Morrissey v. GCMC Geisinger Cmty. Med. Ctr., 3:19-CV-894

RALPH MORRISSEY, as Executor of the Estate of Kathleen Healya/k/a Kathleen Morrissey, deceased, et al., Plaintiffs, v. GCMC GEISINGER COMMUNITY MEDICAL CENTER, et al., Defendants.

3:19-CV-894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

November 20, 2020

(JUDGE MARIANI)

MEMORANDUM AND ORDER

Presently before the Court is a discovery dispute between Plaintiff and Defendant Geisinger Community Medical Center (hereinafter "Geisinger").

On September 25, 2020, Plaintiff filed a letter with the Court explaining he had received Privilege Logs from Geisinger but that "a discovery issue has arisen as a result of the materials received from Defendant Geisinger" and specifically that the "Privilege Logs that were provided contain multiple redactions and documents that are being withheld pursuant to the Peer Review Production Act 63 P.S. § 425.1 et seq." and asserting that "these materials are in fact discoverable." (Doc. 53). Plaintiff attached the following two Privilege Logs: (1) Privilege/Discovery Log for M&M Materials; and (2) Privilege/Discovery Log for Credentialing File for [Defendant] Haitham Abughnia, M.D. (Doc. 53, at 2-6).

The Court held a conference call to address Plaintiff's letter, and Defendant Geisinger's response thereto (Doc. 56), on October 19, 2020. After hearing the parties' arguments, and upon agreement by counsel, the Court agreed to conduct an in camera review of the pages in dispute. During the conference call, the parties confirmed that the following pages of the Privilege Logs were at issue:

1. Privilege/Discovery Log for M&M Materials:

a. "Cardiovascular Peer Review M&M Minutes" (1 page)

b. "Medical Staff Peer Review Case Rating Form" (3 pages)

c. "C-CMC Heart and Vascular Institute Peer Review Powerpoint" (15 pages)

2. Privilege/Discovery Log for Credentialing File for Haitham Abughnia, M.D.:¹

a. "NPDB Request" (page 176)

b. "Reappointment Quality Check" (pages 210-214)

c. "Reappointment Data Sheet" (page 227)

By letter dated October 20, 2020, Defendant Geisinger provided the Court with the afore-listed documents in dispute. Defendant asserts that these documents are "clearly protected by the Pennsylvania Peer Review Protection Act." (Doc. 56, at 1).²

The Pennsylvania Peer Review Protection Act ("PRPA") "provides a narrow evidentiary privilege to protect the 'proceedings and documents of a review committee' conducting peer review activities by professional health care providers in conformity with its provisions." Reginelli v. Boggs, 181 A.3d 293, 296 (Pa. 2018). The statute "represents a determination by the legislature 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." Joe v. Prison Health Servs., Inc., 782 A.2d 24, 32 (Pa. Cmmw. Ct. 2001).

Thus, pursuant to the PRPA,

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 and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or used in any such civil action merely because they were presented during proceedings of such committee. . .

63 P.S. § 425.4.

The Court first turns to the documents and information at issue in Geisinger's Privilege/Discovery Log for Credentialing File for Haitham Abughnia, M.D.

The PRPA's "evidentiary privilege is reserved only for the 'proceedings and documents of a review committee.'" Reginelli, 181 A.3d at 304 (quoting 63 P.S. § 425.4). As further explained by the Pennsylvania Supreme Court,

Review of a physician's credentials for purposes of membership (or continued membership) on a hospital's medical staff is markedly different from reviewing the "quality and efficiency of service ordered or performed" by a physician when treating patients. Accordingly, although "individuals reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto," 63 P.S. § 425.2, are defined as a type of "review organization," such individuals are not "review committees" entitled to claim the PRPA's evidentiary privilege in its section 425.4.

Id. at 305-306. See also, Estate of Krappa v. Lyons, 211 A.3d 869, 875 (Pa. Super. Ct. 2019) (where the files at issue consist entirely of credentialing materials, the "PRPA's protections do not extend to the credentialing committee's materials, because this entity does not qualify as a 'review committee,'" citing Reginelli).

Nonetheless, Pennsylvania courts have repeatedly held that disclosure of information contained within National Practitioner Data Bank ("NPDB") reports is prohibited pursuant to the PRPA and federal statute.³ See e.g., Jacksonian v. Temple Univ. Health Sys. Found., 862 A.2d 1275, 1280 (Pa. Super. Ct. 2004) ("The statutes on which [Defendant] relies prohibit only the disclosure of the information contained in the Data Bank. See 42 U.S.C. § 11137(b)(1); 63 P.S. § 425.4. These statutes in no way imply that a hospital cannot disclose whether it made inquiries to the Data Bank, or why it did not make inquiries.") (emphasis in original). In addition, although Plaintiff relies on Leadbitter v. Keystone Anesthesia Consultants, Ltd., 229 A.3d 292 (Pa. Super. Ct. 2020) to support the argument that data bank reporting information is not privileged, that case is of questionable value here. This is sobecause the Pennsylvania Supreme Court has accepted the petition for allowance of appeal in that action, specifically as to the issues of whether the lower court erred in ordering "the production of acknowledged 'peer review documents' solely because they were maintained in a physician's credentialing file", in violation of the PRPA, and whether the lower court's holding also "directly conflicts with the Federal Healthcare Quality improvement Act, 42 U.S.C. § 11137(B)(1), and federal regulations which protect from disclosure, responses to statutorily-required inquiries of the national practitioner data bank, by ordering the production of such documents solely because they were maintained in physician's credentialing file." See Leadbitter v. Keystone Anesthesia Consultants, Ltd., 2020 WL 5524849 (Pa. 2020) (per curiam order granting petition for allowance of appeal).

Here, the "NPDB Request" (p. 176) is unambiguously a response generated by the Data Bank, containing only Data Bank information. It is further undisputed that the only redacted information at issue in pages 210-214 and 227 is data bank reporting information. Such information is likewise protected by the privilege created by the PRPA under state law. The case law supports the conclusion that although the PRPA's protections do not extend to the credentialing committee's materials, the Data Bank information contained therein is subject to protection under the PRPA.

For these reasons, Plaintiff's objections relating to pages 176, 210-214, and 227 of Geisinger's Privilege/Discovery Log for Credentialing File for Haitham Abughnia, M.D. will be overruled.

With respect to the documents at issue in Geisinger's Privilege/Discovery Log for M&M Materials, the Court finds that all pages, with the exception of pages 5, 6, 7, 8, and 14 of the "G-CMC Heart and Vascular Institute Peer Review Powerpoint" are properly designated as privileged under the PRPA,

On their face, the "Cardiovascular Peer Review M&M Minutes" and "Medical Staff Peer Review Case Rating Form" clearly fall within the documents intended to be considered privileged by the PRPA. These documents are each annotated as "Peer Review Generated Document[s] Solely for Quality Improvement Purposes pursuant to 63 P.S. Section 425.1 et seq. and MCARE" and review of the documents confirms that they were intended only for the purpose of conducting peer review. Those documents plainly consist of "proceedings and records of a review committee" which arise "out of the matters which are the subject of evaluation and review by such committee", 63 P.S. § 425.4. Examination of the documents establishes that they were all created by, and for, the systems peer review committee, which was comprised of only professional health care providers as defined in 63 P.S. § 425.2, and were used by these health care providers for evaluation of the quality and efficiency of services ordered or performed by other professional health care providers involved in Mrs. Morrissey's medical care. Cf. Ungurian v. Beyzman, 232 A.3d 786, 800 (Pa. Super. Ct. 2020) (PRPA privilege did not apply to meeting minutes where the Committee included both hospital members and community members served by hospital and thus was not exclusively comprised of "professional healthcare providers."). To find that the "Cardiovascular Peer Review M&M Minutes" and "Medical Staff Peer Review Case Rating Form" are not subject tothe PRPA privilege would contravene the precise purpose for which that statute's protections were...