Central PA Medicine Winter 2021 - 12

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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. . . . "
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 practice of medicine, the
medical profession itself is in the best position
to police its own activities. " 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
12 Winter 2021 Central PA Medicine

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.
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.
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, 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 non-licensed 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.


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Central PA Medicine Winter 2021

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