Legal Report

Perspective Legal Report

A big win for Peer Review Protection in PA

WILLIAM H. MARUCA, ESQUIRE

The Pennsylvania Supreme Court unanimously reversed its own prior narrow interpretation of the Peer Review Protection Act (PRPA) in an opinion published on August 17, 2021. The court has now broadened the category of documents that are protected under the PRPA to include materials that were generated outside a formal “peer review committee” so long as they represent peer review activities. Malpractice defense counsel are welcoming this about-face and are calling it a return to normal.

In Leadbitter v. Keystone Anesthesia Consultants, et.al., the plaintiff in a malpractice suit alleged a hospital's credentialing and privileging process was inadequate, and that the hospital knew or should have known that a surgeon lacked the expertise to be authorized to perform the surgery in question, resulting in the patient’s permanent disability. The plaintiff demanded the hospital produce the surgeon’s entire credentialing and privileging file. The hospital produced a version of the record which redacted certain opinions about the surgeon’s competence, and specifically withheld OPPE (Ongoing Professional Practice Evaluation) Summary Report; a Professional Peer Review Reference and Competency Evaluation, which contained evaluations prepared by other physicians of the surgeon’s performance; and three documents described as "National Data Bank Practitioner Query Response," based on queries submitted to the National Practitioner Data Bank, claiming that these documents were privileged under the PPRA. The plaintiff filed a motion to compel the production of the withheld documents, and the trial court agreed, citing the 2018 case of Reginelli v. Boggs. In Reginelli, the Pennsylvania Supreme Court held 4-3 that the “performance file” of an emergency medicine physician was ineligible for peer review privilege protection because PRPA evidentiary protection is restricted to a narrow class of entities using a peer review committee for a narrow class of specified activities. On appeal, the Superior Court sided with the plaintiff and ordered the release of the materials based on the Reginelli precedent, which they understood as holding that only documents of a formal "review committee" enjoyed the statutory protection, and not documents kept by a "review organization" such as a credentials committee.

Upon appeal to the state Supreme Court, the hospital argued that denying confidentiality to peer-review materials based solely on a committee's label as a credentials committee misunderstands how such bodies operate, and fails to protect the confidentiality of peer-review materials as intended when the PRPA was enacted. The hospital noted that candid assessments of a physician’s capabilities could be chilled if peer-level reviewers knew their evaluations might be disclosed during litigation, which was a key factor in the legislature’s decision to protect such assessments from dis covery when passing the PPRA in 1974.

In Leadbitter, the Pennsylvania Supreme Court held that any hospital committee that engages in peer review activities can be considered a "review committee" under the PRPA, and its documents are protected from discovery. The majority opinion noted that in Reginelli, the court did not purport to analyze review for delineated hospital privileges, thereby ducking the question of whether to totally overturn the prior decision. “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.” The assessment of a physician’s experience, capabilities, and competence inherently involve peer review regardless of whether the committee that performs them is named

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the "credentials committee" and regardless of whether the same committee also does credentialing review. A credentials committee may perform peer review in addition to verifying academic degrees, board certifications, and licensure status.

The state Supreme Court sent the case back to the trial court and directed the judge to review the redacted and withheld information to determine if they constitute peer review materials as defined in the PRPA.

Turning to the National Practitioner Data Bank documents sought by the plaintiff, the court cited the federal Health Care Quality Improvement Act (HCQIA) protected NPDB query responses from discovery as well as reports made to the NPDB. This is a logical conclusion, as it would make little sense to protect incoming reports but permit Data Bank reports sent to hospitals and other querying entities to be subpoenaed.

In a concurring opinion, Justice David Wecht agreed with the outcome and cited his own dissent in Reginelli, but took issue with the contortions the majority opinion undertook to distinguish its holding in Leadbitter instead of overturning it directly. He contends that the PRPA clearly protects the actions of any hospital body that undertakes peer review activities, no matter how it is labelled or what other duties it performs.

Peer review activities, including credentialing and privileging, rely on confidentiality to encourage open, honest and sometimes uncomfortable dialogue about physicians’ competence. Peer review protection laws have been praised for breaking a perceived wall of silence that discouraged physicians from speaking ill of each other prior to the advent of such laws in the 1970s.

For the past three years, the Reginelli rule has muddied the protection of many common forms of peer review and evaluation outside formal peer review committees. Physicians who had grown hesitant to participate in such candid assessments for fear of liability to themselves, their colleagues and their institutions can take comfort in the relatively expedited reversal of what a majority of the court may have concluded was an ill-considered, overly-formalistic analysis. Pennsylvania physicians are once again free to speak their minds about their peers’ capabilities without worrying that their words will be forcibly revealed in the context of litigation. After all, the objective of the peer review system is to improve the quality of patient care and remove unqualified or negligent practitioners, not to cover up mistakes or protect careless physicians. It is the confidentiality of the peer review process that allows the free and open discussion of qualifications that allows and supports such candor.

William H. Maruca, Esquire is a healthcare partner with the national law firm Fox Rothschild LLP in the Pittsburgh Office. He can be reached at wmaruca@foxrothschild.com (412) 394-5575.

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ACMS Bulletin / October 2021

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