by Mark Bauman | Apr 7, 2023 | Legal News, Medical Malpractice
A recently-enacted statute, which was signed into law by Governor Rendell, states that before a prevailing party or beneficiary in a law suit can receive the proceeds from any settlement or award, that party must provide to his or her attorney a sworn statement that includes the prevailing party or beneficiary’s full name, mailing address, date of birth, and social security number. This party must also provide a statement from the Pennsylvania Child Support Enforcement website, which indicates whether he or she owes any child support payments, and if so, the amount in arrears. The attorney shall then forward the statement and lien report from the website at the time of the delivery of the release. If overdue child support does exist, that amount shall act as a lien against the net proceeds of any monetary award. This law takes effect on September 5, 2006. See 23 Pa.C.S. §4308.1. “Collection of Overdue Support From Monetary Awards.”
by Mark Bauman | Apr 6, 2023 | Legal News, Medical Malpractice
On March 28, 2006, Governor Edward G. Rendell vetoed legislation that would have replaced Pennsylvania’s long-standing adherence to the doctrine of joint and several liability, in which each defendant in a legal action is responsible for the entire amount of damages regardless of their degree of responsibility or fault. The proposed legislation would have installed a system of comparative negligence where any party whose liability in a civil action is less than 60% would pay only their corresponding percentage of the damages.
by Mark Bauman | Apr 5, 2023 | Legal News, Medical Malpractice
On January 4, 2006, New Jersey enacted A.1698, which involves disciplinary actions associated with physicians’ licenses to practice medicine. This legislation complements the Health Care Professional Responsibility Reporting Enhancement Act.
The new legislation requires the New Jersey State Board of Medical Examiners to suspend a physician’s license when the Board receives documentation that the physician’s authority to practice medicine has been revoked or subject to a final or interim order of suspension by another state, agency or authority. The action of the other state, agency or authority must be based upon facts that demonstrate that the physician’s continued practice of medicine would pose a risk to the public’s welfare or health. Further, the Board has the authority to suspend a physician’s license if the findings of another state, agency or authority demonstrate gross or repeated negligence, fraud or other professional misconduct that adversely affects the public’s welfare or health. A physician who receives notification of the suspension will have the opportunity to submit evidence, and in some cases, will have an opportunity for oral argument.
Under the Health Care Professional Responsibility Reporting Enhancement Act, a health care entity must provide written notice to the Division of Consumer Affairs in the Department of Law and Public Safety if a health care professional associated with the health care entity displays impairment, incompetence or professional misconduct that adversely impacts patient care or safety. The health care entity must also provide written notice to the Division if the health care professional has privileges revoked or suspended. Further, if a health care professional and a health care entity are parties to the same medical malpractice lawsuit, the health care entity must provide written notice to the Division if there is a settlement, judgment or arbitration award. All records associated with a health care entity’s notice to the Division must be maintained for seven years and must be made available to the Division, Board or other relevant organization.
by Mark Bauman | Apr 4, 2023 | Legal News, Medical Malpractice
The Pennsylvania House of Representatives approved an amendment to the Pennsylvania statutes, which would deem any benevolent gesture or admission of fault made by a healthcare provider prior to the start of a medical professional liability action inadmissible as evidence of liability or as evidence of an admission of interest. The proposed amendment is commonly referred to as the “Benevolent Gesture” legislation. The intent of the legislation is to promote an open dialogue between families and healthcare providers that usually does not occur because of the concern of how those statements from the healthcare providers could be used in a lawsuit. The next step in enacting the “Benevolent Gesture” legislation into law is approval from the Pennsylvania Senate. If enacted into law, apologies and compassionate statements made by healthcare providers prior to the filing of a lawsuit will not be admissible to use against the healthcare providers.
by Mark Bauman | Apr 3, 2023 | Legal News, Medical Malpractice
Legislation has been introduced in the New Jersey Senate and Assembly which would limit the recovery of non-economic damages in all medical malpractice actions to $250,000. This would include suits against physicians, hospitals, and long-term care facilities. Non-economic damages are defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage. The act would take effect immediately but only apply to cases which accrue after its effective date.
The act has been referred to the Senate Commerce Committee and Assembly Financial Institutions and Insurance Committee, respectively. The same act was introduced during the last session of the legislature but did not emerge from committee.
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).
