Opinion

Boyle, E. v. Main Line Health

  • 2025 Pa. Super. 148
Court
Superior Court of Pennsylvania
Filed
Jul 17, 2025
Status
Published
On the bench
Lane
Cited by
1 cases
Authority
More cited than 47.8%

The opinion

J-A24017-24

2025 PA Super 148

ERIN AND STEPHEN BOYLE, : IN THE SUPERIOR COURT OF

PARENTS AND NATURAL GUARDIANS : PENNSYLVANIA

OF BB, A MINOR, AND IN THEIR :

OWN RIGHT :

:

:

v. :

:

: No. 2454 EDA 2023

MAIN LINE HEALTH, INC., MAIN LINE :

HOSPITALS, INC., MAIN LINE :

HEALTHCARE, AND SCOTT BAILEY, :

M.D. :

:

Appellants

Appeal from the Order Entered August 21, 2023

In the Court of Common Pleas of Montgomery County Civil Division at

No(s): 2019-15082

BEFORE: LAZARUS, P.J., KING, J., and LANE, J.

CONCURRING/DISSENTING OPINION BY LANE, J.: JULY 17, 2025

I agree with the learned Majority that the Main Line Defendants did not

meet their burden of establishing that the PSRS report arose out of a matter

reviewed by a patient safety committee or a governing board pursuant to their

section 311(b) MCARE Act responsibilities, and therefore concur in the

Majority’s affirmance of the trial court’s order insofar as it required the Main

Line Defendants to disclose the PSRS report. However, I disagree with the

Majority’s reversal of the portion of the trial court’s order finding that the Main

Line Defendants failed to establish that the PSQIA privilege applied to the

SBAR and PSOW documents, and respectfully dissent from that ruling. I

J-A24017-24

therefore concur in part and dissent in part from the Majority’s holdings. I

write separately to explain the basis for my dissent.

The PSQIA contains three subsections dealing with privilege; however,

only two subsections potentially apply to this matter. For privilege to attach

under subsection (i), documents must be “assembled or developed by a

provider for reporting to a patient safety organization [(“PSO”)] and are

reported to a [PSO].” 42 U.S.C. § 299b-21(7)(A)(i)(I). A second potential

PSQIA privilege is prescribed by subsection (ii), which pertains to documents

“which identify or constitute the deliberations or analysis, or identifies the fact

of reporting pursuant to, a patient safety evaluation system.” Id. § 299b-

21(7)(A)(ii).

In responding to the Boyle’s motions to compel, the Main Line

Defendants relied on subsection (i) as a basis for PSQIA privilege for the SBAR

and PSOW documents. See Objections and Responses to Motion to Compel,

3/2/23; see also Memorandum of Law in Support of Response to Motion to

Compel, 3/2/23, at 8-10; Response to Motion to Compel, 7/17/23, at 19-20;

Memorandum of Law in Support of Response to Motion to Compel, 7/17/23,

at 9-12. Thus, the trial court only considered whether the Main Line

Defendants established that the PSQIA privilege prescribed by subsection (i)

applied to the SBAR and PSOW documents. In this regard, the trial court

determined that the Main Line Defendants “failed to present evidence that the

information and documents sought by [the Boyles] were assembled or

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developed by [the Main Line Defendants] for reporting to a [PSO] or were

reported to a [PSO].” Trial Court Opinion, 2/6/24, at 7. The trial court further

determined that there was no allegation or evidence in the record that the

PSOW or SBAR documents were created for reporting to a federal PSO. See

id. Thus, the August 21, 2023 order compelling production of the SBAR and

PSOW documents, from which the Main Line Defendant’s now appeal, was

based on the trial court’s rejection of the Main Line Defendant’s singular

argument that these documents were PSQIA privileged under subsection (i).

Importantly, the Main Line Defendants did not raise subsection (ii) as

an alternate basis for PSQIA privilege of the SBAR and PSOW documents until

they retained new counsel and filed a motion for reconsideration three weeks

after the August 21, 2023 order to compel had been entered. See Motion for

Reconsideration, 9/15/23, at 32-35. Therein, the Main Line Defendants

expressly acknowledged that they had not previously raised subsection (ii) as

a basis for PSQIA privilege and had instead only relied on subsection (i). See

id. at 32.

This Court has long held that raising an issue for the first time before

the trial court in a motion for reconsideration does not preserve it for appeal.

See Stange v. Janssen Pharms., Inc., 179 A.3d 45, 64 n.7 (Pa. Super.

2018) (holding that issue raised for the first time in motion for reconsideration

to trial court was waived); see also Meyer-Chatfield Corp. v. Bank Fin.

Servs. Grp., 143 A.3d 930, 938 n.4 (Pa. Super. 2016) (same); Prince

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George Center, Inc. v. United States Gypsum Co. (In re Prudential Ins.

Co. of Am.), 704 A.2d 141, 145 (Pa. Super. 1997) (holding that issues raised

initially in a motion for reconsideration are beyond the scope of appellate

jurisdiction and declining to consider them on appeal).

Moreover, the Main Line Defendants sought to support their newly raised

argument regarding subsection (ii) with evidence that was not previously

submitted to the trial court. Namely, the Main Line Defendants appended to

their motion for reconsideration a supplemental affidavit of Patricia Walsh, and

attached as an exhibit thereto a PSES policy, neither of which were previously

submitted to the trial court in opposition to the motions to compel. See

Supplemental Affidavit of Patricia Walsh, 9/13/23, and Exhibit A thereto

(“Policy: Patient Safety Evaluation System”). In fact, the supplemental

affidavit of Ms. Walsh was executed three weeks after the trial court entered

its August 21, 2023 order granting the motion to compel. Because these

documents were created after the order appealed from and/or submitted for

the first time in the Main Line Defendants’ motion for reconsideration, this

Court may not consider them on appeal. See Stange, 179 A.3d at 64 n.7;

see also Meyer-Chatfield Corp., 143 A.3d at 938 n.4; Prince George

Center, Inc., 704 A.2d at 145.

I respectfully disagree with the Majority’s conclusion that the Main Line

Defendant’s argument regarding subsection (ii) is not waived because “[i]n

the privilege log, the Main Line Defendants asserted that the PSOW and SBAR

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were privileged ‘patient safety work product’ as defined by Section 299b-21

of PSQIA generally.” Majority Memorandum Opinion at 16 n.12 (emphasis

added). As I explained above, the PSQIA contains three subsections dealing

with privilege. Thus, while a general assertion of PSQIA privilege in a

privilege log could implicate all three subsections, the Main Line Defendants

nevertheless bore the burden of asserting and establishing the application of

a specific privilege. See Ungurian v. Beyzman, 232 A.3d 786, 795 (Pa.

Super. 2020) (holding that the party asserting a privilege bears the burden of

producing facts establishing proper invocation of the privilege); see also

Fisher v. Erie Ins. Exch., 258 A.3d 451, 461 (Pa. Super. 2021) (holding that

the party invoking a privilege must initially set forth facts showing that the

privilege has been properly invoked). In discharging this burden, the Main

Line Defendants only briefed and argued the specific application of

subsection (i) before the trial court in response to the motions to compel.

See Pa.R.A.P. 302(a) (providing that issues not raised in the trial court are

waived and cannot be raised for the first time on appeal). Accordingly, the

Main Line Defendants did not provide the trial court with any opportunity to

consider or address whether the PSQIA privilege prescribed by subsection (ii)

could potentially apply to the PSOW and SBAR documents. See Gustine

Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., 892 A.2d 830,

835 (Pa. Super. 2006) (holding that the purpose of Rule 302(a) is “to provide

th[e] [trial] court with the opportunity to consider the issue, rule upon it

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correctly, and obviate the need for appeal”); see also Kimmel v. Somerset

County Comm'rs, 333 A.2d 777, 779 (Pa. 1975) (holding that “[i]t is a

fundamental principle of appellate review that [appellate courts] will not

reverse a judgment or decree on a theory that was not presented to the trial

court”).

Thus, I believe that the Main Line Defendants are precluded from raising

the application of subsection (ii) before this Court. Accordingly, I would affirm

the trial court’s August 21, 2023 order in all aspects, including its

determination that the Main Line Defendants failed to establish that the PSOW

and SBAR documents were PSQIA privileged under subsection (i).

For these reasons, I respectfully concur in part, and dissent in part, from

the Majority’s opinion.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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