Delaware County Medical Society Summer/Fall 2020 - 24

FEATURE
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."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

22 DELAWARE COUNTY MEDICINE & HEALTH

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.

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).

summer/fall 2020



Delaware County Medical Society Summer/Fall 2020

Table of Contents for the Digital Edition of Delaware County Medical Society Summer/Fall 2020

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https://www.nxtbook.com/hoffmann/delcomed/DelawareMedicalSocietySummerFall2020
https://www.nxtbook.com/hoffmann/delcomed/DelawareMedicalSocietySpring2020
https://www.nxtbook.com/hoffmann/delcomed/DelawareMedicalSocietyFall2019
https://www.nxtbook.com/hoffmann/delcomed/LivingwithLossfromAddiction
https://www.nxtbook.com/hoffmann/delcomed/DelcoMedicalSocietySummer2019
https://www.nxtbook.com/hoffmann/delcomed/DelawareCountyMedicalSocietySpring2019
https://www.nxtbook.com/hoffmann/delcomed/DelawareCountyMedicalSocietyWinter2019
https://www.nxtbook.com/hoffmann/delcomed/DelawareCountyMedicalSocietyFall2018
https://www.nxtbook.com/hoffmann/delcomed/DelawareCountyMedicalSocietySummer2018
https://www.nxtbook.com/hoffmann/delcomed/DelcoMedicalSocietySpring2018
https://www.nxtbook.com/hoffmann/delcomed/DelcoMedicalSociety
https://www.nxtbook.com/hoffmann/delcomed/DelawareCountyMedicalSocietyWinter2017
https://www.nxtbook.com/hoffmann/delcomed/DelawareCountyMedicalSocietyFall2017
https://www.nxtbook.com/hoffmann/delcomed/DelawareCountyMedicalSocietySpring2017A
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