Yocabet v. UPMC Presbyterian

J-A04009-15

J-A04010-15

2015 PA Super 132

MICHAEL J. YOCABET, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

UPMC PRESBYTERIAN AND UNIVERSITY

OF PITTSBURGH PHYSICIANS,

APPEAL OF: UPMC PRESBYTERIAN

SHADYSIDE,

Appellant

CHRISTINA L. MECANNIC,

Appellee

v.

UPMC PRESBYTERIAN AND UNIVERSITY

OF PITTSBURGH PHYSICIANS,

APPEAL OF: UPMC PRESBYTERIAN

SHADYSIDE,

Appellant No. 569 WDA 2014

Appeal from the Order March 11, 2014

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): G.D. NO. 11-19112, G.D. NO. 11-19113

MICHAEL J. YOCABET, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

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UPMC PRESBYTERIAN AND UNIVERSITY

OF PITTSBURGH PHYSICIANS,

APPEAL OF: UPMC PRESBYTERIAN

SHADYSIDE,

Appellant

CHRISTINA L. MECANNIC,

Appellee

v.

UPMC PRESBYTERIAN AND UNIVERSITY

OF PITTSBURGH PHYSICIANS,

APPEAL OF: UPMC PRESBYTERIAN

SHADYSIDE,

Appellant No. 1230 WDA 2014

Appeal from the Order June 26, 2014

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): G.D. NO. 11-19112, G.D. NO. 11-19113

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

OPINION BY BOWES, J.: FILED JUNE 5, 2015

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

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UPMC Presbyterian Shadyside (“UPMC”) has filed these two appeals

from pretrial discovery orders. Since the orders involve common issues of

fact and law, we have consolidated them for disposition. UPMC maintains

that both orders, one dated March 11, 2014, and the other one dated June

26, 2014, require it to produce materials that are confidential under the Peer

Review Protection Act, 63 P.S. §§ 425.1-425.4 (the “Peer Review Act” or

“Act”). We will generally refer to this privilege as the peer review privilege.

UPMC also invokes the attorney-client privilege as to the materials ruled

discoverable in the June 26, 2014 order.1 We affirm the March 11, 2014

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1

We conclude that we have jurisdiction herein, even though the orders in

question are non-final. When a party is ordered to produce materials

purportedly subject to a privilege, we have jurisdiction under Pa.R.A.P. 313,

which outlines the collateral order doctrine. Pa.R.A.P. 313(b) (“A collateral

order is an order separable from and collateral to the main cause of action

where the right involved is too important to be denied review and the

question presented is such that if review is postponed until final judgment in

the case, the claim will be irreparably lost.”); see Dodson v. DeLeo, 872

A.2d 1237 (Pa.Super. 2005) (where trial court ordered party to produce

materials allegedly protected by the Peer Review Protection Act, order was

collateral order); Law Office of Douglas T. Harris, Esquire v.

Philadelphia Waterfront Partners, LP, 957 A.2d 1223 (Pa.Super. 2008)

(Pursuant to Pa.R.A.P. 313, where appealing party makes colorable claim

that attorney-client privilege applies, we will review merits of order requiring

disclosure). In Ben v. Schwartz, 729 A.2d 547 (Pa. 1999), our Supreme

Court ruled that orders refusing to apply a claimed privilege were

immediately appealable as collateral orders. In Commonwealth v. Harris,

32 A.3d 243, 252 (Pa. 2011), our Supreme Court re-affirmed that “orders

overruling claims of privilege and requiring disclosure are immediately

appealable under Pa.R.A.P. 313” despite the United States Supreme Court’s

decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009),

(Footnote Continued Next Page)

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order. We reverse the June 26, 2014 order and remand for the conduct of in

camera review in order to determine whether either privilege invoked by

UPMC applies to the materials involved therein.

These appeals stem from two civil cases involving allegations of, inter

alia, medical malpractice. At lower court docket number GD 11-19112,

Michael J. Yocabet instituted a lawsuit against UPMC and University of

Pittsburgh Physicians, and at lower court docket number GD 11-19113,

Christina L. Mecannic filed a civil action against the same entities. The two

lawsuits pertain to the same event, a kidney transplant. We summarize the

allegations contained in the complaints. Mr. Yocabet was on the kidney

transplant waiting list at UPMC awaiting a new kidney due to damage to that

organ caused by his Type I diabetes. Ms. Mecannic was Mr. Yocabet’s

significant other and the mother of his son. Ms. Mecannic volunteered to

undergo the necessary testing to determine if her eligibility to be a kidney

donor for Mr. Yocabet.

Mr. Yocabet did not have Hepatitis C prior to the kidney transplant

surgery. On January 26, 2011, Ms. Mecannic underwent blood test

_______________________

(Footnote Continued)

which disallows such appeals in the federal system. See also

Commonwealth v. Williams, 86 A.3d 771 (Pa. 2014) (reviewing propriety

of order from PCRA court compelling Commonwealth to produce materials

that it contended were protected under work product doctrine); In re

Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa.

2014) (reviewing orders that purportedly violated attorney-client privilege

and other statutory privileges).

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screening, and that testing revealed that she had Hepatitis C. Having

Hepatitis C renders a person ineligible to be a kidney donor under federal

guidelines and UPMC policies. Follow-up testing was recommended, but

none was ordered.

On January 26, 2011, Dr. Mark Sturdevant, a UPMC transplant

surgeon, documented that he reviewed Ms. Meccanic’s laboratory work,

which would have included the positive results for Hepatitis C. He

recommended her as an excellent kidney donor candidate. That same day,

UPMC nephrologist Dr. Nirav Shah documented that he reviewed Ms.

Meccanic’s laboratory work. Dr. Shah indicated that she appeared to be a

reasonable donor candidate. On January 31, 2011, UPMC physician Dr.

Jennifer L. Steel reviewed Ms. Meccanic’s records, which would have

included the positive results for Hepatitis C. Dr. Steel approved Ms.

Meccanic as a donor and found no contraindications for donation.

UPMC Transplant Selection Committee meetings were held on February

17, 2011, and March 23, 2011. Ms. Meccanic’s qualifications and test results

were discussed at those meetings, where she was approved as a donor. If

anyone during these five review processes had noticed Ms. Meccanic’s

positive test for Hepatitis C, she would not have been approved as a kidney

donor for Mr. Yocabet. In a March 24, 2011 letter to Ms. Meccanic, Mimi

Funovitis, a nurse and UPMC’s transplant coordinator, informed Ms. Meccanic

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that, after a review of Ms. Meccnic’s evaluation test results and interviews,

Ms. Meccanic was medically approved to be a kidney donor.

On March 29, 2011, Ms. Mecannic underwent additional blood testing

ordered by Dr. Henkie Tan. That testing also included a screening for

Hepatitis C, and the results indicated that there was an insufficient quantity

of blood to perform the ordered testing. Those results were faxed to Ms.

Funovitis. Ms. Funovitis documented that Ms. Mecannic’s blood had to be re-

drawn, but UPMC did not secure more blood from Ms. Meccanic. On April 1,

2011, Dr. Tan, the lead surgeon on the transplant team, completed a form

known as a transplant surgery consultation, wherein he noted Ms. Mecannic

was a suitable candidate for donation.

One of Ms. Mecannic’s kidneys was transplanted into Mr. Yocabet on

April 6, 2011. At some unknown time after the surgery, UPMC personnel

discovered that they had transplanted a Hepatitis C infected kidney into Mr.

Yocabet. On April 22, 2011, UPMC obtained another blood sample from Ms.

Meccanic without telling her the blood analysis was being performed solely

to determine her level of Hepatitis C infection and was not standard donor

testing following transplant surgery. On May 6, 2011, UPMC personnel

informed Ms. Meccanic that she had Hepatitis C.

Mr. Yocabet subsequently contracted Hepatitis C from Ms. Mecannic’s

donated kidney. An infectious disease doctor informed Mr. Yocabet that the

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Hepatitis C treatment would eventually result in kidney failure and death.

Ms. Meccanic underwent surgery that should not have been performed and

was left with one kidney.

After the complaints were filed, these two actions were consolidated at

GD 11-019112 for purposes of discovery. The plaintiffs submitted

interrogatories and a request for production of documents and then a motion

to compel. Due to the complexity of the discovery issues, the matter was

referred to a special master, Roslyn M. Litman, Esquire.

The following facts are pertinent to the issues involved in these

appeals. After the transplant at issue occurred, the Pennsylvania

Department of Health (“Department of Health”), on behalf of the Centers for

Medicare and Medicaid Services, conducted an investigation of the UPMC

transplant program (“CMS/DOH investigation”). The Centers for Medicare

and Medicaid Services is a federal agency within the United States

Department of Health and Human Services. It administers the Medicare and

Medicaid insurance programs and collaborates with state governments to

administer Medicaid, a social services program that provides health

insurance for individuals and families with low income and limited financial

resources. During discovery, the plaintiffs sought the communications,

which consisted of documents and interviews, submitted by UPMC to the

Department of Health for purposes of the CMS/DOH investigations. UPMC

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claimed that the requested materials were confidential under the Peer

Review Act.

The master opined that the documents and interviews submitted to

the Department of Health were not confidential since it was not conducting

peer review during the CMS/DOH investigation. UPMC filed objections to the

master’s conclusion that the plaintiffs could obtain the documents and

interviews reviewed for purposes of the CMS/DOH investigation. In a March

11, 2014 order, the trial court affirmed the master’s conclusion that the peer

review privilege did not apply to the materials submitted by UPMC to the

Department of Health during the CMS/DOH investigation. The appeal at 569

WDA 2014 followed. The issue raised therein is: “Whether documents and

communications generated as a result of the CMS/DOH investigation of the

medical treatment at issue are protected from discovery by the Pennsylvania

Peer Review Protection Act (63 P.S. § 425.1 et seq.)?” Appellant’s brief (569

WDA 2014) at 5.

The June 26, 2014 order on appeal at 1230 WDA 2014 concerns the

following facts. The plaintiffs requested information about a May 11, 2011

meeting of the Board of Directors of UPMC (“May 11, 2011 Board meeting”).

UPMC objected to that request and claimed that the information sought was

shielded from discovery by both the Peer Review Act and the attorney-client

privilege. The master recommended that the attorney-client privilege be

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held applicable; concomitantly, she did not reach the peer review issue. The

plaintiffs objected to this recommendation as well as a number of the

master’s other discovery conclusions.

On June 26, 2014, the plaintiffs’ objections were granted in part, and

the trial court, without reviewing the board minutes to determine whether a

privilege applied, ordered UPMC to produce the information that the plaintiffs

had requested about the May 11, 2011 Board meeting. The trial court

concluded that the attorney-client privilege was inapplicable; it did not

address whether the confidentiality provision outlined in the Peer Review Act

applied. The appeal at 1230 WDA 2014 followed. The issues raised therein

are:

A. Whether the trial court erred in ruling that documents and

other information regarding a board meeting following the

incident at issue are not protected from discovery by the

attorney-client privilege?

B. Whether the trial court erred in ruling that documents and

other information regarding a board meeting following the

incident at issue are not protected from discovery by the peer

review privilege?

Appellant’s brief (1230 WDA 2014) at 5.

I. Standard and Scope of Review and

Burden of proof

In these appeals, we are called upon to determine whether the Peer

Review Act’s confidentiality provision protects from discovery the materials

sought with respect to the CMS/DOH investigation and the May 11, 2011

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Board meeting. We thus engage in an interpretation of its provisions.

Where “the issue is the proper interpretation of a statute, it poses a question

of law; thus, our standard of review is de novo, and the scope of our review

is plenary.” Phoenixville Hosp. v. Workers' Compensation Appeal Bd.

(Shoap), 81 A.3d 830, 838 (Pa. 2013); accord In re Thirty-Third

Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014) (if an

appellant invokes a statutory privilege, appellate review is plenary). We

must review the applicability of the attorney-client privilege with regard to

the May 11, 2011 Board meeting. “Whether the attorney-client privilege or

the work product doctrine protects a communication from disclosure is a

question of law.” In re Thirty-Third Statewide Investigating Grand

Jury, supra at 215. Thus, the same standards apply with respect to both

privileges.

The “party invoking a privilege must initially set forth facts showing

that the privilege has been properly invoked[.]” Red Vision Systems, Inc.

v. National Real Estate Information Services, L.P., 108 A.3d 54,

62 (Pa.Super. 2015) (attorney-client privilege); accord In re T.B., 75 A.3d

485 (Pa.Super. 2013) (statutory privilege applicable to communications to

psychiatrist and psychologists). 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

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the privilege has been waived or because an exception to the privilege

applies. Red Vision Systems, Inc., supra; In re T.B., supra.

While there are no exceptions to the peer review privilege articulated

in the case law thus far, in the attorney-client context, there are a number.

The attorney-client privilege will not be upheld when the client has attacked

the honesty or professionalism of the attorney, when the advice was sought

for the purpose of committing a crime, and where nondisclosure would have

the sole effect of frustrating the administration of justice. Red Vision

Systems, Inc., supra. Additionally, “if the private good of protection from

the harm that could come with disclosure of attorney-client communications

is not furthered by application of the privilege, it is inapplicable.” Id. at 62.

Thus, for purposes of these appeals, we must examine whether UPMC, as

the party with the initial burden of proof, has presented sufficient facts to

bring the asserted privilege into play.

II. Appeal 569 WDA 2004

CMS/DOH Investigation: Peer Review Privilege

In this appeal, the claimed privilege is the one outlined in the Peer

Review Act. Our primary focus in determining whether the peer review

privilege applies is “directed to the plain language of the provisions” of the

statute in question. In re Thirty-Third Statewide Investigating Grand

Jury, supra at 215.

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We have observed that the purpose of the Peer Review Act’s

confidentiality provision is to “to facilitate self-policing in the health care

industry.” Dodson v. DeLeo, 872 A.2d 1237, 1242 (Pa.Super. 2005).

Since the Peer Review Act embodies the legislature’s belief that the “medical

profession itself is in the best position to police its own activities,” the Peer

Review Act is designed to encourage “comprehensive, honest, and

potentially critical evaluations of medical professionals by their peers.” Id.

As we more specifically delineated in Sanderson v. Frank S. Bryan, M.D.,

Ltd., 522 A.2d 1138, 1139 (Pa.Super. 1987):

The medical profession exercises self-regulation. The most

common form of such regulation in the health care industry is the

peer review organization. Hospital peer review organizations are

usually composed of physicians who review and evaluate other

physicians' credentials and medical practices. Generally, hospital

peer review findings and records are protected from public

scrutiny either legislatively, or by court decision. The purpose for

such protection is to encourage increased peer review activity

which will result, it is hoped, in improved health care.

The report issued after the CMS/DOH investigation is publicly

available. A review of the report reveals that the purpose of the CMS/DOH

investigation was to determine if UPMC’s kidney transplant program was in

compliance with the requirements of the Centers for Medicare and Medicaid

Services and thus eligible to continue to participate in the Medicare/Medicaid

program. Exhibit 4, Master’s Report and Recommendations Re Discovery

Disputes Resulting from Plaintiff[s’] Motion to Compel, 10/22/13. The

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Department of Health stated in its report that it conducted an “unannounced

Medicare complaint survey” at UPMC on June 7 and June 8, 2011. Id. at 1.

The Department of Health personnel met with the hospital’s administrators

and transplant program staff.

The report noted that a transplant center located within a hospital that

has a Medicare provider agreement must meet “the conditions of

participation specified in § 482.72 through § 482.104 in order to be granted

approval from [the Centers for Medicare and Medicaid Services] to provide

transplant services.” Id. at 2. The report continued that, in addition to

meeting those conditions, “a transplant center must also meet the conditions

of participation specified in § 482.1 through § 482.57.” Id.

The report stated, “Based on review of facility documents and

interview with staff,” the Department of Health concluded that the “Adult

Kidney Only (AKO) program [at UPMC] failed to ensure that the facility met

the conditions of participation specified in § 482.90 Patient and Living Donor

Selection.” Id. After finding multiple violations of § 482.90, the Department

of Health outlined an eleven-page plan of correction and assigned

responsibility for implementation of different aspects of the plan to different

staff members employed by UPMC. The plan of correction was designed to

bring UPMC into compliance with the conditions of participation specified in

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the § 482.90 so that it could continue to receive payments under Medicare

and Medicaid.

Hence, the report establishes that the purpose of the CMS/DOH

investigation was to determine whether UPMC had complied with conditions

and requirements to operate as a transplant center under applicable federal

guidelines and whether its adult kidney transplant program could continue to

participate in the Medicare and Medicaid programs.

We conclude the confidentiality provision of the Peer Review Act does

not apply to the CMS/DOH investigation because the Department of Health is

not a professional health care provider and thus did not conduct peer review.

The peer review privilege provides that the “proceedings and records of a

review committee shall be held in confidence[.]” 63 P.S. § 425.4.2 A review

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2

The complete statutory text is 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 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 or as to any

findings, recommendations, evaluations, opinions or other

actions of such committee or any members thereof: Provided,

however, that information, documents or records otherwise

available from original sources are not to be construed as

immune from discovery or use in any such civil action merely

(Footnote Continued Next Page)

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organization is identified in the Act as “any committee engaging in peer

review[.]” 63 P.S. § 425.2.3 Peer review is defined as “a procedure for

evaluation by professional health care providers” of the quality and

_______________________

(Footnote Continued)

because they were presented during proceedings of such

committee, nor should any person who testifies before such

committee or who is a member of such committee be prevented

from testifying as to matters within his knowledge, but the said

witness cannot be asked about his testimony before such a

committee or opinions formed by him as a result of said

committee hearings.

63 P.S. § 425.4.

3

The full definition of “review organization” is

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, 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 cost of health care. 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. 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.

63 P.S. § 425.2.

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efficiency of services ordered or performed by other “professional health

care providers.” 63 P.S. § 425.2 (emphasis added).4 Thus, peer review

occurs only when one professional health care provider is evaluating another

professional health care provider.

UPMC is a professional health care provider, as defined by the Peer

Review Act, but neither the Pennsylvania Department of Health nor the

Centers for Medicare and Medicaid Services is a professional health care

provider. Since the Department of Health and the Centers for Medicare and

Medicaid Services are not professional health care providers, the Department

of Health did not engage in peer review during the CMS/DOH investigation.

____________________________________________

4

In full, “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. Peer review, as it applies to veterinarians,

shall mean the procedure for evaluation by licensed doctors of

veterinary medicine of the quality and efficiency of veterinary

medicine ordered or performed by other doctors of veterinary

medicine with the standards set by an association of doctors of

veterinary medicine and with applicable laws, rules and

regulations.

63 P.S. § 425.2.

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Thus, the records tendered by UPMC for purposes of the CMS/DOH

investigation are not, by the clear and unequivocal terms of the Peer Review

Act, subject to the peer review privilege. Our analysis follows.

The Peer Review Act sets forth that a “professional health care

provider”

means individuals or organizations who are approved, licensed,

or otherwise regulated to practice or operate in the health care

field under the law of the Commonwealth, including, but not

limited to, the following individuals or organizations:

(1) A physician.

(2) A dentist.

(3) A podiatrist.

(4) A chiropractor.

(5) An optometrist.

(6) A psychologist.

(7) A pharmacist.

(8) A registered or practical nurse.

(9) A physical therapist.

(10) An administrator of a hospital, a nursing or

convalescent home, or other health care facility.

(11) A corporation or other organization operating a

hospital, a nursing or convalescent home or other

health care facility.

63 P.S. § 425.2.

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The Department of Health and the Centers for Medicare and Medicaid

Services are not organizations approved, licensed, or otherwise regulated to

practice or operate in the health care field. Neither the Department of

Health nor the Centers for Medicare and Medicaid Services falls within any of

the enumerated eleven categories defining a professional health care

provider. Instead, the Department of Health is a state agency. Its “mission

is to promote healthy lifestyles, prevent injury and disease, and to assure

the safe delivery of quality health care for all Commonwealth citizens.”

http://www.health.pa.gov. The Department of Health does not itself provide

health care to people.

McClellan v. Health Maintenance Organization, 660 A.2d 97

(Pa.Super. 1995), aff’d by an equally divided court, 686 A.2d 801 (Pa.

1996), is dispositive. In that case, the plaintiffs brought personal injury

lawsuits against a doctor and a health maintenance organization (“HMO”)

after the doctor failed to biopsy a malignant mole removed from plaintiffs’

decedent. The HMO was alleged to have engaged in corporate negligence

due to its failure to retain responsible doctors and to review its doctors to

ensure that the doctors provided competent health care. After the plaintiffs

filed a request for production of documents, the HMO claimed that those

items were subject to the peer review privilege. The trial court compelled

the HMO to produce the materials, and the HMO appealed. We concluded

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that the privilege did not apply because the HMO in question was not a

professional health care provider as defined in the Peer Review Act.

We delineated the following in McClellan. The structure of any HMO,

which provides both health insurance and health care, can widely vary, and

the diverse models change the degree to which the HMO acts as a direct

health care provider. A staff-model HMO provides health care services

through its own doctors and other health care professionals who are paid

employees. A staff-model HMO also owns or leases its own facilities, and

operates and oversees the administration of primary care services. A group-

model HMO involves contractual relationships between the HMO and

physician groups.

An independent practice association HMO “contracts for delivery of

services with a partnership, corporation, or association whose major

objective is to enter into contractual arrangements with health professionals

for the delivery of such health services.” Id. at 101 (citation omitted).

Those physicians contracting with this model of HMO typically practice in

their own office, own their own equipment and records, and are paid by the

HMO a fee for services rendered. Those types of HMOs largely operate as

providers of health insurance.

The HMO at issue was an independent practice association HMO, and

we concluded that the HMO was not a professional health care provider

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because it did not practice or operate in the health care field and was not

included within the eleven categories of people and organizations defined as

professional health care providers in the Peer Review Act. We refused to

read into the Peer Review Act’s definition of professional health care provider

any “medical institutions or groups . . . that are not specifically identified by

the legislature.” Id. at 102. Likewise, herein, the Department of Health

does not provide health care.

UPMC attempts to convert the Department of Health into a

professional health care provider by asserting that the Department of Health

personnel involved in the investigation were doctors and nurses, who are

defined as professional health care providers in the Peer Review Act. We

hold that an entity that is not itself a professional health care provider does

not become one merely because it hires a professional health care provider

to conduct its investigation.

The Department of Health is a fictitious entity that can only operate

through its agents and employees.5 The qualifications of a person hired by

the Department of Health does not alter either what it does or its purposes.

We find Piroli v. Lodico, 909 A.2d 846 (Pa.Super. 2006), instructive.

Therein, a billing manager was present during a peer review proceeding

conducted by a professional health care provider of a doctor credentialed at

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5

This legal precept is discussed in more detail in the text infra.

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its facility. We concluded that the “mere fact that the billing manager was

present, in addition to the health care professionals” on a committee

conducting peer review under the Peer Review Act, did “not serve to

eviscerate the protections that the legislature intended the [Peer Review

Act] to provide.” Id. at 852. We thus held that the peer review proceedings

remained confidential despite the fact that review occurred in the presence

of a person who was not a professional health care provider as defined in the

Peer Review Act. Conversely, in this case, the Department of Health did not

become a professional health care provider for purposes of the Peer Review

Act by virtue of the fact that it hired doctors and nurses to conduct its

investigation.

Additionally, providing confidentiality herein would not advance the

purpose of the Peer Review Act, which is designed “to facilitate self-policing

in the health care industry.” Dodson, supra at 1242. This review was

conducted by a state agency on behalf of a federal agency and did not, to

any extent, involve self-policing by the health care industry.

UPMC was not, by participating in the investigation, policing its own

activities nor was any medical professional doing so. Instead, UPMC was

reporting to a governmental body so that it could retain the right to receive

payment from programs covering a group of its patients. UPMC personnel

were aware that their interviews were being conducted by a governmental

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oversight organization and that UPMC’s status as an approved transplant

center for purposes of Medicare/Medicaid was in jeopardy. Thus, application

of the peer review privilege to the CMS/DOH investigation does not advance

the impetus behind the Act’s enactment.

UPMC insists, however, that there is another public policy reason for

upholding the peer review privilege. Appellant’s brief (569 WDA 2014) at

27. Rather than examine the rationale behind the Peer Review Act, which is

the law implicated herein, UPMC invokes the Right-To-Know Law. 65 P.S. §§

67.701, et seq. UPMC suggests that “the Department of Health documents”

would be exempt from public access under that statute. Id.

The Right-to-Know Law is completely irrelevant in this matter. The

plaintiffs are not requesting anything from the Department of Health. As the

plaintiffs aptly observe, they have “requested documents in UPMC’s

possession, directly from UPMC in a lawsuit against UPMC.” Appellees’ brief

(569 WDA 2014) at 18. This case does not involve a member of the public

who is requesting items from the Department of Health pursuant to a statute

granting public access to records in the possession of a “Commonwealth

agency, a local agency, a judicial agency or a legislative agency.” 65 P.S. §

67.701.

The plaintiffs seek materials submitted to the Department of Health by

UPMC for purposes of the CMS/DOH investigation rather than anything

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generated by the Department of Health. UPMC has insisted that it does not

have to reveal any materials that it tendered to the Department of Health

because those items are protected by the peer review privilege. The

privilege is not validly invoked with respect to materials that UPMC tendered

to the Department of Health because the Department of Health did not

conduct peer review as defined in the Act.

UPMC also points out that peer review can apply to investigations

performed “by outside entities.” Appellant’s brief (569 WDA 2014) at 14.

We agree with this proposition. However, under the unequivocal language

of the Peer Review Act, peer review can be initiated only by a professional

health care provider. An external committee formed or retained by a

professional health care provider to conduct peer review and composed of

professional health care providers outside its employ would qualify as a

review organization. However, the Department of Health is not a

professional health care provider; consequently, any committee formed by it

cannot be a review committee.

In conclusion, a review committee must be “engaging in peer review,”

and peer review is a “procedure for evaluation by professional health care

providers” of services performed by other professional health care providers.

63 P.S. § 425.2. The Pennsylvania Department of Health, acting on behalf

of the Centers for Medicare and Medicaid Services, did not, during the

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CMS/DOH investigation conduct peer review because it is not a professional

health care provider.6 Hence, the documents and interviews submitted by

UPMC for purposes of the CMS/DOH investigation are not protected by the

peer review privilege.

UPMC’s insistence that it does not have to provide any materials given

to the Department of Health for purposes of the CMS/DOH investigation is

flawed for a second reason. UPMC has invoked peer-review-privilege

protection for any document or record that it submitted to the Department

of Health during the CMS/DOH investigation. At oral argument, UPMC

represented that even an incident report would be confidential if used in

connection with a peer review process. This position is contrary to the terms

of the confidentiality provision of the Peer Review Act and applicable law.

The Peer Review Act provides in pertinent part that “proceedings and

records of a review committee shall be held in confidence and shall not be

subject to discovery.” 63 P.S. § 425.4. It continues that “information,

documents or records otherwise available from original sources are not to be

____________________________________________

6

In asserting that the peer review privilege applies herein, UPMC relies upon

a three-paragraph decision in Bush v. Wright, 222 A.D.2d 546, 635

N.Y.S.2d 87 (N.Y.A.D. 1995), wherein the Court held that the state

department of health’s investigation of a hospital incident was confidential

under a New York statute. UPMC, however, fails to analyze the New York

statute involved therein and does not establish that it contains provisions

analogous to those in the Act.

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construed as immune from discovery or use in any such civil action merely

because they were presented during proceedings of such committee[.]” Id.

In Dodson, supra at 1242, we specifically held that the Peer Review

Act does not “protect non-peer review business records, even if those

records eventually are used by a peer review committee.” Thus, an incident

report is not protected by the peer review privilege, even when such reports

are reviewed by a peer review organization Atkins v. Pottstown

Memorial Med. Center, 634 A.2d 258 (Pa.Super. 1993). As we observed

in that case,

After careful review of the purposes to be achieved by the

statute, we conclude that the trial court erred when it excluded

evidence of the incident report. This document contained

information “otherwise available from original sources.” It was

not derived from nor part of an evaluation or review by a peer

review committee. It was, rather, a report of an incident based

on information also available to plaintiffs. As such, the report

did not come within the need for confidentiality which the statute

was intended to provide.

Id. at 260.

Accordingly, we reject UPMC’s assertion that a record or document

automatically is covered by the peer review privilege merely because it was

forwarded to a peer review committee. The Department of Health report

indicates that its findings were premised upon facility policies and

documents, medical records, and staff interviews. Since, in this appeal,

UPMC does not assert that any of the materials that UPMC submitted to the

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Department of Health were generated as a result of an internal peer review

process, we affirm the trial court’s refusal to apply UPMC’s blanket assertion

of confidentiality to the materials that UPMC gave to the Department of

Health for purposes of the CMS/DOH investigation. For the foregoing

reasons, we find that UPMC has not properly invoked the peer review

privilege, and we affirm the March 11, 2014 order.

III. Appeal at 1230 WDA 2014:

May 11, 2011 Board meeting

This appeal concerns two interrogatories disseminated to UPMC by the

plaintiffs wherein they sought the production of documents, communications

and other information relating to the May 11, 2011 Board meeting, as

follows:

23. Regarding a UPMC board meeting on May 11, 2011,

please: (a) produce any board minutes relating to this incident

and/or any investigation of the transplant program in 2011; (b)

identify and produce any documents provided to the board

relating to this incident; (c) state whether it is admitted that

Elizabeth Concordia mentioned that the test result for hepatitis C

was missed by two people on the transplant team during a dozen

steps in the process; (d) describe what Ms. Concordia told the

board; and (e) identify the individuals present for the May 11,

2011 board meeting.

24. It is admitted that - during a board meeting on May

11, 2011 – Elizabeth Concordia described this incident as a

"systematic" problem in the way protocols failed? If so: (a)

describe what Ms. Concordia was referring to as a systematic

problem; (b) identify and produce the protocols that Ms.

Concordia was referring to; and (c) identify the individuals

and/or documents that Ms. Concordia got her information from

regarding this incident prior to briefing the board.

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Plaintiff’s First Set of Interrogatories and Request for Production of

Documents Directed to Defendant UPMC Presbyterian, 12/16/11, at

interrogatories ## 23-24.

UPMC claimed the peer review privilege and the attorney-client

privilege applied to all of the information sought in these requests. In

support of the peer review privilege, UPMC maintained the following. The

transplant program and the incident at issue were discussed at this meeting.

The Board of Directors of UPMC also examined the activities of the transplant

program and the specifics of the kidney transplant at issue herein, including

the donor review process, and corrective actions to be taken in the

transplant program. Answers to Plaintiff's First Set of Interrogatories and

Request for Production of Documents Directed to Defendant UPMC

Presbyterian (Revised), 11/5/12, at answers ## 23-24.

UPMC also invoked the attorney-client privilege based on its averment

that one or more attorneys were present at the meeting so that the Board

could obtain legal advice. UPMC continued that some communications at the

May 11, 2011 Board meeting involved the kidney transplant program, the

kidney donation herein, and were made for purposes of securing legal

counsel from the attorney or attorneys. Id.

The master recommended acceptance of UPMC’s position that the

attorney-client privilege applied to plaintiffs’ interrogatories 23 and 24. The

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trial court disagreed. It noted that the record indicated that, at the May 11,

2011 Board meeting, Elizabeth Concordia, UPMC’s Executive Vice-President,

presented information to the Board about the incident and that there was no

claim that she is a lawyer. The trial court concluded that “nothing in the

record . . . would permit a finding that Ms. Concordia’s presentation with

the Board of Directors was a discussion with legal counsel.” Trial Court

Opinion, 9/25/14, at 5. It characterized the “apparent purpose of the May

11, 2011 Board meeting” as one convened to “receive information from a

high ranking corporate officer, who is not an attorney, in order for the Board

to fulfill its responsibilities.” Id.

The court continued, “If the Board was seeking legal advice from

counsel, counsel would have met privately with Ms. Concordia and

considered the information received in rendering a legal opinion” and that

even if “a lawyer for UPMC was present and offered legal advice, a non-

lawyer’s presentation to the Board of Directors meets none of the

requirements for an attorney-client relationship.” Id. It ordered that UPMC

divulge all of the materials outlined in interrogatories 23 and 24.

We first conclude that the attorney-client privilege can apply to a

meeting of the governing board of an organization with its executive vice-

president and that the attorney-client privilege potentially applies to the

information requested in these interrogatories. We also find that a board of

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directors of a professional health care provider can conduct peer review. We

remand for UPMC to produce for in camera review the information requested

in interrogatories 23 and 24 so that it can be determined to what extent

either asserted privilege applies to any of the requested information.

The attorney-client privilege is derived from the common law, In re

Thirty-Third Statewide Investigating Grand Jury, supra, but is also

codified at 42 Pa.C.S. § 5928, which states: “In a civil matter counsel shall

not be competent or permitted to testify to confidential communications

made to him by his client, nor shall the client be compelled to disclose the

same, unless in either case this privilege is waived upon the trial by the

client.” As we observed in In re Thirty-Third Statewide Investigating

Grand Jury, supra, “The attorney-client privilege is intended to foster

candid communications between counsel and client, so that counsel may

provide legal advice based upon the most complete information from the

client.” Id. at 216. Since the purpose of the attorney-client privilege “is to

create an atmosphere that will encourage confidence and dialogue between

attorney and client, the privilege is founded upon a policy extrinsic to the

protection of the fact-finding process.” Id. at 216-17. The actual

beneficiary of this policy is not only the client but also the justice system,

which “depends on frank and open client-attorney communication.” Id. at

217.

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For a party to invoke the privilege, the following elements must be

established:

1) The asserted holder of the privilege is or sought to become

a client.

2) The person to whom the communication was made is a

member of the bar of a court, or his subordinate.

3) The communication relates to a fact of which the attorney

was informed by his client, without the presence of strangers, for

the purpose of securing either an opinion of law, legal services or

assistance in a legal matter, and not for the purpose of

committing a crime or tort.

4) The privilege has been claimed and is not waived by the

client.

Red Vision Systems, Inc., supra at 62-63 (citation omitted). Additionally,

when “the client is a corporation, the privilege extends to communications

between its attorney and agents or employees authorized to act on the

corporation's behalf.” Id. at 60 (citation omitted).

Initially, we note that UPMC facially invoked this privilege in its

answers to interrogatories. While the trial court speculated that Ms.

Concordia’s presentation was merely to apprise the Board of the situation,

UPMC indicated the contrary in its answers to the two interrogatories. It

asserted that the Board meeting was called in part to review what happened

and seek legal advice. Although it did not identify the individuals by name,

UPMC maintained that a lawyer or lawyers were present. Given the gravity

of the situation and the inevitable filing of a lawsuit by Mr. Yocobet and Ms.

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Meccanic, it is reasonable and appropriate that the UPMC Board was eliciting

legal advice from its lawyers.

We reject the postulation that a corporate entity can obtain legal

advice only when one of its high-ranking officials meets privately with

counsel for advice on behalf of the corporation. As we noted in Petrina v.

Allied Glove Corp., 46 A.3d 795, 799 (Pa.Super. 2012) (citations omitted;

emphasis added),

A corporation is a creature of legal fiction, which can act or

“speak” only through its officers, directors, or other agents.

Where a representative for a corporation acts within the scope of

his or her employment or agency, the representative and the

corporation are one and the same entity, and the acts performed

are binding on the corporate principal.

Thus, the board of directors of a corporation, in addition to its officers, can

act on its behalf for purposes of application of the attorney-client privilege.

During the May 11, 2011 Board meeting, Ms. Concordia, a high

ranking official at UPMC, was discussing the kidney donor program and this

kidney transplant with its governing board. Since the meeting may well

have been called to seek legal advice from the lawyers present, it was

improper to reject outright the privilege without examination of the factual

basis for application of the privilege. The fact that Ms. Concordia was

communicating by making a presentation is of no consequence since in

Pennsylvania, “the attorney-client privilege operates in a two-way fashion to

protect confidential client-to-attorney or attorney-to-client communications

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made for the purpose of obtaining or providing professional legal advice.”

Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011).

Additionally, we find that UPMC facially invoked the peer review

privilege. As noted earlier, peer review consists of a “procedure for

evaluation by professional health care providers of the quality and efficiency

of services ordered or performed by other professional health care

providers.” 63 P.S. § 425.2. UPMC is a professional health care provider.

Id. (a professional heath care provider includes “a corporation or other

organization operating a hospital[.]”). Id. A review organization includes

“any hospital board, committee or individual reviewing the professional . . .

activities of its medical staff[.]” During its May 11, 2011 meeting, the Board

may have been engaging in peer review. UPMC, in its objections to

interrogatories 23 and 24, made the appropriate proffer as to the

applicability of the peer review privilege.

Thus, we conclude that UPMC was improperly ordered to reveal to the

plaintiffs all of the information sought in the two interrogatories. Rather, in

camera review7 of the minutes of the meeting, the information disseminated

____________________________________________

7

The plaintiffs claim that UPMC has refused to submit documents to in

camera review for purposes of determining whether a privilege prevents

their dissemination to plaintiffs. Specifically, they assert:

What is most interesting is that when the Special Master

indicated that she may review [certain] documents in camera,

(Footnote Continued Next Page)

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by Ms. Concordia, and any documents8 submitted to the meeting attendees

is warranted.

In T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa.Super. 2008), Elwyn, the

appellant, asserted that a broadly-worded discovery order required it to

reveal documents protected by the attorney-client privilege and the attorney

work product doctrine and that the discovery order should have provided for

the exclusion of documents encompassed by either of the two privileges.

We noted that we could not determine, based upon the record, whether and

to what extent either privilege applied to the items ruled discoverable in the

order on appeal, and we reversed the discovery order. Significant herein is

_______________________

(Footnote Continued)

UPMC threatened an immediate appeal. In any event, Plaintiffs

have a good-faith basis to believe that UPMC's narrative - that

this was a single isolated event — would be proven patently false

if UPMC ever has to produce any meaningful discovery

documents or information. To date, since UPMC has not

produced any of the requested documents, Plaintiffs are left with

nothing but UPMC's narrative and no way to substantively

challenge the same.

Appellees’ brief at 15 (appeal No. 1230 WDA 2014).

T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa.Super. 2008), as discussed in

the text, provides that in camera review is to be undertaken if such review is

needed to determine if a privilege is applicable to an item requested in

discovery. We remind UPMC that the case law mandates in camera review,

in appropriate circumstances, of items in a privilege log.

8

We refer to our discussion in the body of the text supra as to the types of

documents that have confidentiality for purposes of the Act. Documents

submitted at the May 11, 2011 Board meeting would not automatically be

privileged simply due to their submission to a peer review process.

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the fact that we concluded that Elwyn had to create a privilege log and that

the trial court had to issue a ruling as to the discoverability of each

document placed in the log and sought by the opposing party.

We reminded Elwyn that, “as the party invoking these privileges, it

must initially set forth facts showing that the privilege has been properly

invoked” before the burden shifted to the party asking for disclosure “to set

forth facts showing that disclosure will not violate the attorney-client

privilege, e.g., because the privilege has been waived or because some

exception applies.” Id. at 1063 (citation and quotation marks omitted). We

continued that if, “upon remand, Elwyn is able to identify certain materials

encompassed in the discovery request that are subject to the attorney-client

privilege or work product doctrine, then the trial court will be able to assess

whether those materials are discoverable.” Id. We remanded with the

notation that “the court may conduct in camera review of documents

identified by Elwyn to be subject to a privilege, to better analyze the

privilege issues, as needed.” Id.; see also Gocial v. Independence Blue

Cross, 827 A.2d 1216, 1223 (Pa.Super. 2003) (trial court improperly

required disclosure of all materials contained in a privilege log; trial court

had to “rule on the relevance of each item or explain why the privileges

raised were inapplicable;” in “some instances, in camera review may be

required”).

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As it applies to the present case, T.M. provides that, since UPMC

raised the appropriate allegations that the attorney-client privilege and/or

peer review privilege potentially applied, the trial court could not require

disclosure without examining the requested documents in camera to

determine whether and to what extent the privileges applied to

interrogatories numbered 23 and 24. We direct the creation of a privilege

log, as mandated by T.M. and 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. Thus, at appeal number 1230

WDA 2014, the June 26, 2014 order is reversed and the matter is remanded

for proceedings consistent with this decision.

At 569 WDA 2014, the March 11, 2014 order is affirmed. At 1230

WDA 2014, the June 26, 2014 order is reversed. Case remanded.

Jurisdiction relinquished.

Judge Olson joins the opinion.

Judge Strassburger files a concurring and dissenting opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/5/2015

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