Sanders v. The Children's Hosp. of Phila.

2022 PA Super 199

CHRISTIANA SANDERS AND BRYAN SANDERS, AS CO-ADMINISTRATORS OF THE ESTATE OF M.S., AND CHRISTIANA SANDERS AND BRYAN SANDERS, IN THEIR OWN RIGHT v. THE CHILDREN'S HOSPITAL OF PHILADELPHIA Appellant SHEILA LIMPREVIL, AS CO-ADMINISTRATOR OF THE ESTATE OF L.G.W., AND SHEILA LIMPREVIL, IN HER OWN RIGHT AND TERRELL WILLIAMS, AS CO-ADMINISTRATOR OF THE ESTATE OF L.G.W., AND TERRELL WILLIAMS, IN HIS OWN RIGHT v. THE CHILDREN'S HOSPITAL OF PHILADELPHIA Appellant COURTNEY GILL, AS ADMINISTRATRIX OF THE ESTATE OF T.C.G., AND COURTNEY GILL AND TERRENCE GILL, IN THEIR OWN RIGHT v. THE CHILDREN'S HOSPITAL OF PHILADELPHIA Appellant

Nos. 646 EDA 2021, 648 EDA 2021, 659 EDA 2021

No. J-A11003-22

Superior Court of Pennsylvania

November 22, 2022

Appeal from the Order Entered March 12, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No 171204286, 180802309, 180900385

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION

BOWES J.

Before us are three consolidated interlocutory appeals from orders which, inter alia, overruled the privilege objections of Children's Hospital of Philadelphia ("CHOP") to the discovery requests of the appellees (collectively "Plaintiffs"), who are the parents and estate administrators of three infants who died after contracting an adenovirus in CHOP's neonatal intensive care unit ("NICU").^[1] We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

Twenty-three infants, including Plaintiffs' decedents, contracted an adenovirus in CHOP's NICU in the late summer of 2016. CHOP's Infection Prevention & Control ("IP&C") Department became aware of the cluster of adenovirus cases on August 22, 2016. It therefore began an investigation pursuant to CHOP's IP&C Plan "to find the cause and stop the outbreak," led by Dr. Julia Sammons, CHOP's attending infectious disease physician, chair of the IP&C Committee, and a member of CHOP's Patient Safety Committee. Sammons Deposition, 10/6/20, at 40. Dr. Sammons reported to Dr. Jan Boswinkel, CHOP's designated Patient Safety Officer pursuant to the Medical Care Availability and Reduction of Error ("MCARE") Act, 40 P.S. §§ 1303.101-1303.910.

The fruits of the investigation were as follows. Dr. Sammons discovered that the common event experienced by all infected babies was a retinopathy of prematurity ("ROP") eye examination. See Sammons Deposition, 10/6/20, at 32.^[2] Subsequent testing of the equipment used in the examinations, namely a hand-held lens and an indirect ophthalmoscope that never came in contact with the patients, revealed the presence of the adenovirus. Id. at 32-35. After observing the physicians perform ROP examinations, Dr. Sammons ultimately concluded that the virus was transmitted to each of the patients by the doctor touching the contaminated equipment and then touching the babies. Id. at 38-40. Accordingly, while CHOP had no hand hygiene or equipment-specific cleaning policies for ROP examinations prior to the outbreak, CHOP instituted both hand hygiene protocols and required bleach cleaning of the equipment as a result of the investigation. Id. at 36, 123, 131.

In the process of gathering the information to make the above discoveries, conclusions, and recommendations, the following meetings occurred. Dr. Sammons reported to the Patient Safety Committee on August 25, 2016, regarding the investigation to date. The Committee requested that Dr. Sammons persist with her efforts and continue to provide updates. See Sammons Affidavit, 2/19/21, at 2-3.^[3] Between August 24 and September 6, 2016, Dr. Sammons periodically held "safety huddles" with members of the IP&C Department and with doctors and nurses in the NICU, involving the sharing of PowerPoint slides on August 24, 25, 29, 30, and 31, as well as September 2, and 6, 2016. Id. at 4-5. While these safety huddles were "frequently coordinated with the Patient Safety Officer," many of these meetings "were impromptu ad hoc meetings" outside of the established Patient Safety Committee meetings for the collection and review of data. Id. at 3; Sammons Deposition, 10/6/20, at 216. In addition to the sharing of information, the meetings involved the evaluation of the actions of professional health care providers, the quality of patient safety measures, and recommendations for new or modified patient safety methods. Id. at 3.

On September 14 and October 12, 2016, Dr. Sammons and other members of the IP&C Department reported to the IP&C Committee, utilizing PowerPoint slides. These presentations involved the evaluation of IP&C and NICU providers, discussions of possible improvements to health care quality, and suggestions for new procedures and the monitoring of compliance therewith. Id. at 6. A similar presentation, also including PowerPoint slides, was given to CHOP's Patient Safety Committee on September 22, 2016. Id.

CHOP held several Morbidity and Mortality ("M&M") conferences related to the outbreak. Specifically, on September 26, 2016, Dr. Sammons and other doctors, utilizing PowerPoint slides, presented a Patient Safety M&M at Dr. Boswinkel's request as a subcommittee of the Patient Safety Committee. Id. at 7-8. On October 4, 2016, PowerPoint presentations were made in furtherance of "peer review and improving the quality of health care" to professional health care providers at NICU and Ophthalmology M&M conferences "to evaluate the services performed by other professional health care providers, conduct practice analysis, and recommend improvements for . . . services provided to CHOP patients." Id. at 8-9. Similar programs, with slides, were presented at CHOP Ophthalmology Residents and Surgical Division Chiefs M&M conferences on October 10 and 11, 2016, respectively, as well as at the University of Pennsylvania's Scheie Eye Institute's M&M Grand Rounds Conference on January 17, 2017. Id. at 9-11.

In the meantime, CHOP's Patient Safety Committee directed a formal root cause analysis ("RCA") of the outbreak which resulted in an RCA report. That report, which was submitted to the Patient Safety Committee, summarized the gathering and evaluation of the information about the outbreak and proposed a plan for preventing another one. Id. at 11. The RCA report was presented to the Patient Safety Committee at its November 17, 2016 meeting.

Believing that the transmission of the virus through ophthalmology equipment that does not come into direct contact with the patient was a novel finding, Dr. Sammons also published an abstract and article about the outbreak. Neither utilized any of the documents created during the course of the investigation, but referenced the facts of the outbreak. Additionally, one month after the outbreak, Dr. Monte Mills, the chief of CHOP's Ophthalmology Division, and Dr. Albert Maguire, an ophthalmologist who was not part of the NICU treating team, exchanged emails concerning Dr. Maguire's desire to discuss the finding of the investigation in a paper. The subject of the email was "NICU consult hygiene/infection control."

In December 2017 and August 2018, Plaintiffs filed survival and wrongful death actions against CHOP alleging medical malpractice. Specifically, Plaintiffs contended that CHOP was negligent in failing to follow proper procedures for disinfecting the ophthalmology equipment. During the course of discovery, Plaintiffs issued discovery requests to which the above-identified documents were responsive. CHOP compiled a privilege log identifying the documents and asserting privilege. CHOP also produced affidavits from Drs. Sammons and Boswinkel asserting that the documents at issue were created at the behest of CHOP's Patient Safety Committee and Officer for purposes of complying with its obligations pursuant to the MCARE Act and "to conduct peer review." See, e.g., Boswinkel Affidavit, 2/19/21, at 6.^[4]

The trial court conducted an in camera review of the documents and entertained written argument from the parties concerning the import and consistency of the affidavits and the deposition testimony of Dr. Sammons about the context and purposes of her investigation into the outbreak. Thereafter, the trial court determined that CHOP failed to establish that certain of the documents discussed above were privileged under the Peer Review Protection Act ("PRPA") or MCARE, and ordered their production to Plaintiffs. This timely appeal followed, and both CHOP and the trial court complied with Pa.R.A.P. 1925.

CHOP presents the following two claims on appeal:

1. Whether the trial court erred and abused its discretion in concluding that a hospital failed to establish that certain documents prepared for peer review and patient safety purposes (including the hospital's Root Cause Analysis PowerPoint presentations, meeting minutes, intranet postings and emails) were protected from discovery by the [PRPA] or the [MCARE Act] where: (1) the materials were prepared in accordance with the statutes' respective requirements; (ii) the hospital identified the bases for each privilege on logs and affidavits; and (iii) the hospital protected the documents from the public disclosure?

2. Whether the trial court erred and abused its discretion in concluding that a defendant hospital waived its right to claim protection under the PRPA and MCARE simply by publishing an article and an abstract about the subject matter of documents where: (1) the article and abstract merely referenced facts from the privileged documents but did not disclose the documents themselves; (ii) nothing in any statute or common law supports a finding of waiver; and (iii) the article and abstract provided potentially lifesaving information about a novel medical finding; thus, any decision requiring

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