# Leadbitter v. Keystone; Apl: St. Clair Hosp

> Supreme Court of Pennsylvania · August 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10747020

## Case

- **Court:** Supreme Court of Pennsylvania
- **Decided:** August 17, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Wecht, David N.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10747020

## How later opinions describe it (automated extraction)

- applying the evidentiary privilege to credentialing documents

## Opinion text

[J-7-2021] [MO: Saylor, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT

JAMES E. LEADBITTER AND TAMMY M. : No. 19 WAP 2020
LEADBITTER, HIS WIFE :
: Appeal from the Order of the
: Superior Court entered February 12,
v. : 2020 at No. 1414 WDA 2018,
: affirming the Order of the Court of
: Common Pleas of Allegheny County
KEYSTONE ANESTHESIA : entered September 17, 2018 at No.
CONSULTANTS, LTD., A CORPORATION, : G.D. 16-10700.
CHRISTOPHER MERCK, D.O., AJOY :
KATARI, M.D., JOHN P. WELDON, M.D., : ARGUED: March 9, 2021
LAURA V. MCNEILL, M.D., AND ST. CLAIR :
HOSPITAL :
:
:
v. :
:
:
CARMEN PETRAGLIA, M.D. AND SOUTH :
HILLS ORTHOPAEDIC SURGERY :
ASSOCIATES, A CORPORATION :
:
:
APPEAL OF: ST. CLAIR HOSPITAL :

CONCURRING OPINION

JUSTICE WECHT DECIDED: AUGUST 17, 2021

It took just over three years for the difficulty I anticipated in Reginelli v. Boggs1 to

come into focus, as cases highlighting my concern completed the long journey to this

1 See 181 A.3d 293, 308 (Pa. 2018) (Wecht, J., dissenting).
Court. In Reginelli, a divided Court found in the Peer Review Protection Act2 a dispositive

distinction between “review organizations” and “peer review committees” under the Act,

despite the fact that the General Assembly saw fit to define only the former term and used

them side by side without consistent distinction throughout the Act. In this case, the

Majority clarifies that resolving whether the PRPA’s confidentiality provision applies in a

given case should be driven by whether peer review has occurred, rather than by the

nomenclature or by any one function of the health care provider conducting the review.

With that much I agree. I also join in the Majority’s disposition.3 But I cannot support the

Majority’s attempt to reconcile today’s holding with Reginelli’s involuted and ultimately

unconvincing analysis. That endeavor, though salutary in its intent, only highlights

Reginelli’s flaws.

The Majority in this case does a fine job of reviewing why the General Assembly

deemed professional peer review so essential as to protect its participants at the limited

expense of “the search for truth.”4 No one is better positioned to evaluate the competency

2 Act of July 20, 1974, P.L. 564, No. 193, as amended, 63 P.S. §§ 425.1-425.4
(hereinafter the “PRPA” or the “Act”).
3 I join the Majority’s analysis and holding regarding the scope of the disclosure
limitations imposed by the federal Health Care Quality Improvement Act. Notably, the
PRPA similarly distinguishes between confidential peer review materials and proceedings
and the documents and information maintained in private hands from which such
materials and proceedings may draw. See 63 P.S. § 425.4 (providing 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”).
4 Commonwealth v. Stewart, 690 A.2d 195, 197 (Pa. 1997) (“[E]xceptions to the
demand for every man’s evidence are not lightly created nor expansively construed, for
they are in derogation of the search for truth.”).

[J-7-2021] [MO: Saylor, J.] - 2
and performance of experts in health care-related disciplines than their peers. To ensure

the candor necessary to that process, reporting professionals must be protected from

adverse consequences arising from the rendering of negative assessments, the risks of

which could diminish individuals’ willingness to offer such assessments. To that end, the

Act erects a veil of silence around peer review proceedings.5

In Reginelli, the Court tore a hole in this veil for activities it described as

“credentialing,” and for groups that it dubbed “review organizations” but not “review

committees.” I discussed my concerns in that case at length, but my view did not prevail.6

I write separately today not to relitigate that dispute. Nevertheless, to understand my

difficulty with the Majority’s necessarily contrived effort to reconcile Reginelli with the

Court’s decision in this case, it is necessary first to revisit aspects of the competing views

that divided the Court in Reginelli.

The Act seeks to protect the people who conduct or contribute to peer review in

two sections. The first immunizes from civil or criminal liability any “person providing

information to any review organization” unless the informant knew or had reason to know

that the information was false or the information is “unrelated to the performance of the

duties and functions of such review organization.”7 The second, which was the focus of

both Reginelli and the instant case, protects peer review records from discovery in civil

litigation:

5 See Maj. Op. at 6-8.
6 See Reginelli, 181 A.3d at 308 (Wecht, J., dissenting).
7 63 P.S. § 425.3(a) (emphasis added).

[J-7-2021] [MO: Saylor, J.] - 3
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 . . . .8

Both of these must be viewed relative to the unitary purpose they were crafted to serve.

By dint of the General Assembly’s own choice of words, the Bill that became the

PRPA was entitled “An Act providing for the increased use of peer review groups by giving

protection to individuals and data who report to any group.”9 Peer review being the entire

discernible reason for the PRPA’s existence, the Act must be read against, and

constrained by, the statutory definition of “peer review,” which provides, in relevant part:

“Peer review” means the procedure for evaluation by professional health
care providers of the quality and efficiency of services ordered or performed
by other professional health care providers, including practice analysis,
inpatient hospital and extended care facility utilization review, medical audit,
ambulatory care review, claims review, and the compliance of a hospital,
nursing home or convalescent home or other health care facility operated
by a professional health care provider with the standards set by an
association of health care providers and with applicable laws, rules and
regulations. . . .10

This definition focuses upon the activity it describes. The provision restricts who may

perform that task to “professional health care providers,” and confines the protected

activity to the evaluation of “the quality and efficiency of services ordered or performed.”

But viewed in their full statutory context, these limitations are notable for their lengthy,

non-exclusive lists of individuals and activities that qualify for protection.

8 Id. § 425.4.
9 Id. § 425.1, Hist. & Stat. Notes.
10 Id. § 425.2.

[J-7-2021] [MO: Saylor, J.] - 4
In particular, the broad definition of professional health care providers signals the

General Assembly’s intention to encompass all aspects of health care delivered—for both

people and animals. The list includes, but is by no means limited to, “individuals or

organizations who are approved, licensed or otherwise regulated to practice or operate

in the health care field under the laws of the Commonwealth, including . . . a

physician; . . . a pharmacist; . . . a corporation or other organization operating a hospital,

nursing or convalescent home or other health care facility;” an administrator of such a

facility; and Pennsylvania-licensed veterinarians.11

In the aspects of the decision that bear upon the case now before us, the Reginelli

Court considered whether the records of an individual reviewing a physician practicing

under her charge qualified for the Act’s evidentiary privilege. In answering “No,” the Court

did not begin with the definition of peer review, but rather searched for a comprehensive

interpretation of the Act’s statutory definition of “review organization,” implying the

interpretive posture that peer review is defined primarily by who does it rather than

primarily by what is done.

First, the text of the definition that Reginelli sought to unpack:

“Review organization” means [1] any committee engaging in peer review,
including a hospital utilization review committee, a hospital tissue
committee, a health insurance review committee, a hospital plan
corporation review committee, a professional health service plan review
committee, a dental review committee, a physicians’ advisory committee, a
veterinary review committee, a nursing advisory committee, and any
committee established pursuant to the medical assistance program, and
any committee established by one or more State or local professional
societies, to gather and review information relating to the care and treatment
of patients for the purposes of (i) evaluating and improving the quality of
health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing
and enforcing guidelines designed to keep within reasonable bounds the

11 Id.

[J-7-2021] [MO: Saylor, J.] - 5
cost of health care. [2] It shall also mean any hospital board, committee or
individual reviewing the professional qualifications or activities of its medical
staff or applicants for admission thereto. [3] It shall also mean a committee
of an association of professional health care providers reviewing the
operation of hospitals, nursing homes, convalescent homes or other health
care facilities.12

The Reginelli Court, maintaining that the plain language of the PRPA compelled

its analysis, began with a tautology: “[T]he PRPA does not use the terms ‘committee’ and

‘individual’ interchangeably . . . as they connote distinct types of entities under the

PRPA.”13 The Court elaborated:

The first sentence of the definition of “review” organization defines the type
of entity that constitutes a “review committee,” namely, “any committee
engaging in peer review.” The second sentence, in contrast, contains no
reference to peer review, and instead refers to a “hospital board, committee
or individual” involved in the review of “the professional qualifications or
activities of its medical staff or applicants thereto by a “hospital board,
committee or individual.” This second category of “review organizations”
does not involve peer review, as that term is defined in the PRPA, which is
limited to the evaluation of the “quality and efficiency of services ordered or
performed” by a professional health care provider. Review of a physician’s
credentials[14] for purposes of membership (or continued membership) on a
hospital’s medical staff is markedly different from reviewing the “quality and

12 Id. The other terms defined are “professional health care provider” and
“professional society.”
13 Reginelli, 181 A.3d at 305.
14 To its description of the import of the second sentence, the Reginelli Court
appended a footnote that has since proved consequential, in which it explained its narrow
account of what that sentence referred to:

Professional “qualifications” would include, for instance, a physician’s
continuing maintenance of his or her board certifications, and “activities”
could include clinical research initiatives, continuing education, service on
professional committees or organizations and, more broadly speaking,
other qualifications deemed necessary by the hospital. Credentials review
permits a hospital to retain, and then maintain, a medical staff of quality
professionals.
Id. at 305 n.10.

[J-7-2021] [MO: Saylor, J.] - 6
efficiency of services 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” 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 425.4.15

But this analysis stumbles out of the gate.

For one thing, the first sentence of the definition does not “define[] the type of entity

that constitutes a ‘review committee.’” Conspicuously absent from Section 425.2 and the

definition of review organization is any definition of a “review committee,” although that

term recurs throughout the definition of review organization. Thus, a review organization

(not a review committee, as the Reginelli Court maintained) is defined first as “any

committee engaging in peer review.” But the General Assembly broadened that

description still more by two additional categories, neither of which specifically refers to

“peer review” nor excludes the term. Had the General Assembly intended otherwise, the

definition would not be buried in the definition of review organization to be unearthed by

this Court at some remote future time. At the very least, the legislature would have made

it plainer that it deliberately embedded a critical definition inside another definition rather

than defining it separately in the same definitional section.

As for the second sentence of the definition, which the Reginelli Court concluded

described individuals and groups disqualified from the evidentiary privilege, while it may

15 Id. at 305-06 (cleaned up; footnotes omitted). Although the Reginelli Court did not
analyze separately the definition’s third sentence, its reasoning appears to require that
“reviewing the operation of hospitals, nursing homes, convalescent homes or other health
care facilities” also cannot include reviewing the “quality and efficiency of services ordered
or performed” by a professional health care provider. Because it allows for an
“association” as well as a “committee,” i.e., a mere review organization which cannot
perform peer review in the relevant sense, its proceedings would be discoverable.

[J-7-2021] [MO: Saylor, J.] - 7
not mention “peer review” as such, it also does not expressly describe the act of

“credentialing.” Yet the Reginelli Court strictly limited the scope of the “professional

qualifications or activities” actually described by the statutory text, terms that are not so

bound by their “common and approved usage,”16 to credentialing. Thus, what the

Reginelli Court called “plain” it in fact assumed—that “reviewing the professional

qualifications or activities of its medical staff or applicants for admission thereto” did not,

in the General Assembly’s conception, entail peer review, or indeed anything but

credentialing as narrowly defined in Reginelli. But the statute neither limits these two

broad terms to a rote “credentialing” process nor does it suggest that credentialing cannot

under any circumstances entail “reviewing . . . professional qualifications and activities of

its medical staff or applicants.” Moreover, as I highlighted in dissent, Reginelli’s

characterization of whom or what that sentence describes depends upon the premise that

the term “activities,” also undefined, is constrained by, rather than supplemental to,

professional qualifications qua credentials, and specifically that a health care provider’s

“professional . . . activities” cannot refer to “clinical services ordered or performed.”17 That

16 1 Pa.C.S. § 1903(a) (“Words and phrases shall be construed according to rules of
grammar and according to their common and approved usage . . . .”).
17 In an effort to give separate meaning to “activities,” the Reginelli Court offered that
such activities “could include clinical research initiatives, continuing education, service on
professional committees or organizations and, more broadly speaking, other
qualifications deemed necessary by the hospital.” Reginelli, 181 A.3d at 305 n.10. As I
explained in dissent, “[n]o ‘activity’ is more tied to a health care provider’s profession than
the delivery of care.” See id. at 314 (Wecht, J., dissenting). If “activities” has its broader,
common meaning, the wording suggests merely that qualifications for a (re)applicant’s
admission encompass not only objective credentials but also the various metrics
described in the definition of peer review—whether in furtherance of granting clinical
privileges, as in this case, or otherwise. See, e.g., active, activity, OXFORD ENGLISH
DICTIONARY 129-131 (2d ed. 1989) (offering definitions of the words activity and activities

[J-7-2021] [MO: Saylor, J.] - 8
premise finds no compelling support in the encompassing text of the definition, and it is

at odds with common usages of the words in question.

In positing that some professional health care providers who are engaged in

reviewing their peers’ performance, alone or in concert, are not entitled to Section 425.4’s

privilege, and that individuals can never qualify at all, the Reginelli Court held that only

review committees, not peer review itself, constitute the class protected by the evidentiary

privilege. But the statute says no such thing. Further, evidence abounds that the General

Assembly intended no such thing, including the PRPA’s repeated allusion to “individuals”

in both the definition of peer review itself as well as in the definition of professional health

care provider, a term relevant in the PRPA only insofar as it adds substance to the

definition of peer review itself. As noted, the title of the Act refers to individuals and

groups, not committees.18 Moreover, Section 425.4’s full title, “Confidentiality of a review

organization’s records,” likewise makes no reference to committees.19

Reginelli explained none of this away. It did not even acknowledge the Act’s title,

nor did it reproduce the full title of Section 425.4 anywhere in its opinion. Its closest

approach was a brief acknowledgement in a footnote that the title of Section 425.4

too lengthy and numerous to recite, none of which even hints at a limitation to the Reginelli
Court’s narrow account of credentialing).
18 “The title and preamble of a statute may be considered in the construction
thereof. . . . The headings prefixed to titles, parts, articles, chapters, sections and other
divisions of a statute shall not be considered to control but may be used to aid in the
construction thereof.” 1 Pa.C.S. § 1924.
19 See 63 P.S. § 425.4.

[J-7-2021] [MO: Saylor, J.] - 9
“contains a reference to ‘review organizations,’”20 but the Reginelli Court insisted that its

analysis was bound by the statute’s plain language. Consequently, the Reginelli Court

adverted to the principle that statutory titles “shall not be considered to control,” and “will

have no effect when the statutory language is unambiguous and thus [is] not in need of

construction.”21 This is true as far as it goes, but it goes nowhere unless the statutory

language is unambiguous. The legacy of pre-Reginelli decisions that interpreted the Act

differently,22 as well as the division among the Justices in Reginelli, suggest otherwise.

20 Reginelli, 181 A.3d at 305 n.12.
21 Id.
22 See, e.g., Troescher v. Grody, 869 A.2d 1014 (Pa. Super. 2005) (applying the
evidentiary privilege to credentialing documents). In an earlier case under the Act, the
Superior Court found the Act ambiguous, and thus resorted, inter alia, to consideration of
the Act’s title and legislative history.
Our task of ascertaining the intent of the legislature is hampered by the fact
that minimal legislative history regarding the [PRPA] was recorded prior to
its enactment in 1974. Furthermore, only one appellate decision has
attempted to interpret the Act, and no cases have construed the exclusion
provision which is at issue in the case at bar. However, we are not entirely
without guideposts to aid us in our task. The words prefacing the Act
provide evidence of a general legislative intent to preserve confidentiality:
“[p]roviding for the increased use of peer review groups by giving protection
to individuals and data who report to any review group.” H.B. 1729, Act of
July 20, 1974, P.L. 564, No. 193. “The purpose of the bill is to provide
protection to those persons who give testimony to peer review
organizations.” Hearing on H.B. No. 1729, 158 Pa.Legis.J.—House at 4438
(1974) (Statement of Representative Wells). “Through these immunity and
confidentiality provisions [§§ 425.3, 425.4] . . . the Legislature has sought
to foster free and frank discussion by review organizations.” Steel v.
Weisberg, 500 A.2d 428, 430 (Pa. Super. 1985).

Steel v. Weisberg, 534 A.2d 814, 818 (Pa. Super. 1987) (citation modified).

[J-7-2021] [MO: Saylor, J.] - 10
Today’s Majority is hoisted upon the same petard, even though it never quite cites

or echoes Reginelli’s problematic contention that the language of the statute is plain and

unambiguous. Like Reginelli, the Majority rejects the suggestion that the title of

Section 425.4 is material to the analysis, implicitly depending upon Reginelli’s conclusion

that the language of the statute unambiguously requires that we impose a critical

distinction between review organizations and review committees, even if doing so risks

leaving worthy peer reviewers without the protection necessary to ensure their candor.23

The Majority also concedes that “the substantive text does not align with the title,” and

that, “[p]articularly as ‘review committee’ is not a defined term, Section [425.4’s] use of

this phrase gives rise to interpretive difficulties.”24 Yet rather than view this as evidence

that Reginelli’s judicially-imposed distinction is unworkable, or at least at odds with

legislative intent, the Majority falls back on the Reginelli Court’s bald conclusions without

subscribing to its reasoning, explaining that “it would be improper for this Court to resolve

such difficulties by assuming the text was intended to apply to review organizations as a

whole.”25

Even more confusingly, the Majority cites the familiar principle that we may not

rewrite a statute’s text “under the guise of statutory construction.”26 But the only way this

Court can preserve Reginelli is to write out of the statute the broad language of its titles

23 See Maj. Op. at 9 (“Although [Section 425.4’s] title suggests it pertains to review
organizations, the substantive text sets forth confidentiality mandates and testimonial
privileges relating to the work and records of review committees.”) (emphasis in original;
footnote omitted).
24 Id. at 20 n.15.
25 Id.
26 Id. (citing Burke v. Independence Blue Cross, 103 A.3d 1267, 1274 (Pa. 2014)).

[J-7-2021] [MO: Saylor, J.] - 11
and definitions while maintaining that the language written into the Act by Reginelli

somehow lurked in the shadows of the text the legislature actually gave us all along. On

this account, the General Assembly meant nothing by its various uses of review group,

review organization, and review committee because it evidently defined (albeit indirectly)

review committee so as to strip the uses of review group and organization of any tangible

meaning.

It is, of course, to be preferred when the legislature brings clarity to important

questions of policy that lend themselves to a nuanced balancing of competing interests—

here, between protecting the courts’ desire to decide cases based with the benefit of all

relevant evidence and ensuring that highly-trained health care professionals with

specialized skills candidly police the effectiveness and integrity of their peers. But the

PRPA’s language simply is not plain, at least not as it pertains to the matter at hand, and

I am hardly the first interlocutor to say so.27 When divining a clear, unitary expression of

intent in the text itself becomes aspirational and tortuous is when we must accept that the

General Assembly simply failed to produce a statute that compels a particular, narrow

reading. As regrettable as that may be, to stretch and supplement the text until it yields

the illusion of clarity so as to avoid acknowledging that the statute just isn’t clear enough

to instill confidence in any one interpretation does no service to our overarching obligation

to effectuate legislative intent with whatever tools we must employ to identify it.

27 Cf. Young v. W. Pa. Hosp., 722 A.2d 153, 156 (Pa. Super. 1998) (“Courts
throughout this state have been cautious and wary in their interpretation of the language
of the [PRPA], preferring to adopt a relatively strict interpretation . . . . The varied factual
circumstances and the resulting almost contradictory case law interpreting the [PRPA]
serves to further confuse the bar as to the proper interpretation and application of the
statute.”).

[J-7-2021] [MO: Saylor, J.] - 12
So the PRPA is ambiguous.28 Confronted with an ambiguous statute, we gain

access to a panoply of interpretive tools designed for precisely that circumstance. In

particular, we presume that the legislature did not intend an absurd or unreasonable

result—such as rendering it ineffectual relative to its clear purpose.29 Had the General

Assembly intended the PRPA’s liability and disclosure protections to apply according to

Reginelli’s esoteric calculations, it could have drafted the statute more concisely to that

effect. And while it is true that we must interpret evidentiary privileges strictly, that time-

honored principle is no warrant to artificially straiten a privilege that the General Assembly

made expansive by design to achieve a particular aim.

The indisputable object of the PRPA is to ensure that no personal or professional

risks to professional health care providers who contribute to the peer review process be

allowed to deter them from doing so. The inextricably intertwined mechanisms that the

legislature deemed essential to this task were confidentiality and a liability shield. It is

exceedingly difficult to imagine how the omission of either is consistent with the General

Assembly’s objective. The Reginelli Court responded that we can give effect to a

definition of review organization that fully encompasses, but is broader than, the inferred

definition of review committee. To that end, the Court concluded that those review

28 See Grimes v. Enter. Leasing Co. of Phila., 105 A.3d 1188, 1193 (Pa. 2014)
(“Statutory text is ambiguous if it is susceptible to two or more reasonable
interpretations.”).
29 See Bowling v. Office of Open Records, 75 A.3d 453, 466 (Pa. 2013) (“When [the]
words of a statute are . . . ambiguous, a reviewing court looks to other principles of
statutory construction, among them: the occasion and necessity for the statute; the
circumstances under which the statute was enacted; the mischief to be remedied; the
object to be attained; [and] the consequences of a particular interpretation.”).

[J-7-2021] [MO: Saylor, J.] - 13
organizations that do not qualify as review committees shielded by the evidentiary

privilege nonetheless are entitled to the liability protections identified in Section 425.3,

which, unlike the evidentiary privilege, speaks primarily in terms of “organizations” rather

than committees.30 But it is inconsistent with the Act’s design to assure reporting

professionals that they won’t be liable for what they report, when the risk remains that

they will be called to account, and their identities revealed, in open court, with the

attendant risk of adverse professional consequences.31 The result isn’t a belt without

suspenders. It’s a hat with no shoes.

Taking a step forward, today’s Majority shifts the lower courts’ focus away from the

grammatical exercise of Reginelli in favor of a functional focus upon peer review itself,

turning attention away from the who and toward the what that the General Assembly

endeavored to protect. But Reginelli resists this change of perspective. Unequivocally,

the Reginelli Court held that “[r]eview of a physician’s credentials for purposes of

membership (or continued membership) on a hospital’s medical staff is markedly different

30 That Section 425.3’s liability protections are stated in terms of individuals can best
be understood as a function of the fact that unincorporated review organizations, as such,
would not appear to be at risk of direct legal consequence. Thus, the only concern with
such groups relevant to ensuring effective peer review involves disclosure of records in
their possession. And since it is not at all clear how such groups—again, as such—might
suffer adverse professional consequences from their activities (since they are probably
not looking for jobs), the evidentiary privilege that protects their records can only
meaningfully protect individuals. To deny either is to leave the reporting professionals
critically exposed, thereby eroding the effectiveness of peer review in general.
31 It also raises a separate question as to why the General Assembly would concern
itself with the risk of civil liability to an applicant if the only work of the “organization” in
question was its assessment of whether an applicant’s account of his own education,
board certifications, and the like was true. What are the odds that an applicant denied
admission or privileges for a misrepresentation on one of these matters would have any
practical basis to sue over the denial?

[J-7-2021] [MO: Saylor, J.] - 14
from reviewing the ‘quality and efficiency of services ordered or performed by a physician

when treating patients.”32 And with that, it effectively closed the door to recognizing

privileging as a task intertwined with credentialing that evades Reginelli’s unqualified

exclusion of credentialing from the Act’s evidentiary privilege.

If that were not enough to confirm Reginelli’s irreconcilability with today’s decision,

further evidence is found in Reginelli’s express disapproval of the Superior Court’s

decision in Dodson v. DeLeo.33 In Dodson, the sole passage that could have invited the

Reginelli Court’s disapproval was that in which the court held—for at least the second

time, and precisely as we do in this case—that “[d]ocuments used in the determination of

staff privileges are exactly the type of documents the legislature contemplated when

drafting the Peer Review Protection Act. Granting, limiting, or revoking staff privileges is

one of the strongest tools the medical profession uses to police itself.”34 Since only that

passage can be read as having anything to do with “credentialing” as Reginelli conceived

it, that means the Court found no material distinction between privileging and

credentialing under Section 425.4. To stand with Reginelli’s disapproval of Dodson, then,

is to stand against the Majority’s analysis in this case, which shares Dodson’s salutary

view of privileging, peer review, and the importance of the evidentiary privilege to both.

In recalibrating the relevant inquiry, today’s Majority at least cracks the door that

Reginelli slammed shut, and that reflects an improvement upon the status quo. But

having taken those two steps forward, the Court takes one step back when it insists that

32 Reginelli, 181 A.3d at 305 (emphasis added).
33 872 A.2d 1237 (Pa. Super. 2005); see Reginelli, 181 A.3d at 306 n.13.
34 Dodson, 872 A.2d at 1242 (quoting Young, 722 A.2d at 156).

[J-7-2021] [MO: Saylor, J.] - 15
it can reshape how courts approach the PRPA in this fashion while honoring Reginelli’s

clearly incompatible approach. This only ensures that the confusion and discomfort with

Reginelli’s prescriptive approach that the lower courts have expressed in the years since

the Court issued the decision35 will persist.

35 See, e.g., Leadbitter, 229 A.3d 292, 297 (Pa. Super. 2020) (“Although the
professional evaluations of Dr. Petraglia reviewed by the credentialing committee are
different from the type of documents that the Supreme Court considered [to be
credentialing documents] in Reginelli, the Supreme Court’s analysis still requires us to
focus on the type of organization that is reviewing the professional evaluations, not
whether the documents meet the definition of peer review documents.”); Estate of Krappa
v. Lyons, 211 A.3d 869 (Pa. Super. 2019), appeal denied, 222 A.3d 372 (Pa. 2019) (per
curiam). Although I joined the Court’s denial of review in Krappa, I wrote separately to
observe that a more suitable case challenging the bright-line approach the Reginelli Court
relied upon was sure to arise, because the difference between what the Majority
characterized as credentialing and what the Act defines as peer review “will prove more
difficult to discern in practice than it is to describe in the pages of a judicial opinion.”
Krappa, 222 A.3d at 374 (Wecht, J., concurring). Here we are.

[J-7-2021] [MO: Saylor, J.] - 16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10747020. Public record. Not legal advice.