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NAVIGATING RECENT JUDICIAL
DECISIONS ON THE SCOPE OF
"PEER REVIEW PRIVILEGE"
IN PENNSYLVANIA
BY BENJAMIN A. POST, ESQUIRE, AND JOSHUA T. CALO, ESQUIRE, POST & POST, LLC

S

ince 1974, health care providers have relied on
the Pennsylvania Peer Review Protection Act
(PRPA), to allow them to candidly and openly
evaluate the care of their peers, without fear of
adverse repercussions in alleged medical malpractice
litigation. Historically, such candid evaluations
could not be discovered in alleged malpractice
lawsuits. Instead, such evaluations were protected
by a "peer review privilege."
The purpose of promoting such open and
candid evaluations has been to encourage health
care providers to police themselves, without fear of
disclosure in alleged medical malpractice cases.
If health care providers had to fear the disclosure
of such candid evaluations in alleged medical
malpractice litigation, the Pennsylvania legislature
feared that there would be a "chilling effect" on
the healthcare delivery system. In other words, if
such candid discussions would be revealed to medical malpractice
litigants, the healthcare industry might stop conducting peer
review processes.
In the last few years, the Pennsylvania appellate courts have
potentially narrowed the scope of the peer review privilege. In the
following article, we will briefly describe the court decisions that
have potentially narrowed this protection.
At the end of this article, we will explain how best to
nonetheless utilize the PRPA to protect peer review discussions and
meetings.

Background of the Peer Review Privilege
The confidentiality provision of the PRPA states that "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. . . ."1
Historically, Pennsylvania courts broadly interpreted the peer
review privilege, in deference to the Legislature's determination
that: "because of the expertise and level of skill required in the
1
2

63 P.S. § 425.4.
McClellan v. Health Maint. Org. of Pa., 686 A.2d 801, 805 (Pa. 1996).

practice of medicine, the medical profession itself
is in the best position to police its own activities."2
Therefore, prior to 2018, medical providers could
reasonably assume that many types of candid
evaluations, and quality improvement activities,
would be protected from disclosure in litigation.
Beginning in 2018, Pennsylvania courts have
applied a narrower interpretation of the peer review
privilege. Although Pennsylvania law still provides
ample room for medical providers to engage in
protected peer review activities, it is important to be
aware of these recent decisions, and use them as a
roadmap.

Reginelli v. Boggs
In 2018, the Pennsylvania Supreme Court issued
a landmark decision, in the case of Reginelli v. Boggs.3
Reginelli involved allegations that an emergency room physician
failed to diagnose an emergent heart condition, and discharged the
patient without proper treatment. During discovery, the plaintiff
requested production of the defendant physician's "performance
file," that was prepared and maintained by the Director of the
Emergency Department. The defendants claimed that the
performance file was protected by the peer review privilege.
On appeal, the Pennsylvania Supreme Court held that the
PRPA was inapplicable, and ordered production of the doctor's
performance file. In its decision, the Court recognized several
important limitations to the peer review privilege, under the
PRPA.
First, the Court indicated that the PRPA only protects "peer
review" conducted by a "review committee" that consists of
multiple individuals. Since the "performance file" was prepared
by an individual physician, independent from the hospital's formal
peer review committee, the file was not protected from discovery.
Second, the Court ruled that the PRPA only protects peer
review conducted by licensed health care providers.
In Reginelli, the hospital contracted with an outside entity
to provide staffing and administrative services for its Emergency
Department. Although the outside entity employed physicians,
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