Peer Review Privilege Limited By Pennsylvania Supreme Court Decision Has Implications For Healthcare Providers Nationwide

On March 27, 2018, the Supreme Court of Pennsylvania issued a long-awaited 4-3 decision in which the majority limited the scope of Pennsylvania's Peer Review Protection Act (PRPA), 63 P.S. §425. The court held that, in order to qualify as "peer review" and be eligible for the privilege protection, the entity on whose behalf the peer review is conducted must be a "professional health care provider" as defined by the statute. While this opinion focuses on Pennsylvania's specific peer review statute, the court's strict interpretation of its language may influence how plaintiffs' attorneys across the country argue that peer review protection should not extend to otherwise-protected peer review documents, based on the organization and structure of the entity that is the source of such information.

The case of Reginelli v. Boggs, 2018 BL 104420 (Pa. March 27, 2018) arose out of an incident in January 2011 in which Eleanor Reginelli was seen and discharged from the hospital's emergency room by Marcellus Boggs, M.D., allegedly with an undiagnosed heart condition that later resulted in a heart attack. The hospital in this case, Monongahela Valley Hospital (MVH), had contracted with UPMC Emergency Medicine, Inc. d/b/a Emergency Resource Management Inc. (ERMI) to provide staffing and administrative services for its emergency department. Dr. Boggs was a member of MVH's medical staff and was also employed by ERMI, and when Ms. Reginelli and her husband filed a negligence suit against Dr. Boggs, they also sued MVH for corporate negligence, as well as both MVH and ERMI under a vicarious liability theory.

During the discovery phase of this lawsuit, it was determined that the "performance file" on Dr. Boggs was maintained by the director of MVH's emergency department who, like Dr. Boggs, was both a member of the hospital's medical staff and an employee of ERMI. The emergency department director testified that the file was created as part of her regular practice of reviewing randomly selected charts associated with patients treated by ERMI-employed emergency room physicians. MVH and ERMI claimed that it was clearly protected from discovery by the statutory peer review protection. The trial court granted the Reginellis' motion to compel discovery. The Superior Court affirmed the trial court's decision and ordered the production of Dr. Boggs' performance file. ERMI and MVH then appealed to the Pennsylvania Supreme Court, claiming entitlement to the PRPA's...