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 (\u201cPSQIA\u201d) and the Peer Review Protection Act (\u201cPRPA\u201d).<\/p>\n\n\n\n

In Ungurian v. Beyzman, et al.<\/em><\/a>[1]<\/strong>, Wilkes-Barre Hospital Company, LLC (\u201cHospital\u201d) 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.<\/p>\n\n\n\n

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<\/em>, 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 \u201csurgery, treatment, test, invasive procedure\u201d; 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\u2019s Quality Improvement Staff Peer Review.<\/p>\n\n\n\n

Ungurian filed a Motion to Strike the Objections and Compel the Hospital\u2019s 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.<\/p>\n\n\n\n

The trial court held a hearing on Ungurian\u2019s 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\u2019s and CRNA Burry\u2019s 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\u2019s privilege log).<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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 (\u201cNAPA\u201d). 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\u2019s 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\u2019s Chief Quality Officer and the medical director for the Hospital\u2019s 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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 \u201cany 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 (\u201cPSO\u201d) and are reported to a PSO.\u201d<\/a>[2]<\/strong> Patient safety work product excludes \u201cinformation that is collected or maintained or developed separately, or exists separately from a patient safety evaluation system.\u201d<\/a>[3]<\/strong> \u201cSuch separate information or a copy thereof reported to a PSO shall not by reason of its reporting be considered patient safety work product.\u201d Further, the party asserting the privilege bears the burden of producing facts establishing proper invocation of the privilege.<\/a>[4]<\/strong> 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\u2019s patient safety work product privilege.<\/p>\n\n\n\n

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\u2019s patient safety evaluation system, thereby defeating its privilege claim. <\/p>\n\n\n\n

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 \u201cprofessional healthcare provider\u201d under the PRPA and the Event Report was not in the nature of an \u201cincident report\u201d. The PRPA provides an evidentiary privilege for peer review documents and provides in relevant part, \u201cthe 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.\u201d<\/a>[5]<\/strong> The PRPA defines peer review as \u201cthe procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers.\u201d<\/a>[6]<\/strong>The PRPA defines professional health care provider as \u201cindividuals who are approved, licensed, or otherwise regulated to practice or operate in the healthcare field under the laws of the Commonwealth.\u201d<\/a>[7]<\/strong> Under the PRPA peer review organization is defined as \u201cany 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.\u201d<\/a>[8]<\/strong> 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<\/a>[9]<\/strong>. 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<\/a>[10]<\/strong>. The Hospital did not generate the Event Report during the course of peer review, instead it was produced in accordance with the Hospital\u2019s Event Reporting Policy. Further, the Hospital\u2019s failure to identify the members of its peer review committee was fatal to its claim that PRPA privilege applied.<\/p>\n\n\n\n

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\u2019s 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 \u201cprofessional health care providers\u201d, the Superior Court concluded that the Hospital\u2019s failure to identify the members of the Root Cause Analysis Committee as \u201cprofessional healthcare providers\u201d was fatal to its privilege claim.<\/p>\n\n\n\n

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 \u201cprofessional healthcare provider\u201d, 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 \u201cprofessional healthcare providers\u201d 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.<\/p>\n\n\n\n

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\u2019s Affidavit did not satisfy the evidentiary burden of proving the applicability of the PRPA privilege. The Hospital\u2019s unilateral assertion that the meeting summary was privileged peer review information does not, without more, entitle the document to protection under the PRPA.<\/p>\n\n\n\n

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 \u201cprofessional healthcare providers.\u201d Therefore, the Hospital failed to satisfy its burden in proving the PRPA privilege applied to the minutes of the Patient Safety Committee Meeting.  <\/p>\n\n\n\n

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\u2019s performance reviews were privileged under the PRPA as its credential committee fell within the PRPA\u2019s definition of qualifying \u201creview committee\u201d as opposed to a non-qualifying \u201creview organization.\u201d 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<\/a>[11]<\/strong>. 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.<\/p>\n\n\n\n