The Superior Court of Pennsylvania recently addressed application of the Patient Safety Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b 22(a), and the Peer Review Protection Act (“PRPA”), 63 P.S. § 425.4 in a case involving Wilkes-Barre General Hospital, a health system and various health care providers. In Ungurian v. Beyzman, decided April 28, 2020, the Superior Court rejected, without exception, the Hospital’s claims that documents it withheld from discovery were protected under either of these statutes.

Ungurian was a medical malpractice claim brought by a mother who claimed that the Hospital was negligent and caused her son injuries. In response to discovery requests, the Hospital withheld five categories of documents: (i) an Event Report; (ii) a Serious Safety Event Rating Meeting Summary; (iii) Meeting Minutes from the Patient Safety Committee; (iv) a Root Cause Analysis Report and (v) the Hospital’s Quality Improvement Staff Peer Review.

The Hospital claimed that two of the documents — the Event Report and the Root Cause Analysis—were protected by the PSQIA and by the PRPA. The Hospital also asserted that the remaining documents – the Quality Improvement Peer Review Meeting minutes, the Serious Safety Event Rating Meeting, minutes from the Patient Safety Committee, and certain credentialing files — were protected by the PRPA.

The Superior Court rejected all of the Hospital’s claims.

Specifically, the Court held that the PSQIA did not protect the Event Report and the Root Cause Analysis because the PSQIA protects “patient safety work product … assembled or developed by a provider for reporting to a patient safety organization and are reported to a patient safety organization,” but not “information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.” Here, the Court found, the Hospital failed to establish that the Event Report or Root Cause Analysis were developed for reporting to or by a patient safety organization and did not exist outside of the Hospital’s patient safety evaluation system.

The Court next addressed the Hospital’s claim that PRPA peer review privilege protected its Event Report from discovery. The Hospital argued that: (1) the Hospital is a “professional health care provider” under PRPA; and (2) the Event Report was not in the nature of an “incident report.” After noting that hospital incident and event reports are business records of a hospital and not the records of a peer review committee, the Court found that the Hospital failed to support its privilege by specifically naming the identity of the members of the review committee. It also held that the Event Report was akin to an incident report, not generated for purposes of peer review and, therefore, was not protected.

The Court also found that the PRPA privilege did not apply to the Quality Improvement Medical Staff Peer Review because it was authored by a doctor whose license had expired in 2014 (and, thus, did not qualify as a “professional healthcare provider” under the PRPA at the time he performed the “peer review”) and because Defendants did not present a contract to prove that the physician performed the Quality Improvement Medical Staff Peer Review for the Hospital. The Court likewise found that the Serious Safety Event Rating Meeting did not qualify for protection because the Hospital did not identify the members of that committee.

Finally, the Court rejected the Hospital’s claim that the Minutes from the Patient Safety Committee Meeting were protected. The Court found that because the Patient Safety Committee included members of the community served by Hospital, and was not exclusively comprised of “professional healthcare providers,” the Hospital failed to satisfy its burden of proving that the PRPA privilege applied.

Finally, the Court rejected the claim that the unredacted credentialing files for certain physicians should be protected. While the Hospital argued that its credentialing committee fell within the PRPA’s definition of qualifying “review committee” as opposed to a non-qualifying “review organization,”  the Court found that credentialing review is not entitled to protection from disclosure under the PRPA.

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While the Superior Court reviewed the purpose and meaning of the Patient Safety Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b 22(a), and the Peer Review Protection Act (“PRPA”), it is clear that the Ungurian decision turned on the quality and specificity of evidence submitted to support the Hospital’s privilege claim. While the decision does not address any privileges afforded under Medical Care and Reduction of Error (MCARE) Act, physicians and hospitals should review this decision carefully and use it as a roadmap. This way, they can be assured that documents created to protect patient safety and for peer review purposes obtain the protection the legislature intended.

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At Lamb McErlane PC Maureen M. McBride concentrates her practice on commercial litigation and appellate law. Maureen provides counseling and advice to a wide array of corporate clients, physicians, hospitals and individuals. She is a partner and co-chair of Lamb McErlane’s Appellate Department, a member of the Litigation Department and the Firm’s Executive Committee. mmcbride@lambmcerlane.com. 610.701.4410.