# Fielding, G. v. Wayne Memorial Hospital

> Superior Court of Pennsylvania · September 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11132933

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** September 4, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Sullivan
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- declining to quash an appeal taken more than thirty days after the entry of order compelling disclosure, but within thirty days of the denial of appellant’s timely motion for reconsideration

## Opinion text

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

GARY FIELDING : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH WROBLESKI, DO AND :
WAYNE MEMORIAL HOSPITAL :
: No. 1340 EDA 2023
:
PETITION OF: WAYNE MEMORIAL :
HOSPITAL :

Appeal from the Order Entered October 13, 2022
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 2020-CV-241

BEFORE: BOWES, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 4, 2025

Wayne Memorial Hospital (“WMH”) appeals from the order denying its

motion for a protective order concerning a patient-safety investigation report

(“the report”). This appeal comes to this Court following entangled procedural

facts in the trial court. As a general matter, this is an appeal from the

collateral order in a discovery dispute raised during the medical malpractice

action brought by Gary Fielding (“Fielding”) against WMH and Joseph

Wrobleski, DO (“Wrobleski”). When Fielding sought to compel disclosure of a

report regarding a procedure he underwent at WMH, WMH invoked state law

privileges to object. While the trial court initially agreed with WMH that a state

law privilege applied, the court then reconsidered its decision and

subsequently ordered disclosure of the report. During further litigation over
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the trial court’s reconsidered decision, WMH, raised, for the first time, a

privilege under federal law, and filed a new motion for protective order based

on the federal privilege. The trial court, in relevant part, determined WMH

“waived” the federal privilege by failing to raise it in response to Fielding’s

initial motion to compel. Upon thorough review of the record in this matter,

we discern no error in the trial court’s conclusion that WMH failed to timely

preserve its claims of a federal law privilege, and we affirm.

We summarize the relevant factual history of this appeal as follows. In

2018, Fielding underwent a surgical procedure at WMH. During the surgery,

a fire broke out around his shoulder (“the fire”). See Am. Compl., 9/21/20,

at ¶¶ 6-7. Shortly after the fire, Nurse Manager Elizabeth Korb (“Korb”)

created the subject report by completing a form on WMH’s computer system.

See N.T., 4/27/22, at 12-17.1

Fielding brought the underlying medical malpractice action against

Wrobleski, the attending surgeon, and WMH. During discovery, WMH refused

to answer Fielding’s interrogatories concerning reports about the fire, citing

privileges under Pennsylvania’s Peer Review Protection Act (“PRPA”) and an

____________________________________________

1 The form was labelled “patient safety work product,” and bears a stamp that

it is confidential under various state laws. WMH’s Reconsider. Mot. of Order
Dated 7/7/22, 8/19/22, Ex. C., at 1, 4. The completed report indicated it had
been sent to “CHART Institute Patient Safety Organization.” WMH’s
Reconsider. Mot. of Order Dated 7/7/22, 8/19/22, Ex. C., at 4.

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unspecified “Patient Safety Act,” among others. See Mot. to Compel,

11/24/24, at 3.2

Although relevant, the remaining procedural history is lengthy and

unnecessarily complicated. In November 2021, Fielding moved to compel

disclosure of WMH’s accident or incident reports about the fire. See id. at 7.

WMH answered and requested a protective order based on PRPA privileges.

See WMH’s Answer to Mot. to Compel, 12/20/21, at 4.

After reviewing documents in camera, the trial court held a hearing in

April 2022 (“the April 2022 hearing”) at which WMH presented testimony from

Nurse Manager Korb and Director of Patient Safety James Pettinato

(“Pettinato”). In line with WMH’s claim of PRPA privileges, Korb and Pettinato

testified the report was prepared for, and part of, a root cause analysis

performed in anticipation of peer review. See N.T., 4/27/22, at 12-17, 34-

43. During his cross-examination, Pettinato referred to “CHART” as WMH’s

insurer, which also owned, and provided WMH with, the software (also

referred to as “RL Solution”) used to create the report. See id. at 70-71.

Pettinato initially answered affirmatively when asked if a copy of the report

went to “CHART,” WMH’s insurer, but he later stated he did not know if WMH
____________________________________________

2 PRPA, which is codified at 63 P.S. §§ 425.1-425.4, “is designed to foster
candor and frankness in the creation and consideration of peer-review data by
conferring immunity from liability, as well as confidentiality . . ..” Leadbitter
v. Keystone Anesthesia Consultants, Ltd., 256 A.3d 1164, 1169 (Pa.
2021). WMH’s answers to interrogatories did not provide a statutory citation
for its reference to the “Patient Safety Act.”

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sent a copy of the report to its insurer. See id. at 71-72. The trial court

concluded that PRPA applied and issued a protective order. See Order,

4/28/22, at 1.

Fielding moved for reconsideration, arguing Pettinato testified that WMH

disclosed the report to WMH’s insurer, “CHART Insurance,” which was not part

of WMH’s peer review process. Fielding’s Mot. to Reconsider., 5/27/22, at 2-

3, 5. WMH answered, claiming that Fielding failed to present new evidence,

a change in controlling law, or clear error necessitating reconsideration. See

WMH’s Answer to Mot. to Reconsider., 6/21/22, at 3-4. WMH specifically

denied disclosing the report to “CHART,” although it offered no further

clarification on what “CHART” was, or the relationship between “CHART” and

WMH. See id. at 5-6; see also N.T., 6/21/22, at 16.

Following oral arguments in June 2022 (“the June 2022 arguments”),

the trial court, by order dated July 7, 2022, and entered July 15, 2022, granted

Fielding’s reconsideration motion (“the July 2022 order”). The court concluded

PRPA did not protect the report because it contained information gleaned from

original sources and WMH shared it with its insurer. See Order, 7/15/22 at

1. The court required disclosure of the report within ten days of the July 2022

order. See id.

WMH did not comply, and, in August 2022, filed a petition for leave to

file for reconsideration nunc pro tunc. In the petition, WMH averred it should

have an opportunity to establish that the incident report was not shared with

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its insurer. See Pet. for Leave, 8/9/22, at 3. The trial court denied leave to

file nunc pro tunc.

WMH nevertheless filed a motion for reconsideration without the court’s

leave. In its reconsideration motion, WMH asserted, for the first time, that

the federal Patient Safety and Quality Improvement Act of 2005 (“PSQIA”),

which protects “patient safety work product” reported to a certified “patient

safety organization” (“PSO”)—should apply. 3 See WMH’s Mot. to Reconsider.

July 2022 Order, 8/19/22, at 5-12. WMH attached a redacted copy of the

report and referenced an area indicating that WMH sent the report to “CHART

Institute Patient Safety Organization (PSO).” See id. at 40 & Ex. C at 4.

Because “CHART Institute” was a PSO, and not an insurer, WMH also argued,

disclosure to “CHART Institute” would not vitiate PRPA’s peer review privilege.

See id. at 13. The trial court denied WMH’s motion for reconsideration.

Order, 8/23/22, at 1.

WMH still did not disclose the report, and Fielding filed for sanctions.

The day after Fielding filed for sanctions, WMH filed a motion for a protective

order based on the federal PSQIA privilege (“PSQIA motion”). WMH’s PSQIA

motion essentially repeated the claims raised in WMH’s unauthorized motion

for reconsideration. WMH also attached an affidavit from Patient Safety

Officer Jane Domaracki (“Domaracki”), indicating, inter alia, WHM disclosed
____________________________________________

3See 42 U.S.C.A. § 299b-22; see also Ungurian v. Beyzman, 232 A.3d
786, 796 (Pa. Super. 2020).

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the report to “CHART Institute,” WMH’s PSO, via “CHART Institute’s” patient

safety evaluation system (“PSES”). See WHM’s PSQIA Mot., 8/31/22, Ex. F.

at 2. WMH also attached an internet list of PSOs, which included a reference

to “CHART Institute.” See id., Ex. G.

The trial court scheduled arguments on WMH’s PSQIA motion and

Fielding’s motion for sanctions. See Order 9/6/22, at 1. At arguments in

October 2022 (“the October 2022 arguments”), WMH’s counsel conceded he

had not raised PSQIA at the April 2022 hearing held on Fielding’s motion to

compel and the June 2022 arguments on Fielding’s motion for reconsideration.

See N.T., 10/11/22, at 15-17. WMH’s counsel explained he had been aware

of the PSQIA protections but made a tactical decision to rely on PRPA; further,

because WMH initially prevailed on PRPA, counsel believed it unnecessary to

raise PSQIA until after the court’s July 2022 order granting Fielding’s motion

for reconsideration and compelling disclosure of the report. See id. at 12-

14.4

On October 13, 2022, the trial court entered the order denying WMH’s

PSQIA motion (“the October 2022 order”). The court reasoned WMH should

have raised PSQIA protections in response to Fielding’s motion to compel

production of the report or to Fielding’s motion for reconsideration. See

____________________________________________

4 WMH, at the hearing on its PSQIA motion, did not assert the PSQIA
protections could not be waived. See N.T., 10/11/22, at 11, 18.

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Order, 10/13/22, at 1 n.1. The court concluded WMH’s failure to do so “waived

its PSQIA protection argument.” Id.

WMH did not file a notice of appeal from the October 2022 order.

Instead, on the thirtieth day for so doing, WMH filed a motion for

reconsideration and a request that the trial court amend the October 2022

order to include a certificate of immediate appeal. See 42 Pa.C.S.A. § 702;

Pa.R.A.P. 1311. WMH asserted, for the first time, that PSQIA protection

cannot be waived. See Br. in Support of Mot. to Reconsider. Oct. 2022 Order,

11/14/22, at 11. The trial court denied the request for amendment by order

dated November 28, 2022 and docketed November 29, 2022 (“the November

2022 order”). See Order, 11/29/22.

On December 23, 2022, WMH filed in this Court a petition for permission

to appeal the November 2022 order denying the request to amend the October

2022 order. Fielding petitioned this Court to quash WMH’s appeal. This Court

treated WMH’s requests for discretionary review as a notice of appeal from

the October 2022 order, see Pa.R.A.P. 1316 (governing the incorrect use of a

petition for permission to appeal), but issued a rule to show cause why this

appeal should not be quashed because WMH should have appealed the July

2022 order, which first compelled disclosure of the report. WMH filed a

response to the rule to show cause.

WMH raises the issues for appeal our review:

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A. Whether [WMH] timely brought this appeal to the Superior
Court?

B. Whether the privileges and protections provided under the
PSQIA can be waived?

C. In the alternative, even if the privileges and protections of the
PSQIA can be waived (which is specifically denied), whether
[WMH] did waive those privileges?

WMH’s Brief at 3 (reordered).

Initially, this Court must resolve the jurisdictional questions raised by

the prolonged procedural history of this case and discussed in WMH’s first

issue. See Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004) (“Prior

to examination of Appellants’ claims, we must determine whether because of

untimeliness or lack of appealability these orders are properly before us”).

The respective standard and scope of review over these jurisdictional matters

is de novo and plenary. See Crespo v. Hughes, 292 A.3d 612, 615 (Pa.

Super. 2023)

Generally, appeals from discovery disputes involving an evidentiary

privilege may be taken under Pa.R.A.P. 313. See Smith v. O’Brien, 321 A.3d

1034, 1039 (Pa. Super. 2024) (en banc) (noting that Pa.R.A.P. 313 permits

an appeal of an order that is: (1) separable from and collateral to the main

cause of action where (2) the right involved is too important to be denied

review and (3) the question presented is such that if review is postponed until

final judgment in the case, the claim will be irreparably lost).

This Court has explained:

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[T]he timeliness of appeals from collateral orders depends not
upon entry of the order itself, but upon resolution of the collateral
matter. And, although collateral orders may be appealed within
30 days of their entry, the substance of the collateral order is not
forever precluded when an appeal is not taken within this period.
As the order involved here is a discovery matter, by definition
preliminary and in addition concerned with resolution of collateral
issues, clearly no finality is implicated.

Cabot Oil & Gas Corp. v. Speer, 241 A.3d 1191, 1198 (Pa. Super. 2020)

(citation omitted). Accordingly, this Court has considered appeals from the

last in a series of interlocutory orders resolving a collateral matter. See id.

(declining to quash an appeal taken more than thirty days after the entry of

order compelling disclosure, but within thirty days of the denial of appellant’s

timely motion for reconsideration); see also Jones, 852 A.2d at 1202-03

(considering issues related to an order directing production of medical reports

where the appellant did not appeal the initial order to compel production, but

appealed within thirty days of subsequent orders sanctioning the appellant

and requiring the production of additional medical reports).

Here, the October 2022 order, similar to Cabot and Jones, was the last

in a series of interlocutory orders that resolved a relatively narrow matter of

whether WMH was entitled to a protective order over the report. 5 Moreover,

____________________________________________

5 We acknowledge the present appeal involves different and more prolonged

procedures than presented in Cabot and Jones, and we reject WMH’s
argument that it “perfectly timed” its appeal to challenge the trial court’s
failure to analyze and apply PSQIA. We do not condone the type of serial
motions practice engaged in by WMH.

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there is no meaningful dispute that the issue on which WMH seeks review,

namely, the application of the PSQIA and its claim that the PSQIA cannot be

waived, could otherwise meet the elements of the collateral order doctrine.

See Pa.R.A.P. 313; Smith, 321 A.3d at 1039. The issue is separate and

collateral to the merits of Fielding’s medical malpractice claim, the claimed

rights are deeply rooted in public policy and go beyond the matter at hand,

and the claimed right would be irreparably lost if review is postponed. See

Pa.R.A.P. 313. Furthermore, because we may regard WMH’s timely pursuit of

an appeal, under 42 Pa.C.S.A. § 702 and Pa.R.A.P. 1311, as a notice of appeal

from the October 2022 order, see Pa.R.A.P. 1316(a), we decline to quash this

appeal.6

WMH, in its second issue, asserts that PSQIA protections cannot be

waived.7 This issue raises a question of law over which our standard of review

is de novo and our scope of review is plenary. See Ungurian, 232 A.3d at

794.

PSQIA protects “patient safety work product,” which it defines as “any

data, reports, records, memoranda, analyses (such as root cause analyses),

____________________________________________

6 We have amended the caption of this appeal to reflect that this is an appeal

from the trial court’s October 13, 2022 order.

7 We acknowledge Fielding correctly asserts that WMH did not claim PSQIA
could not be waived until after the trial court denied WHM’s PSQIA motion in
October 2022. However, we will review WMH’s claim to the extent it asserts
PSQIA precludes a trial court from finding waiver.

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or written or oral statements . . . which . . . are assembled or developed by a

provider for reporting to a patient safety organization and are reported to a

patient safety organization[.]” See 42 U.S.C.A. §§ 299b-21(7)(A)(i)(I), 299b-

22(a). Subsections (a) and (b) of section 299b-22 provides that “patient

safety work product” shall be privileged and confidential and shall not be

subject to a discovery order in a State civil proceeding or disclosed. See 42

U.S.C.A. § 299b-22(a)-(b). These protections apply notwithstanding any

other provision of state law. See 42 U.S.C.A. § 299b-22(a)-(b).

Subsection (c) sets forth exceptions to the general rule of privilege and

confidentiality and recognizes limited circumstances under which a party may

disclose patient safety work product. See 42 U.S.C.A. § 299b-22(c).8 The

duties to protect patient safety work product are continuing, and subsection

(d)(1) sets forth the following general rule:

Patient safety work product that is disclosed under subsection (c)
shall continue to be privileged and confidential as provided for in

____________________________________________

8 One such exception applies to “nonidentifiable patient safety work product.”

See 42 U.S.C.A. § 299b-22(c)(2)(B) (stating subsection (b) governing
confidentiality does not apply to disclosures of nonidentifiable patient safety
work product). PSQIA thus maintains a distinction between nonidentifiable
and identifiable patient safety work product, the latter of which is defined as
patient safety work product that “allows the identification of any provider that
is a subject of the work product, or any providers that participate in activities
that are a subject of the work product; [ ] constitutes individually identifiable
health information . . . ; or [ ] allows the identification of the reporter.” See
42 U.S.C.A. § 299b-21(2); see also 42 U.S.C.A. § 299b-21(3) (defining
nonidentifiable patient safety work product as patient safety work product that
is not identifiable patient safety work product).

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subsections (a) and (b), and such disclosure shall not be
treated as a waiver of privilege or confidentiality, and the
privileged and confidential nature of such work product shall also
apply to such work product in the possession or control of a person
to whom such work product was disclosed.

42 U.S.C.A. § 299b-22(d)(1) (emphasis added); see also 42 C.F.R.

§ 3.208(a) (“ . . . patient safety work product disclosed in accordance with

this subpart, or disclosed impermissibly, shall continue to be privileged and

confidential”) (emphasis added).

Pennsylvania law employs shifting burdens of proof in disputes over

privileges:

The party asserting privilege bears the burden of producing
facts establishing proper invocation of the privilege. Once
the invoking party has made the appropriate proffer, then the
burden shifts to the party seeking disclosure to set forth facts
showing that disclosure should be compelled either because the
privilege has been waived or because an exception to the privilege
applies. Accordingly, if the party asserting the privilege
does not produce sufficient facts to show that the privilege
was properly invoked, then the burden never shifts to the
other party, and the communication is not protected . . ..

Carlino E. Brandywine, L.P. v. Brandywine Vill. Associates, 260 A.3d

179, 197 (Pa. Super. 2021) (internal citations omitted) (emphases added).

WMH argues that once PSQIA protections attach, they cannot be waived.

See WMH’s Brief at 15-17, 23. WMH asserts section 299b-22(d)(1) and 42

C.F.R. § 3.208 confirm PSQIA protections cannot be waived. See id. at 12,

17. Additionally, WMH finds support in the case law of other jurisdictions,

including a recent Nevada Supreme Court decision in Sunrise Hosp. & Med.

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Ctr., LLC v. Eighth Judicial Dist. Court in & for Cnty. of Clark, 544 P.3d

241, 247 (Nev. 2024), which stated, “Because the PSQIA does not

contemplate waiver of the privilege over identifiable patient safety work

product, . . . such a privilege cannot be waived.” 9

The trial court, as noted above, denied WMH’s PSQIA motion because

WMH failed to raise the issue of protection under PSQIA when responding to

Fielding’s motion to compel, did not present evidence concerning PSQIA at the

April 2022 hearing, and did not claim PSQIA protections in its answer to

Fielding’s motion for reconsideration, or at the June 2022 arguments. The

court thus concluded WMH waived its PSQIA protection argument.

Following our review, we discern no merit to WMH’s broad assertion that

it cannot waive its PSQIA claim. WMH conflates a party’s “waiver” of an

evidentiary privilege with the concept of “waiver” rooted in issue preservation.

Although there is some overlap, the former focuses on the privilege-holder’s

relinquishment of a privilege; the latter focuses on the party’s (or its

attorney’s) conduct during litigation. See Sprague v. Walter, 656 A.2d 890,

911 (Pa. Super. 1995) (“A privilege of non-disclosure must be asserted during

a discovery proceeding or it will be waived”); see also Law Office of

____________________________________________

9 WMH discussed Sunrise at oral arguments, and this Court granted Fielding’s

request for supplemental briefs to address that decision. We note with
disapproval that while Fielding’s fifty-two-page supplemental brief addressed
Sunrise at various points, it also argued, at length, additional matters beyond
the scope of our order. We will disregard those additional matters.

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Douglas T. Harris, Esquire v. Philadelphia Waterfront Partners, LP, 957

A.2d 1223, 1232 (Pa. Super. 2008) (citing Pa.R.A.P. 302 and concluding “a

client implicitly waives the attorney-client privilege when his attorney fails to

invoke and/or assert the privilege before the trial court, only to then raise the

issue for the first time on appeal”).

Moreover, WMH’s reliance on section 299b-22(d)(1) and 42 C.F.R.

§ 3.208 is misplaced as those provisions relate to the continued protection of

patient safety work product after a disclosure. The statute and rule do not

speak to the party’s initial burden to raise present facts concerning an

evidentiary privilege in a timely manner. See Ungurian, 232 A.3d at 796;

Carlino, 260 A.3d at 197. Similarly, the cases relied on by WMH do not

support a broad contention that PSQIA protection can never be waived where

a party fails to develop an issue properly. Sunrise, in particular, is inapt

because that case concerned the continuing PSQIA protections after previous

disclosures of information, and counsel in Sunrise timely preserved an

objection with respect to the specific information sought from the witness. 10

____________________________________________

10 In Sunrise, the plaintiff deposed the chairperson of a facility’s patient safety

committee (“Dr. Murawsky”) and attempted to discover what information the
committee examined in its investigation of an adverse event. See Sunrise,
544 P.3d at 245. The facility’s counsel objected to the questioning under both
state law and the PSQIA. See id. The trial court there concluded any privilege
was waived by prior disclosures, namely, that the facility had already allowed
Dr. Murawsky and others to testify about privileged topics. See id. The trial
(Footnote Continued Next Page)

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In short, WMH’s “non-waiver” argument puts a substantive application

of the privilege before the threshold burden to produce facts necessary to

justify the privilege’s application. WMH, as the proponent of the privilege, was

required to adduce sufficient facts for the trial court to determine first whether

PSQIA protections attached, see Ungurian, 232 A.3d at 796. It did not do

so here, and we reject WMH’s broader legal contention that PSQIA protections,

as a matter of law, can never be waived.

In its final issue, WMH asserts that even if PSQIA privileges can be

waived, WMH did not waive its claim. See WMH’s Brief at 30. WMH insists it

preserved a PSQIA objection to discovery of the report when responding to

Fielding’s interrogatories, properly responded to Fielding’s motion to compel

based on exceptions to PRPA, and, despite initially citing PRPA as the sole

____________________________________________

court interpreted PSQIA regulations to mean that patient safety work product
disclosed permissibly shall not remain privileged. See id. at 246-47.

On appeal, the Nevada Supreme Court rejected the trial court’s interpretation
of the regulations, reversed, and interpreted the continuing protections of
PSQIA to conclude that the prior disclosures did not “waive” the PSQIA
privilege. See id. at 247-48 (“The statutory scheme does not permit a finding
that a party has voluntarily relinquished PSQIA privilege pertaining to
identifiable patient safety work product; that party might inadvertently
disclose patient safety work product or disclose it in accordance with specific
exceptions, but the privilege continues to exist”). The Sunrise Court thus
remanded to the trial court for further consideration of whether PSQIA
protections applied to the information sought from Dr. Murawsky. Notably,
neither the facility nor the courts in Sunrise discussed whether the facility’s
objection during Dr. Murawsky’s deposition would apply retrospectively to
information already disclosed by other witnesses or otherwise cured the
facility’s prior failures to object during those witnesses’ depositions.

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response to Fielding’s motion to compel, presented evidence from which the

trial court could conclude that PSQIA protections attached to the report. See

id. at 31-34. WMH insists that WMH disclosed the report to a PSO and no

other third-party entity. See id. at 32, 34. WMH also asserts the trial court

deprived it of a meaningful opportunity to explain how PSQIA protected the

report and clarify that any disclosure to “CHART” did not waive WMH’s claimed

privileges. See id. at 33-34.

The trial court, as noted above, found WMH waived its arguments based

on PSQIA protections. See Trial Ct. Op., 8/8/23, at 3. The court explained

WMH had ample opportunity to raise PSQIA during the litigation of Fielding’s

initial motion to compel, and WMH was not entitled to a “second bite at the

apple” of a decided matter, “all while in plain disregard of th[e c]ourt’s order

to produce the . . . report.” Id. The court added that by the time of its

October 13, 2022 order, there was nothing in the record, except for Patient

Safety Officer Domaracki’s affidavit that indicated the report was provided to

a duly certified PSO. See id. at 4. The court further noted Pettinato’s

testimony at the April 2022 hearing, at which Pettinato indicated a copy of the

report had been sent to an insurer. See id. at 4.

Following our review, we conclude WMH is not entitled to relief. Even

assuming WMH’s vague reference to the “Patient Safety Act” in its answers to

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interrogatories claimed a protection under the PSQIA, 11 WMH made a strategic

decision to rely solely on PRPA’s peer review protections when defending

against Fielding’s motion to compel. See N.T., 10/11/22, at 12-14. WMH’s

evidence at the April 2022 hearing made no mention of PSQIA or a disclosure

of the report to a PSO, see N.T., 4/27/22 at 9-10, 13 (indicating Nurse

Manager Korb completed the form to initiate the peer review process).

Critically, when Pettinato either discussed possible disclosures of the report to

WMH’s insurer or loosely referred to “CHART,” WMH took no efforts to

distinguish “CHART Insurance,” as WMH’s insurer, from “CHART Institute,” as

a PSO. See id. at 71-72 (indicating Pettinato’s testimony that “C[HART]

provides the RL Solution[ of] the event reporting that’s provided through our

insurance company or the actually [sic] software owners of the product” and

“[t]he insurance company is the one that gives us softwares [sic] that we

use”).

____________________________________________

11 As noted above, WMH’s answers to interrogatories referred to the “Patient

Safety Act” without citation. See WMH’s Brief at 5 (reproducing answers to
interrogatories). We note that the implementing regulations refer to PSQIA
as the “Patient Safety Act.” 42 C.F.R. § 3.20. However, Pennsylvania courts
have occasionally referred to the portions of the Pennsylvania Medical Care
Availability and Reduction of Error Act (“MCARE”), 40 P.S. §§ 1303.301–
1303.315, as the “Patient Safety Act.” Venosh v. Henzes, 2013 WL
9593953, at *10 (Pa. Com. Pl. July 17, 2013), amended, (Pa. Com. Pl. 2013).
Therefore, the reference to the “Patient Safety Act” could be construed as
ambiguous.

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While WMH initially prevailed on its PRPA argument, when Fielding

sought reconsideration arguing that Pettinato testified WMH disclosed the

report to its insurer, WMH did avail itself of the opportunity to clarify the

obvious dispute and possible confusion regarding Pettinato’s references to

“CHART.” WMH did not refer to the PSQIA or attempt to clarify that “CHART”

was a PSO. See WMH’s Answer to Mot. to Reconsider., 6/21/22, at 5-6.12

After the trial court then determined PRPA did not apply, WMH filed a petition

to file a motion for reconsideration of the July 2022 order nunc pro tunc, but

solely to clarify WMH did not disclose the report to its insurer. See Pet. for

Leave, 8/9/22, at 3. WMH again did not reference PSQIA or a PSO. See id.

The trial court denied that motion.

Based on the foregoing record, we discern no error in the trial court’s

conclusion that WMH failed to timely preserve its PSQIA claims by meeting its

initial burden of producing facts and sufficient legal arguments concerning the

application of PSQIA. Contrary to WMH’s assertions, WMH had ample

opportunities to assert PSQIA protections and establish “CHART” was a PSO

when responding to Fielding’s motion to compel, at the April 2022 hearing, in

response to Fielding’s motion for reconsideration, at the June 2022

arguments, and even when seeking leave to file for reconsideration nunc pro
____________________________________________

12 Indeed, in its answer to Fielding’s motion for reconsideration, and
presumably referring to its insurer, WMH “specifically denied that the . . .
report was provided to CHART . . ..” WMH’s Answer to Mot. to Reconsider,
6/21/22, at 5-6 (some capitalization omitted).

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tunc. WMH did not avail itself of any of those opportunities. Instead, after

the trial court denied WMH’s petition to file a motion for reconsideration of the

July 2022 order nunc pro tunc, WMH filed, without leave of court, a motion for

reconsideration raising PSQIA for the first time. When the trial court denied

that motion, WMH filed its belated PSQIA motion. However, just as a party

may not raise an issue for the first time in a motion for reconsideration, see

Meyer-Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 930, 938 n.4

(Pa. Super. 2016), we discern no authority permitting a party to relitigate a

motion to compel via a new motion for a protective order which raises new

facts and new legal theories it elected not to raise previously. WMH bore the

initial burden of establishing facts that a privilege applied, and given WMH’s

belated and piecemeal litigation of the PSQIA issue, the trial court was under

no obligation to consider an issue not properly raised in a timely fashion. 13

Thus, we discern no error in the trial court’s decision that WMH waived its

PSQIA arguments when opposing disclosure of the report.

Order affirmed.

Judge Nichols joins this decision.

Judge Bowes concurs in the result.

____________________________________________

13 We note that on appeal, WMH still does not seek a determination that PSQIA

applied based on the facts and arguments raised in its PSQIA motion, only a
decision that it did not waive PSQIA and a remand for the trial court to
determine if PSQIA applies.

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Date: 9/4/2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11132933. Public record. Not legal advice.