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Pennsylvania Superior Court decision: Further deterioration of the peer review privilege

In Leadbitter, J. v. Keystone Anesthesia v. Petraglia1 (Leadbitter), the Pennsylvania Superior Court (Superior Court) further eroded the evidentiary privilege afforded by the Peer Review Protection Act (PRPA).2 Over the last several years, the protection offered to the proceedings and records of a review committee has been whittled down by a series of cases that are inapposite.

Statutory background. The Pennsylvania General Assembly’s goal in passing PRPA was “to serve the legitimate purpose of maintaining high professional standards in the medical practice for the protection of patients and the general public.” The General Assembly determined 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.” The statute 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. …”

Case background. In Leadbitter, the plaintiff’s attorney sought to compel St. Clair Hospital to produce the “unredacted credentialing file” of the defendant, Dr. Carmen Petraglia. All of the remaining undisclosed documents in the credentialing file were, as the Superior Court determined, “peer review” documents protected by PRPA. Nevertheless, the Superior Court stated that it was compelled to follow the analysis of the Pennsylvania Supreme Court (the Supreme Court) in Reginelli v. Boggs,3 (Reginelli).

In Reginelli, the Supreme Court addressed a situation in which an individual, a physician employee of a staffing company, reviewed the performance of another physician employee, Dr. Boggs. The Supreme Court ruled that the lone physician reviewer was not a “review committee” and, therefore, neither her employer nor the hospital could claim a privilege under PRPA with respect to that review, as it did not qualify as “peer review.” But the opinion went further and gratuitously stated – in a footnote – that credentialing activities were not protected by the PRPA evidentiary privilege.4

Leadbitter deals with an entirely different factual scenario. The Superior Court found that the records requested statutorily qualify as “peer review” documents. However, it followed the Reginelli imposition of a distinction between a “review organization” and a “review committee” to determine whether the documents were protected from disclosure by PRPA. Rather than making a different finding based on patent objective distinctions and allowing the issue to be determined on appeal to the Supreme Court, the Superior Court invited the Supreme Court – in a footnote – to grant allocator and address the issue directly.

Conclusion. Both Leadbitter and Reginelli have seriously undermined PRPA. The Leadbitter decision, issued in February, has pretty much flown under the radar as health providers have, understandably, been primarily engaged with the COVID-19 pandemic. No legislation has overturned Reginelli and its progeny. It is time for that to change.

DISCLAIMER: This article is for informational purposes only and does not constitute legal advice. You should contact your attorney to obtain advice with respect to your specific issue or problem.

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