In Krappa v. Lyons, the Pennsylvania Superior Court revisited Pennsylvania’s Peer Review Protection Act (“PPRA”) in determining whether a physician’s credentialing file is immune from discovery.
Plaintiff’s complaint raised thirteen (13) counts against multiple Defendants, including wrongful death and survival claims. Count II asserted a negligence claim against Frank Piro, M.D. with respect to his interpretation of a CT scan in January 2008. Count VIII asserted a corporate liability claim against Defendant Community Medical Center (“CMC”) with respect to the hiring, training, and/or supervising physicians, including Dr. Piro.
During the course of discovery, the Plaintiff sought unredacted copies of CMC’s files for Dr. Piro. CMC and Dr. Piro objected to the production and asserted the information requested was privileged pursuant to the PRPA. Plaintiff filed a motion to compel CMC to produce the unredacted and complete credentialing materials for Drs. Piro. In the motion, Plaintiff sought production of unredacted credentialing files, based on the recently decided Pennsylvania Supreme Court decision Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018). CMC asserted that Reginelli was inapplicable, arguing that its credentialing committee constituted a “review committee” whose records must remain confidential under the PRPA. Further, CMC insisted that the performance evaluations in its files satisfied the PRPA’s definition of “peer review” materials. The trial court conducted an in camera review of the unredacted credentialing file for Dr. Piro, and entered an order compelling the production of the unredacted files. CMC appealed the trial court’s decision to the Superior Court.
CMC framed the issue as follows:
Did the trial court err, as a matter of law, in construing Reginelli, as announcing a blanket rule depriving all previously-protected credentialing committee materials of peer review protection, when the issue of a credentialing committee’s review of physician performance was not before the Supreme Court; to the extent the Supreme Court addressed credentialing materials, it limited its discussion to that part of the credentialing process concerned only with factual review of professional qualifications, such as board certifications, and professional activities, such as service on professional organizations; and the Court reaffirmed that the peer review privilege protects the records of any review committee when one professional health care provider is evaluating the performance of another professional healthcare provider?
The PRPA provides the following evidentiary privilege:
§ 425.4. Confidentiality of review organization’s records
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 health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or used in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings. 63 P.S. § 425.4
The PRPA also defines the following pertinent terms:
§ 425.2. Definitions
As used in this act:
“Peer review” means 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, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations.
“Review organization” means any committee engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a health insurance review committee, a hospital plan corporation review committee, a professional health service plan review committee, a dental review committee, a physicians’ advisory committee, a veterinary review committee, a nursing advisory committee, any committee established pursuant to the medical assistance program, and any committee established by one or more State or local professional societies, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto. It shall also mean a committee of an association of professional health care providers reviewing the operation of hospitals, nursing homes, convalescent homes or other health care facilities. 63 P.S. § 425.2.
In analyzing this case, the Superior Court revisited Reginelli wherein the Pennsylvania Supreme Court granted allowance of appeal to determine whether a medical service provider and hospital had any entitlement to the PRPA’s evidentiary privilege with respect to the performance file of an independently contracted emergency medicine physician. The Supreme Court engaged in statutory interpretation of the pertinent provisions of the PRPA and determined, “the PRPA’s evidentiary privilege is reserved only for the proceedings and documents of a review committee.” Reginelli, 181 A.3d at 304. The Court reasoned:
The terms “review committee” and “review organization” are not interchangeable, as they connote distinct types of entities under the PRPA. The first sentence of the definition of “review organization” defines the type of entity that constitutes a “review committee,” namely, “any committee engaging in peer review.” The second sentence, in contrast, contains no reference to peer review, and instead refers to a “hospital board, committee or individual” involved in the review of “the professional qualifications or activities of its medical staff or applicants thereto” by a “hospital board, committee or individual.” This second category of “review organizations” does not involve peer review, as that term is defined in the PRPA, which 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. Accordingly, although “individuals reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto,” . . . are defined as a type of “review organization,” such individuals are not “review committees” entitled to claim the PRPA’s evidentiary privilege in its section 425.4.
Professional “qualifications” would include, for instance, a physician’s continuing maintenance of his or her board certifications, and “activities” could include clinical research initiatives, continuing education, service on professional committees or organizations and, more broadly speaking, other qualifications deemed necessary by the hospital. Credentials review permits a hospital to retain, and then maintain, a medical staff of quality professionals.
Therefore, the Reginelli Court indicated that the PRPA does not extend its grant of an evidentiary privilege to materials that are generated and maintained by entities reviewing the professional qualifications or activities of medical staff “i.e., credentials review.” Additionally, “the performance file [in Reginelli] was not generated or maintained by MVH’s peer review committee,” and the PRPA’s evidentiary privilege did not apply.
In this case, the Superior Court confirmed the trial court’s determination that the files at issue “consist entirely of credentialing materials of Dr. Piro.” Regarding the applicability of the PRPA, the Superior Court determined that materials in the doctors’ personnel files are generated and maintained by CMC’s credentialing committee. The Court held that the PRPA’s protections do not extend to the credentialing committee’s materials, because this entity does not qualify as a “review committee.” Accordingly, the Superior Court affirmed the trial court’s decision to order the production of Dr. Piro’s credentialing file, and remanded the case back to the trial court for further proceedings.