Est. of: Krappa, L. v. Lyons, M.

J-A06024-19

2019 PA Super 168

ESTATE OF LEONARD P. KRAPPA, : IN THE SUPERIOR COURT OF

DECEASED, BY AND THROUGH HIS : PENNSYLVANIA

ADMINISTRATOR, LEONARD A. :

KRAPPA, AND MARGARET KRAPPA, :

INDIVIDUALLY AND IN HER OWN :

RIGHT :

:

:

v. : No. 822 MDA 2018

:

:

MARK LYONS, D.O.; FRANK PIRO, :

M.D.; JONATHAN C. SULLUM, M.D.; :

JUAN C. BARRERA, M.D.; JAMES :

FRANGOS, M.D.; LOUIS :

DEGENNARO, M.D.; AND :

COMMUNITY MEDICAL CENTER :

:

:

APPEAL OF: COMMUNITY MEDICAL :

CENTER :

Appeal from the Order Entered April 11, 2018

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

No(s): 2012 CIV 581

BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.*

OPINION BY NICHOLS, J.: FILED: MAY 23, 2019

Appellant Community Medical Center appeals from the order granting

the emergency motion to compel discovery1 filed by Appellees Estate of

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* Retired Senior Judge assigned to the Superior Court.

1 “[M]ost discovery orders are deemed interlocutory and not immediately

appealable because they do not dispose of the litigation.” Veloric v. Doe,

123 A.3d 781, 784 (Pa. Super. 2015). Nevertheless, “An appeal may be taken

as of right from a collateral order of [a] . . . lower court.” Pa.R.A.P. 313(a).

J-A06024-19

Leonard Krappa, deceased, by and through his administrator, Leonard A.

Krappa, and Margaret Krappa, individually and in her own right. Appellant

claims the trial court erroneously granted the emergency motion to compel,

because Appellees sought the production of documents that are privileged

under the Peer Review Protection Act2 (PRPA). We affirm.

The trial court opinion set forth the relevant facts of this appeal as

follows:

[Appellees] initiated this medical malpractice action . . . in January

2012 alleging a delay in the diagnosis of cancer.

In [the] complaint, [Appellees] raised thirteen (13) counts against

multiple Defendants. Pertaining to this appeal, Count II asserts a

negligence claim against Frank Piro, M.D. with respect to his

interpretation of a CT scan in January 2008. Count VII asserts a

claim of direct negligence against [Appellant]. Count VIII asserts

a corporate liability claim against [Appellant] with respect to the

hiring, training, and/or supervising physicians, including Dr. Piro.

Count IX asserts a claim of vicarious liability against [Appellant,]

alleging [Appellant] is responsible for the actions or inactions of

its employees and/or agents, including Dr. Piro. Count X asserts

a claim of ostensible agency against [Appellant] with respect to

Dr. Piro. In addition, the complaint asserts claims for wrongful

death, survival action, and loss of consortium.

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“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.” Pa.R.A.P. 313(b). “When a

party is ordered to produce materials purportedly subject to a privilege, we

have jurisdiction under Pa.R.A.P. 313 . . . .” Yocabet v. UPMC Presbyterian,

119 A.3d 1012, 1016 n.1 (Pa. Super. 2015) (citation omitted).

2 63 P.S. §§ 425.1-425.4.

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During the course of discovery, [Appellees] sought unredacted

copies of [Appellant’s] files for Drs. Piro and Sabbar. [Appellant]

and Dr. Piro objected to the production and asserted the

information requested was privileged pursuant to the [PRPA].

Trial was scheduled to begin on April 9, 2018. On April 5, 2018,

[Appellees] filed an emergency motion to compel [Appellant] to

produce the unredacted and complete credentialing materials for

Drs. Piro and Sabbar. In [the] motion, [Appellees] sought

production of unredacted credentialing files,[3] based on the

recently decided Pennsylvania Supreme Court decision Reginelli

v. Boggs, 181 A.3d 293 (Pa. 2018).[4]

Oral argument was heard on Friday, April 6, 2018. [At that time,

Appellant asserted that Reginelli was inapplicable. Appellant

argued that its credentialing committee constituted a “review

committee” whose records must remain confidential under the

PRPA. Further, Appellant insisted that the performance

evaluations in its files satisfied the PRPA’s definition of “peer

review” materials.] On Monday, April 9, 2018, [the trial] court

conducted an in camera review of the . . . unredacted credentialing

files for both Drs. Piro and Sabbar. Additional oral argument was

heard on April 10, 2018. On April 11, 2018, [the trial] court

entered an order compelling the production of the unredacted . .

. files [generated by Appellant’s credentialing committee]

pursuant to Reginelli.

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3 Specifically, Appellees’ motion requested

the complete, unredacted credential and personnel files of Drs.

Piro and Sabbar setting forth their qualifications or lack thereof,

in the materials submitted in support of those applications, the

circumstances under which they were hired and the manner in

which their employment with [Appellant’s] Radiology Department

ended and/or was terminated. Additionally, [Appellant] should be

directed to produce any memorandum or writing confirming the

nature of the relationships between CMC Radiology, Defendant Dr.

Piro, Dr. Sabbar, Foundation Radiology and [Appellant].

Emergency Mot. to Compel, 4/5/18, at 12-13.

4 The Pennsylvania Supreme Court decided Reginelli on March 27, 2018.

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On May [10], 2018, [Appellant] filed a notice of appeal. On June

22, 2018, [the trial] court entered an order granting [Appellant’s]

request for a stay pending appeal.

Trial Ct. Op. 7/23/18, at 1-2 (unpaginated).

The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. On July 23, 2018, the court filed

an opinion pursuant to Pa.R.A.P. 1925(a). The court asserted that Appellees

sought to obtain credentialing materials for Drs. Piro and Sabbar and such

materials are discoverable under Reginelli.

Appellant now presents one question for this Court’s review:

Did the trial court err, as a matter of law, in construing Reginelli

. . . as announcing a blanket rule depriving all previously-

protected credentialing committee materials of peer review

protection, when the issue of a credentialing committee’s review

of physician performance was not before the Supreme Court; to

the extent the Supreme Court addressed credentialing materials,

it limited its discussion to that part of the credentialing process

concerned only with factual review of professional qualifications,

such as board certifications, and professional activities, such as

service on professional organizations; and the Court reaffirmed

that the peer review privilege protects the records of any review

committee when one professional health care provider is

evaluating the performance of another professional healthcare

provider?

Appellant’s Brief at 4 (quotation marks omitted).

Appellant maintains that the trial court overruled Appellant’s “claim of

peer review protection for the performance evaluation materials contained in

the credential files for Dr. Piro and Dr. Sabbar.” Id. at 11. Appellant contends

that its “credentialing committee records relating to peer evaluations,

performance appraisals, and responses to [National Practitioner Data Bank]

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queries, for the initial appointment and reappointment of Dr. Piro and Dr.

Sabbar, which were generated for quality improvement purposes and

maintained exclusively by the committee, fall squarely within the PRPA. . . .”

Id. at 24.

Appellant insists that the Pennsylvania Supreme Court “has consistently

held that performance evaluation by a review committee constitutes protected

peer review.” Id. at 17. Appellant asserts that Reginelli “did not question

whether performance evaluation constitutes protected peer review, but only

whether the performance review in that case was conducted by a qualified

review committee.” Id. Further, Reginelli “did not decide to revoke peer

review protection afforded to performance evaluation by a credentialing

committee.” Id. at 18.

To the extent Reginelli discussed the credentialing review process,

Appellant states that such discussion amounts to dicta. Id. at 23. Based

upon the foregoing, Appellant argues that the trial court “erred as a matter of

law in construing Reginelli as announcing a blanket rule stripping peer review

protection from performance evaluations by a credentialing committee.” Id.

at 23-24. Appellant concludes that this Court must reverse the order granting

Appellees’ emergency motion to compel. Id. at 25.

“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.” Yocabet, 119 A.3d at 1019 (quotation marks and citations

omitted).

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The PRPA provides the following evidentiary privilege:

§ 425.4. Confidentiality of review organization’s records

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 used in any such civil action merely 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 (emphasis added).

The PRPA also defines the following pertinent terms:

§ 425.2. Definitions

As used in this act:

“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.

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* * *

“Review organization” means 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.

In Reginelli, Monongahela Valley Hospital (MVH) contracted with UPMC

Emergency Medicine, Inc. (ERMI) to provide staffing and administrative

services for MVH’s emergency room. The plaintiff went to MVH’s emergency

room and received treatment from Dr. Boggs. Thereafter, the plaintiff pursued

a medical malpractice action against Dr. Boggs, MVH, and ERMI.

During discovery, the plaintiff deposed Dr. Walther, an ERMI employee

who served as the director of MVH’s emergency department and Dr. Boggs’

supervisor. Dr. Walther testified that she prepared and maintained a

performance file on Dr. Boggs as part of her regular practice of reviewing

randomly selected charts associated with the patients Dr. Boggs had treated.

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The plaintiff subsequently filed a discovery request seeking the complete

performance file for Dr. Boggs maintained by Dr. Walther. MVH, ERMI, and

Dr. Boggs raised various objection to the production of the file, including

assertions that it was privileged under the PRPA. Ultimately, the trial court

ordered MVH to supply Dr. Boggs’ performance file to the plaintiff, and this

Court affirmed the trial court’s order.

The Pennsylvania Supreme Court granted allowance of appeal to

determine whether ERMI and MVH had any entitlement to the PRPA’s

evidentiary privilege with respect to the performance file. The Supreme Court

engaged in statutory interpretation of the pertinent provisions of the PRPA and

determined, “the PRPA’s evidentiary privilege is reserved only for the

proceedings and documents of a review committee.” Reginelli, 181 A.3d

at 304 (citation omitted) (emphasis in original). The Reginelli Court

reasoned:

the terms “review committee” and “review organization” are not

interchangeable, as they connote distinct types of entities under

the PRPA. The first sentence of the definition of “review

organization” defines the type of entity that constitutes a “review

committee,” namely, “any committee engaging in peer review.”

The second sentence, in contrast, contains no reference to peer

review, and instead refers to a “hospital board, committee or

individual” involved in the review of “the professional

qualifications or activities of its medical staff or applicants thereto”

by a “hospital board, committee or individual.”[fn10] This second

category of “review organizations” does not involve peer review,

as that term is defined in the PRPA, which is limited to the

evaluation of the “quality and efficiency of services ordered or

performed” by a professional health care provider. Review of a

physician’s credentials for purposes of membership (or continued

membership) on a hospital’s medical staff is markedly different

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from reviewing the “quality and efficiency of service ordered or

performed” by a physician when treating patients. Accordingly,

although “individuals reviewing the professional

qualifications or activities of its medical staff or applicants

for admission thereto,” . . . are defined as a type of “review

organization,” such individuals are not “review

committees” entitled to claim the PRPA’s evidentiary

privilege in its section 425.4.

[fn10] Professional “qualifications” would include, for

instance, a physician’s continuing maintenance of his or her

board certifications, and “activities” could include clinical

research initiatives, continuing education, service on

professional committees or organizations and, more broadly

speaking, other qualifications deemed necessary by the

hospital. Credentials review permits a hospital to retain,

and then maintain, a medical staff of quality professionals.

Id. at 305-06 (citations and some footnotes omitted) (emphasis added).

Therefore, the Reginelli Court indicated that the PRPA does not extend

its grant of an evidentiary privilege to materials that are generated and

maintained by entities reviewing the professional qualifications or activities of

medical staff “i.e., credentials review.” Id. at 306. Additionally, “the

performance file [in Reginelli] was not generated or maintained by MVH’s

peer review committee,” and the PRPA’s evidentiary privilege did not apply.

Id. at 296.

Instantly, the trial court conducted an in camera review and determined

that the files at issue “consist entirely of credentialing materials of Drs. Piro

and Sabbar.” Trial Ct. Op. at 4 (unpaginated). This Court has conducted its

own review of the files, which the parties transmitted under seal with the

certified record. Our review confirms the trial court’s finding.

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Regarding the applicability of the PRPA, the materials in the doctors’

personnel files are generated and maintained by Appellant’s credentialing

committee. The PRPA’s protections do not extend to the credentialing

committee’s materials, because this entity does not qualify as a “review

committee.” See Reginelli, 181 A.3d at 306. Accordingly, the trial court did

not err in its interpretation of the PRPA, and Appellant is not entitled to relief

on its claim.5 See Yocabet, 119 A.3d at 1019.

Order affirmed. Appellee’s application to strike Dr. Piro’s brief denied

as moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2019

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5In light of our disposition, we deny as moot Appellees’ application to strike

Dr. Piro’s brief.

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