In an opinion authored by Justice Christine Donohue, the Supreme Court of Pennsylvania recently restricted the application of the Peer Review Protection Act (PRPA). On March 27, 2018, the Court declined to extend the privilege to reviews conducted by an employee of a hospital staffing organization.

In Reginelli v. Boggs,[1] the plaintiff sued an emergency room physician for allegedly failing to diagnose an emergent heart condition, resulting in a heart attack. Eleanor and Orlando Reginelli filed suit against the physician, Marcellus Boggs, M.D.; Monongahela Valley Hospital, Inc. (MVH); and UPMC Emergency Medicine, Inc. (ERMI).

MVH and ERMI have a contractual agreement, by which ERMI provides staffing services to the MVH emergency department. Dr. Boggs was an employee of ERMI. ERMI also employed Brenda Walther, M.D., the director of emergency medical services at MVH.

During discovery, Dr. Walther testified at her deposition that she periodically prepared and maintained “performance files” of the MVH emergency physicians, including Dr. Boggs. These files contained random reviews of each physician’s patient charts. Plaintiff requested Dr. Boggs’ complete performance file, but MVH argued that it was protected by the PRPA.

Plaintiffs filed a motion to compel against MVH, which was granted by the trial court. Both MVH and ERMI appealed to the Pennsylvania Superior Court, arguing that Dr. Walther’s review of the emergency physicians’ files was for purposes of quality assurance, which constitutes peer review on behalf of both MVH and ERMI. The Superior Court affirmed the trial court’s order requiring defendants to produce the file, and defendants appealed to the Supreme Court.

Initially, the Court noted the importance of closely adhering to the statutory language of the Act. The Court acknowledged that the peer review privilege protects “the proceedings and records of a review committee from discovery . . . in an action against a professional health care provider” 63 P.S. § 424.4. The Court then reviewed the definitions of “peer review,” “professional health care provider” and “review organization” set out in section 424.2.

The Court first addressed whether ERMI qualifies as a “professional health care provider” under the PRPA. ERMI argued that ERMI provides medical care to patients through its employee physicians. The Court held that, to be considered a “professional health care provider”, an entity must be “approved, licensed or otherwise regulated” by the Commonwealth of Pennsylvania to practice health care. According to the Supreme Court, even though ERMI employed physicians, ERMI itself was not licensed to render health care services, and therefore could not qualify for protection under the PRPA.

In reaching this conclusion, the Supreme Court distinguished its holding in McClellan v. Health Maint. Org. of Pa.,[2] in which the 1996 plurality concluded that a healthcare provider could include “persons or things of the same general kind or class as those specifically mentioned in the [PRPA]”. Justice Donohue held that while McClellan may have broadened the scope of the types of entities that could be considered “health care providers”, ERMI here could not fit itself into that definition without satisfying the PRPA’s express prerequisite that it be “approved, licensed or regulated”.

The Court next addressed whether Dr. Walther, as an individual, could conduct peer review activities under the Act. Based on the Act’s definition of “review organization,” the Court drew a distinction between a “review committee” and a “review organization.” A review committee is “any committee engaging in peer review.” It must include at least two people. A review organization includes “any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.” Under section 425.4, the evidentiary privilege applies only to “[t]he proceedings and records of a review committee.” Therefore, while Dr. Walther might qualify as a review organization, she alone did not constitute a review committee entitled to the evidentiary privilege.

Further, in dicta, the Court suggested that credentialing activities do not constitute peer review. Peer review “is limited to the evaluation of the ‘quality and efficiency of services ordered or performed’ by a professional health care provider. Review of a physician’s credentials for purposes of membership (or continued membership) on a hospital’s medical staff is markedly different from reviewing the ‘quality and efficiency of service ordered or performed’ by a physician when treating patients.”

Lastly, the Court addressed the joint argument of MVH and ERMI that MVH’s peer review committee conducted peer review activities through ERMI pursuant to their contract. The Court dismissed this argument, holding that it had not been preserved for appeal. In dicta, the Court nonetheless addressed the argument and concluded that it lacked merit; there was insufficient evidence to suggest that Dr. Walther’s reviews were prepared on behalf of MVH pursuant to the contract, which was not part of the record.

[1]No. 1584 WDA 2014, 2018 WL 1473633, at *1 (Pa. March 27, 2018)

[2] 686 A.2d 801 (Pa. 1996)