The Shrinking Scope of the Peer Review Protection Act

By Brett C. Shear, Esq.*

The Peer Review Protection Act is an important Pennsylvania statute that aims to provide an incentive for health care providers, practice groups and hospitals to police themselves by seeking peer review when something goes wrong. The statute provides that the proceedings and records of a review committee shall not be subject to discovery or introduction into evidence in any civil action against the health care provider, practice group or hospital. It further provides that no person who was in attendance at a peer review committee meeting shall be permitted or required to testify in any civil action as to the proceedings of the committee or as to any findings, recommendations, evaluations, opinions or other actions of the committee.

Since it became effective more than 40 years ago, the Peer Review Protection Act’s confidentiality protections for peer review records, proceedings and findings has been under continuous attack by lawyers seeking to use that information against providers in litigation. In many respects, those efforts have been successful as the courts continue to narrow the protections of the Act. For example, the courts have refused to apply the Act’s protections to the findings of an insurer’s credentialing committee and certain HMOs. Pennsylvania’s courts have also found that the privilege may be waived where a health care provider supplies materials obtained through the peer review process to the United States Attorney’s Office or a state medical board. The courts have further refused to protect investigation findings and incident reports that are not generated by or for a peer review committee as part of a quality assurance assessment. It has also been our experience that courts will not uphold the confidentiality of materials that are generated in the normal course of business regardless of whether the provider entitles or refers to those materials as “peer review.” A three-judge panel of the Pennsylvania Superior Court issued an opinion on June 5, 2015, in Yocabet v. UPMC Presbyterian, et. al., 2015 Pa. Super. LEXIS 325 (Pa.Super. June 5, 2015), which limited the protections of the Act even further.

The Yocabet case involved a kidney transplant where pre-surgical blood tests revealed that the donor was positive for Hepatitis C. Before the transplant, at least four medical professionals and the transplant selection committee documented review of the donor’s lab results and approved her as an acceptable donor. After all of this came to light, the Pennsylvania Department of Health (DOH), on behalf of the Centers for Medicare and Medicaid Services, conducted an investigation of the hospital’s transplant program. In order to conduct the investigation, DOH engaged doctors and nurses to obtain and review documents and interviews from hospital personnel. In the litigation, the plaintiffs’ attorneys sought the communications that the hospital submitted to DOH in connection with the investigation. The hospital objected, arguing that the communications were protected peer review materials.

The Pennsylvania Superior Court held that the communications were not protected. In reaching its decision, the court noted that the purpose of the peer review protection is to facilitate self-policing in the health care industry and only applies to proceedings and records of a review committee. Further, the court indicated that a peer review is limited to an evaluation by professional health care providers of the quality and efficiency of services rendered by other health care providers.

Applying these limitations, the court held that the hospital’s communications with DOH were not protected peer review materials because the DOH, itself, was not a professional health care provider and did not become one merely because it hired doctors and nurses to conduct the investigation. Additionally, the DOH investigation did not constitute self-policing by the health care industry. Based on these findings, the court held that DOH was not conducting peer review.

Furthermore, even if the investigation were a peer review, the Act only protects the proceedings and records of a review committee; it does not protect information or documents submitted to a committee that are otherwise available from their original source. The documents requested in the litigation were not generated as a result of the peer review process and, therefore, were not entitled to protection.

Yocabet is yet another reminder that Pennsylvania’s courts often narrowly construe the protections provided by the Peer Review Protection Act. It is clear that the courts will strictly apply the Act’s definition of peer review. It is important to recognize that not every post-event investigation constitutes protected peer review. Furthermore, not every document reviewed by a peer review committee or generated after an event will be protected. Nor are documents or interviews provided to government agencies necessarily going to be protected as peer review.

To ensure that documents and findings generated by the peer review committee are protected by outside eyes, hospitals and health systems need to have policies in place to ensure that peer reviews are conducted in accordance with the Act’s requirements and that the protections are not waived. It is equally important to understand what does and does not constitute “peer review.” In this way, hospitals and health systems may correctly discern whether information will be protected as confidential and avoid a court order that the information be turned over to an adversary.

*Brett is an associate working in our Pittsburgh, Pennsylvania office. He can be reached at 414.803.3461 or bcshear@mwcg.com.

_{Defense Digest, Vol. 21, No. 3, September 2015}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2015 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}