Est. of G.D. v. The Children's Hospital of Phila.

J-S21023-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

THE ESTATE OF GABRIELLA DEVINE : IN THE SUPERIOR COURT OF

BY AND THROUGH ERICKA CRUZ- : PENNSYLVANIA

DEVINE IN HER CAPACITY AS :

ADMINISTRATRIX OF THE ESTATE OF :

GABRIELLA DEVINE AND ON BEHALF :

OF WRONGFUL DEATH :

BENEFICIARIES OF GABRIELLA :

DEVINE :

: No. 2444 EDA 2024

:

v. :

:

:

THE CHILDREN’S HOSPITAL OF :

PHILADELPHIA :

:

Appellant :

Appeal from the Order Entered September 6, 2024

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

No(s): 230501156

BEFORE: KUNSELMAN, J., KING, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY KING, J.: FILED NOVEMBER 21, 2025

Appellant, the Children’s Hospital of Philadelphia, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted the

discovery motion of the Estate of Gabriella Devine by and through Ericka Cruz-

Devine in her capacity as administratrix of the Estate of Gabriella Devine and

on behalf of wrongful death beneficiaries of Gabriella Devine (“Gabriella”)

(collectively, “Appellees”). For the following reasons, we vacate the order and

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* Retired Senior Judge assigned to the Superior Court.

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remand to the trial court for further proceedings.

The relevant facts and procedural history of this case are as follows. On

May 10, 2023, Appellees filed a wrongful death and survival action against

Appellant, in connection with a biopsy that Gabriella underwent as part of her

treatment for Acute Myelogenous Lukemia, which Appellees allege caused

Gabriella’s death. Appellees filed an amended complaint on July 5, 2023.

After the trial court overruled Appellant’s preliminary objections to the

amended complaint, Appellant filed its answer on November 15, 2023.

On June 13, 2023, Appellees filed their first set of interrogatories, which

included, inter alia, interrogatory #29, requesting information about any

investigation into the cause of the injuries claimed by the Estate, and

interrogatory #32, requesting information concerning investigation into the

examination and treatment of Gabriella. (See Appellees’ First Set of

Integrated Interrogatories, dated 6/13/23, at 16).1 On February 14, 2024,

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1 Interrogatory #29 states:

29. Have you or anyone to your knowledge conducted

an investigation into the cause of the injuries claimed by the

Estate of [Gabriella] in this action? If so, please state:

a. The date(s) of each investigation;

b. The individual(s) who conducted each

investigation;

c. The identity of all notes, documents, data and

records pertaining to each investigation;

(Footnote Continued Next Page)

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Appellees filed a motion to compel, challenging the sufficiency of Appellant’s

answers to various interrogatories, including the answers to interrogatories

#29 and #32. Appellees did not seek to compel production of any particular

document but requested generally production of any documents that were

related to an investigation into the cause of the injuries (interrogatory #29.1),

and those documents that were related to investigation into the examination

and treatment of Gabriella (interrogatory #32.1).

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d. The findings of each investigation; and

e. All steps taken as a result of the findings of each

investigation.

29.1 Please provide a copy of all documents identified

above

Interrogatory #32 states:

32. Has anyone acting on your behalf conducted any

investigation into the examination and treatment of

[Gabriella] which is the subject of this litigation? If so, state

the following:

a. The name, address and employer of all persons

who conducted any investigation(s);

b. The dates of the investigation(s); and

c. The dates of any reports made about the

investigation(s) and the present custodian thereof.

32.1 Please provide a copy of all documents identified

above.

(Appellees’ First Set of Integrated Interrogatories, dated June 13, 2023).

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Appellant responded to the motion asserting that the requested

information was protected by the attorney client privilege, Pennsylvania Peer

Review Protection Act (“PRPA”),2 Medical Availability and Reduction of Error

Act (“MCARE Act”),3 or any other privilege. By order dated March 12, 2024,

the trial court granted the motion subject to amendment. The court entered

an amended order on March 14, 2024, granting the motion in part and

directing Appellant to produce a privilege log if necessary. The court specified

that Appellant shall provide verified substantive supplemental responses, and

documents responsive to the request for production of documents concerning

several interrogatories, including interrogatory #29, but not interrogatory

#32. (See Trial Court Order, 3/14/24).

Discovery between the parties continued and on July 27, 2024,

Appellees filed a motion for sanctions alleging that Appellant was in contempt

of the court’s discovery order. Relevant to the instant matter, Appellees

averred that, based on information disclosed during Appellant’s witness

depositions, Appellant had conducted an undisclosed investigation shortly

after Gabriella’s death—namely a morbidity, mortality and improvement

conference on July 31, 2022. Appellees claimed that Appellant violated the

court’s discovery order by failing to provide a privilege log concerning this

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2 63 P.S. §§ 425.1-425.4.

3 40 P.S. §§ 1303.101-1303.910.

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investigation. (See Motion for Sanctions, 7/27/24, at 6). Ultimately,

Appellees asked the court to sanction Appellant by precluding it from offering

any evidence at trial. Alternatively, Appellees asked that the court give

Appellant one more opportunity to fully respond to interrogatories #29 and

#32 and provide responsive documentation.

In response, Appellant contended that the morbidity, mortality and

improvement conference and any documents related thereto were privileged

under the PRPA. On August 26, 2024, Appellant provided a second

supplemental answer and privilege log concerning interrogatories #29 and

#32, among other things. Regarding interrogatory #29, Appellant claimed

that “there was no root cause analysis or apparent cause analysis conducted

regarding [Gabriella’s] death.” (Appellant’s Second Supplemental Answers,

8/26/24, at 2). In response to interrogatory #32, Appellant stated:

Answering Defendant objects to this discovery request in

that it is overly broad, vague[,] unduly burdensome, and

seeks information protected by the attorney/client privilege,

work-product doctrine, Pennsylvania Peer Review Protection

Act and/or Medical Care Availability and Reduction of Error

Act, Patient Safety Act, and the Health Care Quality

Improvement Act. By way of further response and without

waiver of said objections, there was no root cause analysis

or apparent cause analysis conducted regarding Plaintiff’s

death. A clinical review and Morbidity, Mortality and

Improvement Conference was held by Patient Safety on July

31, 2022. By way of further response, see Privilege Log.

(Id.) The attached privilege log refers to a “Memorandum from Patient Safety

Manager, Bridget Cei, MS, RN to Ursula Nawab, M.D., Medical Director of

Patient Safety” (“Patient Safety Memorandum”) and states the alleged bases

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of privilege for the Patient Safety Memorandum as MCARE sections 1303.313

and 1303.311(a), the Patient Safety and Quality Improvement Act of 2005

(“PSQIA”)4 generally, and PRPA generally.5

On August 27, 2024, the court held a hearing on several outstanding

discovery issues including Appellees’ motion for sanctions. The court

summarized what occurred at the hearing as follows:

Appellees’ counsel claimed that right before the hearing,

Appellant’s counsel listed three documents that had not

been previously produced, and took the position that since

the documents were for peer-review, they were not for an

investigation, therefore their initial verification that no

investigation was conducted was accurate. (N.T. Hearing,

8/27/24, at 5-8). Appellees’ counsel stated that Appellant’s

counsel produced three documents; two of which were

PowerPoints for the peer-review and the third was [the

Patient Safety Memorandum].

Appellees’ counsel claimed his only concern was as to the

third document because Appellant’s counsel was claiming

the document was privileged and sent as a “memo from one

person in the Patient Safety Office to another in response to

a question about investigations.” (Id. at 7). At the hearing,

Appellant’s counsel claimed that their response that no

investigation was conducted into the cause of decedent’s

death was accurate and that they later supplemented that

response by stating that no investigation was conducted

other than that conducted by counsel. (Id. at 14-17).

Appellant’s counsel also stated that they supplemented the

response to another interrogatory about investigations that

were conducted into the decedent’s care and death.

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4 42 U.S.C. §§ 299b-21-26.

5 The privilege log also concerned two PowerPoint presentations, the first

prepared by Patient Safety Manager Bridget Cei, MS, RN, and the second by

Patient Safety Manager Orysa Bezpalko.

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Further, Appellant’s counsel represented that the

supplemented response stated that “there was a mortality

and morbidity conference—which is absolutely privileged.

And that’s why we produced a privilege log.” (Id.) The

[c]ourt, after hearing arguments[,] ordered Appellant’s

counsel to turn over the memo to the Appellees’ counsel.

(Id. at 16-17). At no time during the August 27, 2024

hearing did Appellant’s counsel address the issue of the

memorandum between the two individuals linking the

document to peer review and/or other privileges…

(Trial Court Opinion, dated 12/20/24, at 2-3) (some record citation formatting

provided). After the court issued its ruling, Appellant’s counsel stated that

“[t]he morbidity and mortality conference and any document that flows from

that is protected by the [PRPA,]” but did not provide any further explanation

as to how the document was privileged. (See N.T. Hearing, 8/27/24, at 17).

On September 6, 2024, the trial court entered an order directing

Appellant to produce the Patient Safety Memorandum. That same day,

Appellant filed a motion to reconsider, arguing that the trial court had initially

only required it to produce documents related to interrogatory #29, which

sought information and documentation regarding investigations into the cause

of injuries alleged in the complaint. Appellant claimed that Appellees’ motion

for sanctions alleged that Appellant failed to provide a response to

interrogatory #32, even though the court had not ordered Appellant to provide

documentation concerning that interrogatory. Appellant further contended

that the Patient Safety Memorandum was related to the July 31, 2022

morbidity, mortality and improvement conference, which was a privileged

event under PRPA. (See Motion for Reconsideration, 9/6/24, at 7-9).

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On September 13, 2024, prior to the court’s ruling on its motion to

reconsider, Appellant filed its notice of appeal. 6 The trial court entered an

order denying the motion to reconsider on October 17, 2024. Pursuant to the

court’s order, Appellant filed a concise statement of errors complained of on

appeal per Pa.R.A.P. 1925(b) on October 21, 2024.

Appellant raises the following issue for our review:

Whether the trial court abused its discretion and acted in a

manifestly unreasonable manner by compelling production

of the [Patient Safety Memorandum]—without briefing,

analysis, or in camera review—in violation of § 425.4 of the

Peer Review Protection Act, 63 P.S. §§ 425.1 et seq.

(Appellant’s Brief at 4).

Appellant argues that the trial court erred by compelling production of

the Patient Safety Memorandum without briefing, analysis, or an in camera

review. Appellant claims that the court deprived it of an opportunity to fully

litigate and brief the issue of privilege before the trial court’s ruling. Appellant

insists that the Patient Safety Memorandum is facially privileged under Section

4 of the PRPA, which concerns the proceedings and records of a review

committee. Appellant contends that both the patient safety manager who

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6 “Pennsylvania courts have held that discovery orders involving potentially

confidential and privileged materials are immediately appealable as collateral

to the principal action.” Berkeyheiser v. A-Plus Investigations, Inc., 936

A.2d 1117, 1123-24 (Pa.Super. 2007). See also Farrell v. Regola, 150 A.3d

87, 95 (Pa.Super. 2016), appeal denied, 641 Pa. 464, 168 A.3d 1259 (2017)

(holding that collateral order doctrine, as provided by Pa.R.A.P. 313 applies if

appellant asserts that trial court has ordered it to produce materials that are

privileged).

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drafted the memo and the director of patient safety, to whom the memo was

addressed, are professional healthcare providers under the PRPA.

Appellant further asserts that the trial court denied it a fair opportunity

to defend its privilege claims as the Patient Safety Memorandum was first

discussed as a discovery issue during the August 27, 2024 hearing, with no

opportunity for briefing prior to the hearing. Appellant maintains that because

it raised the appropriate allegation of privilege, the court was required to

conduct a comprehensive review of the merits of Appellant’s claim of privilege.

For all of these reasons, Appellant concludes that the court abused its

discretion by ordering it to produce the Patient Safety Memorandum, and this

Court must grant relief. We agree that some relief is due.

Our standard of review of a trial court’s discovery order is well settled:

[I]n reviewing the propriety of a discovery order, our

standard of review is whether the trial court

committed an abuse of discretion. Abuse of discretion

occurs if the trial court renders a judgment that is

manifestly unreasonable, arbitrary or capricious; that

fails to apply the law; or that is motivated by

partiality, prejudice, bias or ill-will.

Carlino E. Brandywine, L.P. v. Brandywine Village

Associates, 260 A.3d 179, 195-96 (Pa.Super. 2021)

(citations and quotation marks omitted). However, to the

extent that we are faced with questions of law, [our

standard of review is de novo and] our scope of review is

plenary. Berkeyheiser, supra at 1125.

Boyle v. Main Line Health, Inc., ___ A.3d. ___, ____, 2025 WL 2633685

at *2 (Pa.Super. filed Sept. 10, 2025).

It is well settled that “[t]he party asserting a privilege bears the burden

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of producing facts establishing proper invocation of the privilege.” Id.

(quoting Ungurian v. Beyzman, 232 A.3d 786, 795 (Pa.Super. 2020)). This

initial burden includes identifying the documents, the applicable privilege, and

the basis upon which the privilege is claimed. Carlino, supra at 197.

In Fisher v. Erie Ins. Exch., 258 A.3d 451 (Pa.Super. 2021) (en banc),

this Court considered when it is appropriate for a trial court to order in camera

review to decide an issue of privilege. There, Erie submitted a privilege log

concerning certain documents that listed the numbers of documents, the

subject of the document, and the privilege basis for each document, all in

cursory fashion. The “privilege log offered no value to help determine the

veracity of Erie’s claims of privilege or work-product.” Id. at 462. This Court

explained that “Erie had the burden of setting forth facts to demonstrate its

claims materials were not subject to disclosure” but “did not produce sufficient

facts to demonstrate that the privilege was properly invoked.” Id.

Nevertheless, this Court explained that the trial court properly “ordered

an in camera review to consider whether the documents were privileged, while

appropriately reserving ruling on the … motion to compel” because “Erie did

make some showing, albeit incomplete, that the requested materials may be

protected[.]” Id. In so stating, this Court clarified and reaffirmed our

decisional law “that holds when a request has been made that on its face seeks

protected materials, and the responding party clearly sets forth facts that

leave no doubt as to the applicability of any privilege, in camera review is not

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permitted and doing so would violate privilege.” Id. at 466. “Where,

however, the request made and the assertion of privilege by the responding

party and/or proofs offered by the requesting party render a court unable to

determine an issue of privilege, an in camera examination is appropriate and

fully supported by our case law.” Id. at 466-67. “This approach strikes an

appropriate balance between preserving privilege and protecting a party’s

right to discoverable material.” Id. at 467.7

In other words, where a privilege log alone does not permit meaningful

analysis of the underlying claim or scope of the asserted privilege “[i]n camera

review is a valuable tool for determining the validity of privilege claims, and

in many instances, it is difficult to make an informed decision regarding

privilege without such an inspection.” CCL Academy Inc. v. Academy

House Council, 231 A.3d 884, 889 (Pa.Super. 2020) (footnote omitted). See

also Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1029 (Pa.Super.

2015) (directing creation of privilege log and ordering that “any documents

identified on said log must be reviewed in camera by either the trial court or

the master to determine whether those materials are discoverable”); T.M. v.

Elwyn, Inc., 950 A.2d 1050, 1063 (Pa.Super. 2008) (vacating discovery

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7 Ultimately, the Fisher Court quashed the appeal, holding that it did not

satisfy the collateral order doctrine because it was “an appeal from an

interlocutory order that has not compelled production of protected documents,

but one that at this juncture has only ordered an in camera review.” Id. Thus,

Fisher is procedurally different from the case at bar, where the trial court in

the instant case ordered the production of documents.

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order and remanding for further proceedings where trial court did not provide

any indication or analysis with respect to how privileges raised were

inapplicable); Gocial v. Indep. Blue Cross, 827 A.2d 1216, 1223 (Pa.Super.

2003) (concluding that trial court erred where “[d]espite the existence of the

privilege log, the trial court did not rule on the relevance of each item or

explain why the privileges raised were inapplicable. Rather, the court simply

deemed the entire log discoverable”).

Instantly, Appellant claimed that the Patient Safety Memorandum was

privileged under the PRPA.8 As our Supreme Court has explained, “the PRPA

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—all with the objectives of improving the quality of care,

reducing mortality and morbidity, and controlling costs.” Leadbitter v.

Keystone Anesthesia Consultants, Ltd., 667 Pa. 704, 712, 256 A.3d 1164,

1169 (2021). “These types of protections are viewed as helpful in fostering

effective peer review because of the perceived reluctance of members of the

medical community to criticize their peers and take corrective action.” Id.

Beyond its short-title provision, see 63 P.S. § 425.1, the

PRPA has a definitional section, see id. § 425.2, and two

substantive-protection provisions: an immunity-from-

liability provision, see id. § 425.3 (granting immunity from

civil and criminal liability to persons who provide information

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8 Although the privilege log asserted that the Patient Safety Memorandum was

privileged under MCARE, PSQIA, and PRPA, Appellant has abandoned its

assertions of MCARE or PSQIA privilege.

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to review organizations), and a confidentiality-and-

testimonial-privilege provision, see id. § 425.4.

Id. at 713, 256 A.3d at 1169.

Section 4 of the PRPA sets forth the evidentiary privilege, in relevant

part, as follows:

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….

63 P.S. § 425.4. Accordingly, under Section 4 of the PRPA, “discovery is

precluded with regard to ‘proceedings and records of a review committee.’”

Leadbitter, supra at 724, 256 A.3d at 1176 (citation omitted).

The PRPA does not explicitly define “review committee,” however, our

Supreme Court has explained that the term “subsumes any committee that

undertakes peer review.” Leadbitter, supra at 725, 256 A.3d at 1176. See

also id. at 725, 256 A.3d at 1177 (stating: “a committee which performs a

peer-review function, although it may not be specifically entitled a ‘peer

review committee,’ constitutes a review committee whose proceedings and

records are protected under Section 4 of the act”). Thus, to discern the

applicability of the PRPA privilege to a document, the trial court must

determine whether the document concerns the proceedings and records of a

review committee performing a peer-review function. See id.

Here, at the hearing on Appellees’ motion for sanctions, Appellant’s

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counsel explained to the court that it provided a response to both

interrogatories #29 and #32, and that it produced a privilege log in

conjunction with its supplemental response to interrogatory #32, indicating

that the mortality and morbidity conference was privileged. (See N.T.

Sanctions Hearing, 8/27/24, at 15-16). Thereafter, the following exchange

occurred:

THE COURT: Counsel, you’re playing word

games with me here.

[APPELLANT’S COUNSEL]: I don’t believe so, Your Honor,

because --

THE COURT: You know, I do. And, I’m the one

that matters at this point. So, I’m not going to impose

sanctions but you are to turn over the memo that was

referenced regarding patient safety between the two

individuals. I believe that was what was requested.

As I said, I’m not going to impose sanctions at this time but

that’s the order of the [c]ourt.

[APPELLANT’S COUNSEL]: May I respond, Your Honor?

THE COURT: Respond to what? I already

made my order.

[APPELLANT’S COUNSEL]: I understand. I would just like to

put something on the record because –

THE COURT: What is it you want to put on the

record?

[APPELLANT’S COUNSEL]: The morbidity and mortality

conference and any document that flows from that is

protected by the Peer-Review Protection Act. And, this is

indicated in the supplemental response.

THE COURT: Well, Counsel, as I said earlier,

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you’re playing word games with me in terms of investigation

versus peer review.

I’m determining that it was part of an investigation. I’m

ordering you to turn over that memo that is referenced. So,

that is the order of the [c]ourt. Now, you can object to that,

that’s fine. Whatever you need to do. But, that is the order

of the [c]ourt at this point.

So, Counsel are to recraft the order consistent with what the

[c]ourt has stated here.

Thank you.

(Id. at 16-17).

In its Rule 1925(a) opinion, the trial court elaborated on its ruling as

follows:

Appellant’s counsel did not produce sufficient facts or

information as to how a document labeled “questions about

investigations” would be subject to privilege. It appears

[c]ounsel saw an opportunity to group the document with

the PowerPoints from the Mortality and Morbidity

conference, label it part of peer review, and hope the title

would be overlooked. Lastly, counsel merely states that the

document is privileged and expected the [c]ourt to take it

at face value without offering facts to back up the privilege

claims or that the privilege was properly invoked.

(Trial Court Opinion, dated 12/20/24, at 4).

On this record, we cannot agree with the trial court’s ruling. Although

Appellant did not present sufficient facts to demonstrate that the PRPA

privilege applies, we conclude that the trial court abused its discretion when

it ordered Appellant to disclose the Patient Safety Memorandum without first

evaluating applicability of the claimed privilege. The particular facts and

circumstances of this case present a unique procedural posture. Although the

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parties had litigated extensively with respect to the adequacy of Appellant’s

responses to Appellees’ first set of interrogatories, the question of production

of the Patient Safety Memorandum did not arise until the document was listed

in the privilege log submitted on August 26, 2024. Thereafter, the Patient

Safety Memorandum was discussed by the parties and the court during the

hearing on Appellees’ motion for sanctions. As the hearing was the day after

the initial disclosure of the Patient Safety Memorandum, there was no time for

either party to develop arguments concerning whether the memorandum was

privileged under any of the asserted bases, and accordingly, the trial court did

not have an opportunity to make an informed decision as to whether privilege

applied.

Under these circumstances, we conclude that the trial court erred in

ordering disclosure without first conducting an in camera review of the Patient

Safety Memorandum to ascertain whether the memorandum was privileged.

Like in Fisher, Appellant “did make some showing, albeit incomplete, that the

requested materials may be protected[.]” See Fisher, supra at 462. Without

the benefit of in camera review, the trial court was unable to provide any

indication or analysis with respect to how the asserted privileges did not apply.

See T.M., supra; Gocial, supra. Accordingly, we vacate the trial court’s

order and remand to the trial court for in camera review of the Patient Safety

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Memorandum.9

Order vacated. Case remanded for further proceedings. Jurisdiction is

relinquished.

Date: 11/21/2025

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9 On May 5, 2025, Appellant filed in this Court an application to strike

Appellees’ brief for failure to comply with the Pennsylvania Rules of Appellate

Procedure, alleging that Appellees’ counter statement of the facts contains

argument, and that the brief references a secondary source that was not

contained in the original papers and exhibits filed in the trial court. We note

that appellate briefs must materially conform to the Pennsylvania Rules of

Appellate Procedure, and “[t]his [C]ourt may quash or dismiss an appeal if

the appellant fails to conform to the requirements set forth in the Pennsylvania

Rules of Appellate Procedure.” Thompson v. Thompson, 187 A.3d 259, 263

n.1 (Pa.Super. 2018), aff’d, 656 Pa. 732, 223 A.3d 1272 (2020) (citation and

internal quotation marks omitted) (emphasis added). See also Pa.R.A.P.

2101. Here, the defects in Appellees’ brief are not substantial, and this Court

was able to review this case and the record without impediment. As such, we

deny Appellant’s application for relief and decline to strike Appellees’ brief.

Further, we deny Appellant’s alternative request for additional time to file a

reply brief as moot.

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