Superior Court Further Dilutes Protection Provided to Privileged Documents Under Peer Review Protection Act
Last week, the Pennsylvania Superior court decided Ungurian v. Beyzman, et.al., 2020 Pa. Super. 105 (April 28, 2020), which further dilutes the protection provided to documents that are claimed to be privileged, and not subject to disclosure, under the Patient Safety Quality Improvement Act, 42 U.S.C. §299b (PSQIA) and the Pennsylvania Peer Review Protection Act, 63 P.S. §425.4 (PRPA).
The documents the hospital claimed were privileged included an Event Report, Root Cause Analysis, Serious Safety Event Rating Meeting Summary, Patient Safety Committee Meeting Minutes and credentialing files. The court reviewed PSQIA and PRPA and found that none of the documents were protected based upon the record established in this case.
The PSQIA defines “patient safety work product” as “any data, reports, memoranda, analyses (such as root cause analyses), or written or oral statements . . . which . . . are assembled or developed by a provider for reporting to a patient safety organization and are reported to a patient safety organization.” The burden is on the party who claims the privilege to present facts and evidence to show that the documents withheld fall within the protection of either the PSQIA or PRPA. Under PSQIA, an event report completed on the day of an incident in compliance with the hospital’s “event reporting policy” is not a document which is developed to report to a patient safety officer and is not protected. A root cause analysis which was not contained solely within the Patient Safety Evaluation System is similarly not protected. Under the PRPA, an event report not generated in the course of peer review is merely a business record of the hospital and not privileged. To ensure protection, the party asserting the privilege must show the entire peer review committee was comprised of professional health care providers and that, absent such a showing, documents generated in a peer review process are not privileged.
Similarly, in order to provide protection to a “Serious Safety Event Rating” meeting summary, all members of the peer review committee must be identified as professional health care providers. In this case, since the Patient Safety Committee was comprised of individuals other than professional health care providers, the meeting minutes were not privileged. With regard to the credentialing files, the court reaffirmed the holdings in Reginelli v. Boggs, 181 A.3d 293, 306 n.13 (Pa. 2018) and Estate of Krappa v. Lyons, 211 A.3d 869, 875 (Pa. Super. 2019), appeal denied, 222 A.3d 372 (Pa. 2019), which held that credentialing files were not entitled to protection under the PRPA.
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