ChesterCountyMedicineSummer2020 - 22

www.CHESTERCMS.org

Navigating Recent Judicial Decisions on the Scope of "Peer Review Privilege" in Pennsylvania
continued from page 21
it was not itself "licensed or otherwise regulated to practice or
operate in the health care field." Therefore, the PRPA was also
found inapplicable to the performance file, because it was authored
by a supervising physician who was employed by the outside nonlicensed entity, rather than a licensed hospital.
The Court implied that if a hospital specifically contracts with
an outside entity to conduct peer review on its behalf, then it may
still be protected under the PRPA. However, in Reginelli, there
was no evidence that the performance file was generated pursuant
to a "peer review" contract with the hospital. Therefore, the Court
did not specifically decide that question.

Judicial Decisions Following Reginelli
In the wake of Reginelli, lower courts in Pennsylvania have
increasingly ordered medical facilities to produce confidential
information, related to peer review and patient safety activities.
In particular, the Superior Court of Pennsylvania has issued
two important decisions addressing the scope of the peer review
privilege in Pennsylvania.
First, in Estate of Krappa v. Lyons, decided in May 2019, the
Superior Court ruled that the PRPA does not protect records
generated by a hospital's credentialing committee.4
In Estate of Krappa, the plaintiff sought production of the
complete, unredacted, credentialing files, pertaining to two
defendant physicians. Based on the Reginelli decision, the Superior
Court ruled that the PRPA does not protect credentialing materials
from discovery, in malpractice litigation. The Court issued a broad
statement that: "The PRPA's protections do not extend to the
credentialing committee's materials, because this entity does not
qualify as a 'review committee.'"
Second, on April 28, 2020, the Superior Court issued a
decision in the case of Ungurian v. Beyzman.5 In that case, the
Court rejected a hospital's assertions of privilege, over several
categories of documents that relate to quintessential peer review
and patient safety activities.
In Ungurian, the Court's decision was primarily based on its
finding that the hospital did not provide sufficient evidence to
demonstrate that the documents qualified for protection under
the PRPA, or a related federal statute, the Patient Safety Quality
Improvement Act (PSQIA).
Most significantly, the Superior Court emphasized that "the
PRPA only applies to the observations of and materials produced
during an evaluation by 'professional health care providers.'"
In that regard, the Court ruled that the PRPA did not protect a
"Root Cause Analysis Report," or meeting minutes from a "Serious
Safety Event Rating Committee" and "Patient Safety Committee,"
because the hospital did not provide evidence showing that the
Committees were "exclusively comprised of 'professional health
care providers.'"

The Court, in Ungurian, also ruled that a "Quality
Improvement Medical Staff Peer Review" was not entitled to
protection, because it was performed by a physician whose medical
license expired in 2014. Therefore, the Court concluded that
the reviewing physician did not qualify as a licensed "professional
health care provider," within the scope of the PRPA.

Key Takeaways for Medical Providers
The recent decisions in Reginelli, Estate of Krappa, and
Ungurian have caused understandable concern among healthcare
providers in Pennsylvania. However, Pennsylvania law still
provides ample room to engage in protected peer review activities,
when done through appropriate channels.
The key takeaway is that hospitals, and other medical practices,
should have, and utilize, formal procedures and committees
for conducting true "peer review," in order to ensure that such
activities are protected under the PRPA. It is crucial for medical
providers to familiarize themselves with the recent judicial
decisions, and use those decisions as a roadmap to update their
internal procedures for conducting peer review.
For example, facilities should update their peer review policies,
to identify formal "peer review committees," with clear procedures
for conducting, and documenting, peer review activities. The
review committee's records should be separately maintained by the
committee, and only used for peer review purposes.
If hospitals, or smaller practices, wish to collaborate with
outside medical providers or entities, for peer review activities,
the relationship and procedures should be clearly documented
in writing, ideally through a formal contract. However, such
practices should be carefully navigated, until Pennsylvania courts
provide further guidance on this issue.
Finally, it is important to recognize that certain types of
materials, such as the files of a credentialing committee, may not
be protected under current case law. For purposes of the PRPA,
activities conducted by a formal peer review committee, through
formal channels and procedures, are most likely to be entitled to
an expectation of confidentiality.
It should also be noted that other statutes, such as the MCARE
Act and the PSQIA, may also protect other types of reporting,
compliance, and patient safety documentation. However, it is
important to carefully review the requirements of those statutes, to
ensure compliance with the requirements for confidentiality.
Candid peer evaluations remain essential to promoting patient
safety and quality health care in Pennsylvania. Although recent
judicial decisions have potentially limited the scope of the peer
review privilege, those decisions can be used as a roadmap to
ensure that peer review activities will be protected in the event of
litigation.
Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018).
Estate of Krappa v. Lyons, 211 A.3d 869 (Pa. Super. 2019).
5
Ungurian v. Beyzman, 2020 Pa. Super. 105 (Pa. Super. Apr. 28, 2020).
3
4

2 2 C H E S T E R C O U N T Y M e d i c i n e | S U M M E R / FA L L 2 0 2 0

http://www.chestercms.org

ChesterCountyMedicineSummer2020

Table of Contents for the Digital Edition of ChesterCountyMedicineSummer2020