The case decided by the Pennsylvania Supeme Court on August 17, 2021 concerned discovery in a Pennsylvania medical negligence lawsuit in which the patient suffered complications following surgery at a hospital. The issue was whether certain portions of the hospital’s credentialing file for the doctor who performed the surgery are protected from discovery. The hospital claimed protection under the Peer Review Protection Act and the federal Health Care Quality Improvement Act.
The Pennsylvania medical malpractice plaintiff suffered a series of strokes, resulting in numerous impairments including permanent brain damage, following spinal surgery during a two-day period at the defendant hospital in mid-January 2015. The plaintiff alleged that the defendant hospital’s credentialing and privileging process was inadequate, and that it knew or should have known the surgeon lacked the expertise to be authorized to perform the surgery in question. The plaintiff sought the complete credentialing and/or privileging file for the surgeon, and the defendant hospital responded by supplying much of the requested file, but it withheld or redacted several documents.
The county court directed the defendant hospital to produce the surgeon’s credentialing file in full and without redactions, reasoning that files relating to a doctor’s membership or continued membership on a hospital’s medical staff constitute credential-review files (as opposed to peer-review files) and, as such, are not protected by the Peer Review Protection Act (PRPA). It also concluded that, because the information requested from the NPDB was part of that same file, it too was unprotected.
The Pennsylvania Supreme Court stated that the purpose underlying the PRPA is based on the practice of medicine being highly complex and, as such, the medical profession is in the best position to police itself, and the profession’s self regulation is accomplished, at least in part, through a peer-review mechanism undertaken to determine whether a particular physician should be given clinical privileges to perform a certain type of medical activity at a hospital. The PRPA is designed to foster candor and frankness in the creation and consideration of peer-review data by conferring immunity from liability, as well as confidentiality – all with the objectives of improving the quality of care, reducing mortality and morbidity, and controlling costs. These types of protections are viewed as helpful in fostering effective peer review because of the perceived reluctance of members of the medical community to criticize their peers and take corrective action.
The Pennsylvania Supreme Court stated that 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 regulations recognize this distinction, as they specify that the medical staff must define in its bylaws the requirements both for admission to staff membership and for the delineation and retention of clinical privileges. See 28 Pa. Code §107.2. The regulations also provide that privileges, in particular, may only be given “commensurate with [the applicant’s] qualifications, experience, and present capabilities.” Id. §107.3(b) … it is possible that a credentials committee may undertake review necessary for the granting of privileges, and nothing in the laws and regulations governing such activities preclude this … In the present matter, as noted, the Hospital’s credentials committee handled [the surgeon’s] request for delineated hospital privileges – a process which, again, is asserted to have included peer review.”
The Pennsylvania Supeme Court stated: “we agree with the Hospital’s core position that a committee which performs a peer-review function, although it may not be specifically entitled a “peer review committee,” constitutes a review committee whose proceedings and records are protected under Section 4 of the act … It follows that a hospital’s credentials committee enjoys such protection if (and only if) it engages in peer review.”
The Pennsylvania Supreme Court further stated: “We recognize that the statutory privilege as thus understood may prevent civil plaintiffs from obtaining some documents tending to show that their injuries were caused by the defendant’s negligence, whether it be that of the physician or the facility at which he or she maintains privileges. However, the legislative body is presumed to have balanced that consideration against others, discussed above, which may be in tension with it, and to have intentionally used language applying to a variety of committees whose proceedings and records involve peer review.”
The Pennsylvania Supreme Court held: “the information redacted by the Hospital, and the documents it withheld, are not discoverable by Plaintiffs if they constitute peer review “proceedings” or “records,” 63 P.S. §425.4, in accordance with the PRPA’s definition of peer review. See id. §425.2, quoted in supra note 6. The record does not include the withheld documents reflected in the privilege log or the unredacted versions of the papers in question that were supplied to Plaintiffs. Hence, it will be for the common pleas court on remand to review such information in camera and make a determination as to whether they are protected as peer-review materials pursuant to the statutory definition of “peer review.” In this latter regard, we acknowledge Plaintiffs’ argument that the statutory definition of “peer review” is framed in terms of “professional health care providers” – which, in turn, is limited to “individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field” under Pennsylvania law. 63 P.S. §425.2 (definitions of “Peer review” and “Professional health care provider”). This definition should be utilized by the county court on remand. Finally, we clarify that the above applies only to the redactions and the withheld documents identified in the privilege log as the Professional Peer Review Reference and Competency Evaluation, and the OPPE Summary Report.”
The Pennsylvania Supreme Court further held that “the HCQIA and its regulations treat as privileged the information the NPDB provides to hospitals in response to requests concerning a specific practitioner. This privilege, moreover, subsists regardless of any aspect of state law to the contrary … In light of the above, the three documents listed in the Hospital’s privilege log as “Results from NDBP [sic, NPDB] Query,” are not discoverable.”
In summary, “(1) a hospital’s credentials committee qualifies as a “review committee” for purposes of Section 4 of the Peer Review Protection Act to the extent it undertakes peer review; and (2) the federal Health Care Quality Improvement Act protects from disclosure the responses given by the National Practitioner Data Bank to queries submitted to it – and this protection exists regardless of any contrary aspect of state law.”
Source Leadbitter v. Keystone Anesthesia Consultants, LTD, J-7-2021.
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