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a physician’s license when the Board receives documentation that the physician’s authority to practice medicine has been revoked or subject to a final or interim order of suspension by another state, agency or authority.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 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).
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).
