Griffin, T. v. The Bryn Mawr Hospital

J-A27022-25 2026 PA Super 53

TIFFANY GRIFFIN AND CHAD : IN THE SUPERIOR COURT OF

GREAVES : PENNSYLVANIA

:

:

v. :

:

:

THE BRYN MAWR HOSPITAL AND :

MAIN LINE HOSPITALS, INC. D/B/A : No. 3361 EDA 2024

THE BRYN MAWR HOSPITAL, JOHN :

DOE, BRENDA DEFEO, AND :

DONAHUE FUNERAL HOME OF UPPER :

DARBY, INC. :

:

:

APPEAL OF: THE BRYN MAWR :

HOSPITAL AND MAIN LINE :

HOSPITALS, INC. D/B/A THE BRYN :

MAWR HOSPITAL, BRENDA DEFEO :

Appeal from the Order Entered December 2, 2024

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

No(s): 2022-06086

BEFORE: BOWES, J., MURRAY, J., and BECK, J.

CONCURRING/DISSENTING OPINION BY MURRAY, J.:

FILED MARCH 19, 2026

Defendants in this case asserted that four documents relating to the

Hospital’s mishandling of fetal remains were subject to evidentiary privilege

under the Medical Care Availability and Reduction of Error Act (MCARE), 1 and

that three of those documents were subject to evidentiary privilege under the

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1 40 P.S. §§ 1303.101-1303.910.

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Patient Safety Quality and Improvement Act (PSQIA). 2 I join the Majority’s

conclusion that the four documents are not subject to MCARE’s evidentiary

privilege. However, for the reasons that follow, I respectfully dissent from the

Majority’s conclusion that the three documents are subject to privilege under

PSQIA.

I begin by emphasizing that courts generally disfavor evidentiary

privileges. See Ungurian v. Beyzman, 232 A.3d 786, 794 (Pa. Super.

2020); McLaughlin v. Garden Spot Vill., 144 A.3d 950, 953 (Pa. Super.

2016) (explaining that evidentiary privileges are disfavored because “they

operate in derogation of the search for truth” (citation omitted)). “Courts

should permit utilization of an evidentiary privilege only to the very limited

extent that excluding relevant evidence has a public good transcending the

normally predominant principle of utilizing all rational means for ascertaining

the truth.” BouSamra v. Excela Health, 210 A.3d 967, 975 (Pa. 2019)

(citation omitted).

Additionally, to provide context, I restate relevant portions of PSQIA.

Under PSQIA, patient safety work product is privileged and not subject to

discovery. 42 U.S.C.A. § 299b-22(a). Thus, a party asserting privilege must

first establish the information constitutes patient safety work product. Patient

safety work product is defined as follows:

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2 42 U.S.C.A. §§ 299b-21 – 26.

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Except as provided in subparagraph (B), the term “patient safety

work product” means any data, reports, records, memoranda,

analysis (such as root cause analyses), or written or oral

statement--

(i) which--

(I) are assembled or developed by a provider for reporting to

a patient safety organization and are reported to the patient

safety organization; or

(II) are developed by a patient safety organization for the

conduct of patient safety activities;

and which could result in improved patient safety, health care

quality, or health care outcomes; or

(ii) which identify or constitute the deliberations or analysis of, or

identify the fact of reporting to, a patient safety evaluation

system.3

Id. § 299b-21(7)(A) (footnote added). Patient safety work product excludes

“information that is collected, maintained, or developed separately, or exists

separately, from a patient safety evaluation system.” Id. § 299b-21(7)(B)(ii).

Here, it is undisputed that the three documents are not privileged under

subsection 299b-21(7)(A)(i). See generally Defendants’ Brief at 40-52

(arguing only that PSQIA’s “deliberations and analysis” privilege applies); see

also Affidavit of Ms. Walsh,4 6/7/24, ¶ 12 (conceding that “[t]he documents

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3 As defined by PSQIA, “[t]he term ‘patient safety evaluation system’ means

the collection, management, or analysis of information for reporting to or by

a patient safety organization.” 42 U.S.C.A. § 299b-21(6).

4 Patricia Walsh, RN, MSN (Ms. Walsh), was the system manager for risk and

safety for Main Line Health in October 2018. Ms. Walsh’s affidavit is attached

as Exhibit C to Defendants’ Response to Plaintiffs’ Third Motion for Sanctions.

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at issue in this matter were not reported to” the federally-approved patient

safety organization with which Hospital had a contract); Defendants’

Memorandum of Law in Support of Response to Plaintiffs’ Third Motion for

Sanctions, 6/10/24, at 19 (stating “Hospital does not contend that the

documents in question met the requirements for Section 21(7)(A)(i) [patient

safety organization] reporting.”).

Under subsection 299b-21(7)(A)(ii), a record constitutes patient safety

work product if it “identif[ies] or constitute[s] the deliberations or analysis of,

or identif[ies] the fact of reporting pursuant to, a patient safety evaluation

system.” 42 U.S.C.A. § 299b-21(7)(A)(ii); see also Boyle v. Main Line

Health, Inc., 345 A.3d 291, 303 (Pa. Super. 2025) (“Information that

constitutes ‘patient safety work product’ under the ‘deliberations and analysis’

option set forth in [this subsection] is protected when it is done within the

patient safety evaluation system.”); id. at 304 (clarifying that under this

subsection, PSQIA’s privilege applies regardless of whether the information

was, in fact, reported to a patient safety organization).

As noted by the Majority, Ms. Walsh confirmed that Hospital contracts

with a federally certified patient safety organization. Affidavit of Ms. Walsh,

6/7/24, ¶ 11. Hospital also has a patient safety evaluation system “for

collecting, analyzing, and managing patient safety information … for the

purpose of submission to its contracting [patient safety organization] and/or

conducting internal deliberation and analysis.” Id. Ms. Walsh also alleged the

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three documents at issue herein, which she describes as patient safety work

product, were prepared “for reporting” to Hospital’s patient safety

organization. Id. ¶ 12. Further, Ms. Walsh averred the three documents

constitute “analysis” conducted within Hospital’s patient safety evaluation

system. Id. ¶ 14; see also id., Exhibit B (Patient Safety Evaluation System

Policy).5

The Majority relies on the assertions in Ms. Walsh’s affidavit to conclude

the requirements for PSQIA’s privilege under subsection 299b-21(7)(A)(ii) had

been established. However, in my view, a medical facility’s subjective

determination that information constitutes patient safety work product under

PSQIA is no less self-serving than a medical facility’s subjective determination

that an issue is reportable as an incident or serious event under MCARE. See

Majority Op. at 16 (stating that “to allow a medical facility’s subjective belief

to control, would, in effect, permit a medical facility to use the MCARE privilege

as a sword instead of a shield, and make privileged any document it wished

not to disclose in litigation.”).

I acknowledge that PSQIA provides broader privilege protection than

MCARE. I likewise acknowledge that the text of PSQIA includes no

requirement that the alleged patient safety work product pertain to a

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5 Hospital’s patient safety evaluation system policy details Hospital’s

participation within the patient safety evaluation system and defines patient

safety work product in a manner that mirrors the text of PSQIA.

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particular patient under the provider’s care. See, e.g., Shands Teaching

Hosp. & Clinics, Inc. v. Beylotte, 357 So.3d 307, 309 (Fla. Dist. Ct. App.

2023) (concluding a report prepared following a slip-and-fall incident by a

hospital visitor was privileged and confidential under PSQIA, because “staff,

patients, and visitors alike” could face similar risks in common areas, and

noting the potential for improving conditions in common areas relates to

improved patient safety). Nevertheless, the stated purpose of PSQIA and the

text of its privilege provision make clear that privilege is intended to attach

when the deliberations and analysis promote the goal of patient safety. See

Boyle, 345 A.3d at 303 (explaining that PSQIA was enacted to encourage

analysis and discussion of patient safety and health care quality without fear

of such evaluations being used in civil litigation); see also S. REP. NO. 108-

196 (2003) (identifying the purpose of shifting from a culture of culpability to

a “‘culture of safety’ that focuses on information sharing, improved patient

safety and quality and the prevention of future medical errors”). With an eye

to PSQIA’s intended purpose, I cannot agree that, in this particular case, the

three documents relate to patient safety or the prevention of future medical

errors.

Defendants vaguely assert that tracking tissue in a laboratory implicates

patient care and treatment. See Defendants’ Brief at 48; see also id.

(likening this matter to an instance of losing biopsied material and potentially

delaying cancer treatment). The Majority similarly concludes that “policies

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and procedures regarding the storage and tracking of laboratory or pathology

specimens that require further testing for patient diagnosis and/or treatment

are critical to the health, safety, and quality of care provided by a hospital.”

Majority Op. at 25. If this matter simply involved tracking tissue within a

laboratory, I would be inclined to agree. However, based on the record before

this Court, I do not believe this matter involves tracking laboratory specimens

which require testing, nor does it relate to patient safety or healthcare

outcomes.

The allegations in Plaintiffs’ complaint relate exclusively to the

mishandling or misplacement of fetal remains, rather than to a laboratory

specimen. The deposition testimony of laboratory manager Erin Tretter (Ms.

Tretter)6 and pathology assistant James Moore (Mr. Moore)7 is useful. Both

individuals described the procedure for handling fetal remains based on the

fetus’s gestational age. Ms. Tretter explained that “products of conception”

(which would include remains removed during a surgical procedure such a

dilation and curettage or dilation and evacuation) relate to a fetus of less than

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6 Various filings refer to Ms. Tretter as the individual in charge of pathology

for Hospital. However, during her deposition, Ms. Tretter testified that in

2018, she “mostly oversaw the operations of the rapid response laboratory. I

didn’t have any direct oversight of pathology.” Deposition of Ms. Tretter,

9/15/23, at 8. Ms. Tretter’s deposition is attached as Exhibit D to Plaintiffs’

April 30, 2024, Motion for Sanctions and to Compel Re-Deposition of Erin

Tretter and James Moore and to Strike Objections of Defense Counsel.

7 Mr. Moore’s deposition is attached to the same motion for sanctions, as

Exhibit E.

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16 weeks. Deposition of Ms. Tretter, 9/15/23, at 25. In those instances, the

products of conception would be taken to the surgical pathology gross room

for dissection and diagnosis. Deposition of Mr. Moore, 3/15/24, at 73. Such

testing and diagnosis does not require the patient’s permission at this early

stage. Id. at 74. If a family wished to collect the products of conception,

they would be picked up from the gross room. Deposition of Ms. Tretter,

9/15/23, at 25.

Ms. Tretter then specifically testified that the fetal remains at issue

herein could not be considered a product of conception. Id. at 25-26. Rather,

with a gestational age of 18 weeks, Tiffany Griffin’s (Griffin) fetus was intact.

Id. Mr. Moore stated that remains from an intact fetus, beyond the requisite

gestational age, are taken directly to the morgue. Deposition of Mr. Moore,

3/15/24, at 73. In order to complete any testing on fetal remains at this

stage, the patient of record or the patient’s personal representative would

have to provide explicit permission for a postmortem examination. Id. at 73-

74.

Thus, where Griffin had carried her fetus to the gestational age of 18

weeks, the above-described policies dictate that absent postmortem

permissions, the fetal remains would have been transferred directly to the

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morgue.8 In their supplemental objections and responses to Plaintiffs’ first

set for interrogatories, Defendants alleged that following Griffin’s dilation and

evacuation procedure, a member of the obstetric nursing staff transported the

fetal remains from the labor and delivery department to the morgue. See

Supplemental Objections and Responses of Defendants to Plaintiffs’ First Set

of Interrogatories, 6/1/20, at 11. 9 Ms. Tretter confirmed that the morgue’s

inventory logs indicated that the fetal remains were located in the morgue.

Affidavit of Ms. Tretter, 9/15/23, at 31-32.

By contrast, Defendants stated the placenta was transported from the

operating room to the pathology lab. See Supplemental Objections and

Responses of Defendants to Plaintiffs’ First Set of Interrogatories, 6/1/20, at

12. Ms. Tretter also confirmed that the pathology laboratory’s logs indicated

that the placenta had been located in the pathology laboratory, and it had

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8 In their appellate brief, Plaintiffs assert that they declined Hospital’s request

to donate the fetal remains for testing. Plaintiffs’ Brief at 5. In support of this

statement, Plaintiffs cite to paragraph 21 of their complaint, which, in fact,

contains no such averment. See Complaint, 3/5/20, ¶ 21 (paragraph 21

alleges, in its entirety, “While at THE BRYN MAWR HOSPITAL, [Griffin] was

presented with paperwork, authorizing the transfer of [the fetal remains] to

DONOHUE FUNERAL HOME for purposes of cremation.”). Plaintiffs also stated

they declined Hospital’s request for fetal testing in support of their motions

for sanctions. See Plaintiffs’ Brief in Support of Motion for Sanctions, 5/10/24,

at 20; Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Fourth Motion

for Sanctions and to Compel Depositions, 11/19/24, at 16. From the record,

we are unable to ascertain whether Hospital formally requested that Plaintiffs

donate the fetal remains for testing. Nevertheless, it appears to be undisputed

that no testing occurred.

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subsequently been released to the funeral home. Affidavit of Ms. Tretter,

9/15/23, at 34-36. Defendants asserted that no examination, procedures, or

testing were done on either the fetal remains or the placenta. Id. at 11-12.

Instantly, the deposition testimony and Defendants’ discovery

responses make clear that the fetal remains at issue in this matter were never

taken to the laboratory for testing or any other procedure. Indeed, per

relevant policies, Hospital was not permitted to perform any testing of the

fetal remains without Griffin’s authorization. Instead, the fetal remains were

delivered directly to the morgue, where they remained until after Hospital

became aware that the fetal remains were still in the morgue following the

pathology laboratory’s release of the placenta to the funeral home. Because

there was no possibility that the remains at issue would undergo further

testing, and they were immediately taken to the morgue for storage following

Griffin’s procedure, I would conclude the documents created by Hospital after

the event do not relate to patient safety (even for a hypothetical, similarly

situated patient), and therefore, cannot constitute patient safety work

product.

As I would conclude the three documents do not constitute patient

safety work product, I would affirm the trial court’s order compelling discovery

of the documents under PSQIA. For these reasons, I dissent.

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