, and the arbitrator awarded her $350,000. A pro rata joint tortfeasor release was executed, and provided that, “recovery against Ridley Park shall be reduced only to the extent of the pro-rata share of such damages as may be attributable to Harper Associates and related defendants. . .” The trial court found that Ridley Park did not prove a prima facie case of negligence against the appellant because they did not provide expert testimony, and ruled that Harper Associates would not appear on the verdict form. The jury returned a verdict in favor of the appellee for $750,000.
On appeal the appellants argued five issues. Appellants prevailed on the argument that a new trial should be granted due to the trial court’s error of not submitting the question of Harper Associates’ negligence to the jury. The Superior Court determined that Ridley Park was not required to present expert testimony to prove its prima facie case of negligence. Expert testimony is required “when the subject matter of the negligence is outside the skill and knowledge of an ordinary layman.”2 The Superior Court found that Harper Associates had a duty to visually examine the tree, and relying on Barker v. Brown3, determined that no expert testimony was required. Barker v. Brown held, that a possessor of land in or adjacent to a developed area is subject to liability for harm caused to others outside of the land, by a condition on the land, if a reasonable exercise of care would have disclosed the defect and the risk, and would have been reasonably safe by repair or otherwise.
Additionally, the Court found an expert was not required to find a breach of duty. The issue of whether a tree was visually examined does not require specialized training or knowledge. Causation does require expert testimony, and the appellee’s expert provided sufficient testimony to create a question of fact for the jury, and was not a matter of law for the trial court to decide. Lastly, it is undisputed that the fallen tree caused the injuries.
Ultimately, the Court found that the appellants made a prima facie showing that Harper Associates was negligent, and that the trial court abused its discretion by not including them on the verdict sheet. The error clearly prejudiced the appellants, because if the jury determined Harper Associates had some responsibly for the appellee’s injuries the appellants’ damage award would have been reduced in accordance with the pro rata joint tortfeasor release.
[1] Dunlap v. Ridley Park Swim Club, et al., 2014 Pa. Ct. Comm. Pl., WL 10298711, *1 (December 10, 2014), reversed and remanded, No. 3199 (Pa. Super. 2015)(unpublished memorandum).
[2] Young v. Commw. Dep’t of Transp., 744 A.2d 1276, 1278 (Pa. 2000)(citations omitted).
[3] Barker v. Brown, 340 A.2d 566, 569 (Pa. Super. 1975).
by Mark Bauman | Mar 24, 2023 | Legal News, Other News
The New Jersey Appellate Division recently upheld a lower court decision to reject a surgeon’s lawsuit against a hospital and its Board of Trustees based on both federal and state statutory immunity protections afforded to hospitals and participants in internal peer-review evaluations.
The suit originated in 2010 when the plaintiff, a general surgeon, had two patients whose cases were reviewed by an independent expert at the request of the Chief of Surgery. The expert found that the plaintiff failed to provide proactive treatment, prompting an internal review and the plaintiff’s privileges were suspended in accordance with the hospital bylaws. Less than a week after his suspension, the plaintiff sought injunctive relief and the Chancery Division ordered the hospital to provide the plaintiff with the hospital’s bylaws, written notice of any adverse action taken against him, medical charts, and a report of the hospital’s findings.
During the review, the plaintiff declined three invitations to participate in person. Instead, he submitted statements in a letter from his attorney. The committee concluded that the plaintiff’s patient care demonstrated poor documentation and delays in management, causing adverse outcomes. As a result, the committee recommended review of an additional 25 previous surgical cases. The Chancery Court action was subsequently dismissed upon motion by the hospital. This spurred the plaintiff to file a motion for reinstatement and a complaint with the Law Division. The hospital moved to dismiss the motion without prejudice as additional reviews were underway. The plaintiff did not oppose the motion and the parties entered a consent agreement.
The hospital hearings were conduced by a panel of physicians with a presiding member from an outside organization. The panel issued a report in 2012 stating that the plaintiff demonstrated poor judgment, lack of attentiveness, and poor postoperative management. Notably, the panel also discovered that the plaintiff authored a note falsely indicating he spoke to a patient’s mother. As a result, the Board of Trustees revoked the plaintiff’s privileges. The decision prompted the plaintiff to move to reinstate his Law Division claim, which was denied. The plaintiff again moved for reinstatement of his claims and filed a Third Amended Complaint, which also named for the first time the Board of Trustees as a defendant. Law Division Judge Kenneth J. Grispin denied the plaintiff’s second motion as it found that plaintiff failed to plead malice as required to rebut the presumption of reasonableness provided by the federal Healthcare Quality Improvement Act of 1986 (“HCQIA”) given the record of extensive investigation.
Plaintiff appealed the decision, contending that the trial court prematurely enforced the defendants’ statutory immunities from monetary damages and arguing that the court should have afforded him the opportunity to conduct depositions and further discovery. While he admitted that some of his patients had not been managed perfectly, plaintiff argued that the revocation of his privileges by the Board of Trustees was unduly harsh. Accordingly, plaintiff requested that the trial court’s order be vacated and that his lawsuit be reinstated for completion of discovery and a decision on the merits. Defendants maintained that the trial court properly enforced the federal and state immunity statutes, which are designed to protect hospitals and participants in internal peer reviews from having monetary liability to sanctioned doctors.
The three-judge appellate panel supported the trial court decision, highlighting the HCQIA as well as NJSA 2A:84A-22.10, a New Jersey statute that similarly shields hospitals from monetary liability to sanctioned doctors, so long as the peer review investigation was conducted in a fair and reasonable manner. Even viewing in the light most favorable to the plaintiff, the appellate panel agreed with Judge Grispin that the hospital was entitled to immunity from damages and that the plaintiff failed to present a sufficient basis to overcome those immunities.
The hospital’s review of the plaintiff’s performance squarely fit within the definitions provided by HCQIA of “professional review activity” and “professional review bodies,” and was thus afforded immunity so long as they acted under the reasonable belief that their actions were in the furtherance of quality healthcare, made a reasonable effort to obtain the facts of the matter, and provided adequate notice of hearing procedures to the physician. Similarly, NJSA 2A:84A-22.10 broadly protects any person involved in a review and applies so long as the action made was “without malice in the reasonable belief after reasonable investigation that such action or recommendation was warranted upon the basis of facts disclosed.”
The appellate court found no plausible indication that defendants failed to comport with the HCQIA or the state statute. Although a physician is entitled to a fair and unbiased tribunal and a right to limited disclosure of certain information, the HCQIA grants deference to hospitals making difficult decisions regarding clinical privileges, which is manifested by the law’s presumption of immunity.
As for plaintiff’s request for additional discovery and a case to be decided on its merits, the appellate court ruled that the challenger’s “right to obtain discovery, particularly depositions, in cases involving immunity statutes is not absolute. Instead, the court may curtail discovery in its discretion if there are no reasonable indicia that a factual basis to surmount the immunities will be uncovered.”
