J-A03020-23
2023 PA Super 163
WAKEEM FORD-BEY, : IN THE SUPERIOR COURT OF ADMINISTRATOR OF THE ESTATE OF : PENNSYLVANIA WANETTA FORD-BEY : : : v. : : : PROFESSIONAL ANETHESIA : No. 162 EDA 2022 SERVICES, JOEL D. SOKOLOFF, M.D., : THOMAS MADDALONI, CRNA, SCOTT : WILSON, CRNA, AND PHYSICIAN'S : CARE SURGICAL HOSPITAL, LP : : : APPEAL OF: PHYSICIAN'S CARE : SURGICAL HOSPITAL, LP :
Appeal from the Order Entered December 7, 2021 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2017-02996
BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*
OPINION BY SULLIVAN, J.: FILED SEPTEMBER 12, 2023
Physician’s Care Surgical Hospital (“Hospital”) appeals from the
discovery order requiring Hospital to produce documents to Wakeem Ford-Bey
(“Appellee”), administrator of the estate of Wanetta Ford-Bey (“Ms. Ford-
Bey”). Hospital has also filed a petition for permission to appeal from the
amended discovery order denying its request for a certification of immediate
appealability. See Pa.R.A.P. 1311(a)(1). We affirm and deny Hospital’s
petition for allowance of appeal as moot.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A03020-23
Ms. Ford-Bey underwent wrist surgery at Hospital. See Complaint,
2/13/17, at ¶ 25. Shortly after the surgery, Ms. Ford-Bey suffered cardiac
and respiratory failures that required her transfer to another facility for further
care. See id. at ¶¶ 27-28. A nurse internally reported the incident pursuant
to Hospital’s “Sentinel Event Policy” (or “Policy”).1 See Hospital’s Responses
to Appellee’s Supplemental Request for Production of Documents (Set X),
4/3/19, at ¶ 1. Lisa Gill (“Gill”), who holds several titles at Hospital, conducted
a “root cause analysis” to determine the cause of Ms. Ford-Bey’s decline. See
Hospital’s Response and Opposition to Appellee’s Motion to Strike Objections
and Compel Hospital’s Responses, 8/2/19, at ¶ 24; Hospital’s Sur-Reply to
Appellee’s Motion to Strike Objections and Compel Hospital’s Responses,
10/23/19, at 5.
On June 17, 2015, Gill interviewed Hospital staff members involved in
Ms. Ford-Bey’s surgery and care. See Hospital’s Response and Opposition to
Appellee’s Motion to Strike Objections and Compel Hospital’s Responses,
8/2/19, at ¶ 24. Gill took notes on a three-page form containing standard
questions. The parties agree that Gill authored at least one report that she
sent to the Pennsylvania Patient Safety Authority (“PPSA”), an independent
agency established under the Medical Care and Reduction of Error Act
1 Hospital was formed and funded by Nueterra Holding’s LLC (“Nueterra”), a
Kansas company. Nueterra, through its related entities, provides Hospital with its management, staff, and internal policies, including the Policy.
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(“MCARE”), 40 P.S. §§ 1303.101-1303.910.2 See N.T., 9/17/21, at 26-27.
Ms. Ford-Bey remained in a vegetative state after the surgery and died in July
2015.
Appellee commenced the underlying medical malpractice action against
Hospital and several other defendants. During discovery, Appellee requested
from Hospital all data and documents from the root cause analysis. See
Hospital’s Response to Appellee’s Supplemental Request for Production of
Documents (Set IV), 8/1/17, at ¶ 15. Hospital objected based on privilege,
and Appellee moved to strike the objections. See id.
Hospital responded to Appellee’s motion to strike and asserted that
materials from the root cause analysis arose out of Hospital’s performance of
its MCARE obligations and that section 311(a) of MCARE protected such
materials from disclosure in a civil proceeding. See Hospital’s Response and
Opposition to Appellee’s Motion to Strike Objections and Compel Hospital’s
Responses, 8/2/19, at ¶ 24; see also 40 P.S. § 1303.311(a). In support of
its claim of confidentiality, Hospital provided the trial court with a copy of its
Sentinel Event Policy.
The Policy, upon which Hospital relied, establishes the procedures for
reporting a “sentinel event”3 and provides that Hospital will conduct a “root ____________________________________________
2 See 40 P.S. §§ 1303.303 (establishing the PPSA); 1303.304 (stating the duties of the PPSA); 1303.313 (imposing a duty on medical facilities to report to the PPSA and the Pennsylvania Department of Health).
3 A “sentinel event” under the Sentinel Event Policy means an “[u]nexpected
adverse occurrence involving death . . . or the risk thereof.” Policy at 1.
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cause analysis . . . to determine the basic, causative factor(s) that led to the
event.” Policy at 1. An “administrative team” and the Hospital’s director of
performance improvement also review the notification of a sentinel event. Id.
at 1. They determine whether an “intensive assessment resulting in a root
cause analysis” is required, and, if necessary, form a team to conduct a root
cause analysis. Id. at 1-2. The root cause analysis may result in an action
or improvement plan, which the team will report to an “organizational
administrative team,” a “performance improvement committee,” and the
Hospital’s “governing body,” and, at the direction of the “administrative team,”
to other Hospital committees. Id. at 2 (some capitalization omitted). The
root cause analysis may also result in corrective actions managed through
“the medical staff committee” process, a “department manager,” or through
“the organizational performance improvement model,” depending upon the
cause of or factors related to the event. Id. The Policy states that Hospital’s
“Administrator/CEO” has the sole discretion to communicate the event or
corrective action to “other organizations or individuals.” Id.
Additionally, Hospital referred to Appellee’s deposition of Christopher
Doyle (“Doyle”), the Chief Executive Officer and corporate designee of
Hospital. See Hospital’s Sur-Reply in Further Support of Response and
Opposition, 10/23/19, at 7-9. Of relevance to this appeal, Doyle testified
about Hospital’s boards and committees, its policies, and the specific root
cause analysis that Gill conducted after Ms. Ford-Bey’s respiratory failure
following her surgery. Specifically, Doyle noted that Hospital did not have a
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committee specifically designated a “patient safety committee,” as is required
by MCARE, but later testified that Hospital’s Committee on Quality Initiatives
(“CQI”) is the “primary safety committee” that will “review safety” during its
meetings and receives reports of all incidents at Hospital. See Doyle
Deposition, 10/1/19, at 40-41.4 Doyle described how the nurse’s internal
incident report regarding Ms. Ford-Bey’s cardiac and respiratory failures went
to Hospital’s risk manager and the director of nursing, then to Gill. See id. at
44-45. Doyle testified that the incident report triggered the Policy, which, in
turn, caused Gill to conduct the root cause analysis. See id. at 80, 105, 115.
Doyle described Gill’s corporate titles as “possibly” Hospital’s patient safety
officer, and as Hospital’s director of quality and accreditation, the
“performance improvement department,” and a senior clinical nurse. See id.
at 44-45, 81. He could not recall if Gill submitted a report concerning Ms.
Ford-Bey to the CQI, but recalled discussions of the event. See id. at 119.
Following oral arguments, the trial court struck Hospital’s objections and
on December 7, 2021, ordered Hospital to produce “any notes of Lisa Gill
pertaining to the root cause analysis she conducted on June 17, 2015.” Order,
4 Doyle also later referred to a “patient safety committee” as a subcommittee
of the CQI. See id. at 41-43. Doyle was not able to recall the CQI’s or the patient safety committee’s members. Hospital, in later discovery responses, identified the membership of the CQI and a patient safety subcommittee.
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12/7/21.5 Hospital timely appealed, and both Hospital and the trial court
complied with Pa.R.A.P. 1925.
Hospital raises the following issues for our review:
1. Whether this appeal, which arises from the trial court’s [o]rder compelling disclosure of material that is privileged under [s]ection 1303.311(a) of [MCARE] falls within th[is] Court’s appellate jurisdiction to review collateral orders.
2. Whether information gathered in accordance with an internal hospital policy “arise[s] out of” the hospital’s duties under MCARE, such that the information is privileged pursuant to [s]ection 1303.311(a) . . ..
Hospital’s Amended Brief at 4.
In its first issue, Hospital invokes the collateral order doctrine. See id.
at 17-24. This issue implicates this Court’s jurisdiction and involves a question
of law, over which our standard of review is de novo, and our scope of review
is plenary. See Calabretta v. Guidi Homes, Inc., 241 A.3d 436, 441 (Pa.
Super. 2020).
Pennsylvania Rule of Appellate Procedure 313 permits an immediate
appeal as of right from an otherwise interlocutory order where the appellant ____________________________________________
5 Hospital timely filed a motion for reconsideration and a petition to certify the
December 7, 2021 order for an immediate appeal pursuant to 42 Pa.C.S.A. § 702(b). On December 27, 2021, the trial court granted Hospital reconsideration, in part, and amended its order to permit Hospital to withhold the report that Gill submitted to the PPSA. See Amended Order, 12/27/21, at 1 (stating that “the subsequent report authored and submitted by . . . Gill to the [PPSA] does not have to be produced as per agreement of the parties and counsel”). The amended order also denied Hospital’s request for certification for immediate appeal. Hospital, as noted above, has filed in this Court a Rule 1311 petition for permission to appeal in conjunction with its timely notice of appeal.
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demonstrates that the order appealed from meets the following elements: (1)
it is separable from and collateral to the main cause of action; (2) the right
involved is too important to be denied review; and (3) the question presented
is such that if review is postponed until final judgment in the case, the claim
will be irreparably lost. See Pa.R.A.P. 313(b); see also Witt v. LaLonde,
762 A.2d 1109, 1110 (Pa. Super. 2000). To establish a collateral order, each
of the three requirements must be clearly present. See J.S. v. Whetzel, 860
A.2d 1112, 1117 (Pa. Super. 2004).
Before addressing Hospital’s arguments, it is helpful to outline the
framework of MCARE’s reporting requirements. Chapter 3 of MCARE, entitled
“Patient Safety” (“Chapter 3”), “relates to the reduction of medical errors for
the purpose of ensuring patient safety.” 40 P.S. § 1303.301. Chapter 3 calls
for the creation of public and private offices for reporting events that result in
a patient’s death, which MCARE defines as a “serious event.” 6 Chapter 3
establishes the PPSA as an independent agency, and section 304 authorizes
the PPSA to contract with third-party entities to collect and analyze reports of
serious events, relay recommendations to medical facilities, and advise
medical facilities of immediate changes to reduce serious events. See id.
§ 1303.304(a)(5).7 ____________________________________________
6 40 P.S. § 1303.302 (defining a “[s]erious event” as “an event, occurrence
or situation involving the clinical care of a patient in a medical facility that results in death . . .”).
7 The PPSA may also receive anonymous reports from health care workers concerning serious events. See id. § 1303.304(b).
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Chapter 3 mandates that a medical facility, such as Hospital, develop
and implement a “patient safety plan” that designates a facility’s “patient
safety officer,” establishes a “patient safety committee,” and identifies internal
systems for employees to report serious events. Id. § 1303.307(b)(1)-(3).
A medical facility must submit its patient safety plan to the Pennsylvania
Department of Health for approval. See id. § 1303.307(c). Health care
workers must report serious events pursuant to this plan. See id.
§ 1303.308(a). The medical facility, in turn, must report serious events to
the Pennsylvania Department of Health and the PPSA. See id. § 1303.313.
Chapter 3 also sets requirements for the membership on a medical
facility’s patient safety committee. See id. § 1303.310(a)(2) (requiring, for
example, that a patient safety committee include at least one resident of the
community that a facility serves). Chapter 3 requires that the patient safety
officer be a member of the patient safety committee, and section 309(4)
requires the patient safety officer to report to the patient safety committee
any action she takes to promote patient safety based on investigations that
she commences pursuant her statutory duties. See id. § 1303.309(4).
Section 310(b) further mandates that a patient safety committee:
(1) Receive reports from the patient safety officer pursuant to section 309.
(2) Evaluate investigations and actions of the patient safety officer on all reports.
(3) Review and evaluate the quality of patient safety measures utilized by the medical facility. A review shall include the
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consideration of reports made under sections 304(a)(5) and (b), 307(b)(3) and 308(a).
(4) Make recommendations to eliminate future serious events and incidents.
(5) Report to the administrative officer and governing body of the medical facility on a quarterly basis regarding the number of serious events and incidents and its recommendations to eliminate future serious events and incidents.
Id. § 1303.310(b) (footnotes omitted).
Section 311 of MCARE sets forth the following confidentiality provision:
(a) Prepared materials.--Any documents, materials or information solely prepared or created for the purpose of compliance with section 310(b) or of reporting under section 304(a)(5) or (b), 306(a)(2) or (3), 307(b)(3), 308(a), 309(4), 310(b)(5) or 313 which arise out of matters reviewed by the patient safety committee pursuant to section 310(b) or the governing board of a medical facility pursuant to section 310(b) are confidential and shall not be discoverable or admissible as evidence in any civil or administrative action or proceeding. . . .
****
(c) Applicability.--The confidentiality protections set forth in subsection[] (a) . . . shall only apply to the documents, materials or information prepared or created pursuant to the responsibilities of the patient safety committee or governing board of a medical facility set forth in section 310(b).
See id. § 1303.311(a)-(c) (footnote omitted) (emphases added). The
confidentiality provision of section 311(a) thus strikes a balance between the
MCARE requirements to report and respond to serious events with assurances
that documents, material, and information prepared or created to comply with
MCARE will not be used against a facility in civil litigation.
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Following our review, we conclude that the question of confidentiality
under section 311(a) of MCARE is separable from and collateral to Appellee’s
cause of action. Further, MCARE’s confidentiality provisions involve important
rights concerning the collection and processing of information related to
patient safety, as well as the sharing of such information with governmental
agencies pursuant to Pennsylvania law. See 40 P.S. §§ 1303.310(b),
1303.311(a). Lastly, postponement of review until a final determination
would result in an irreparable loss of the rights established under MCARE.
Therefore, we conclude that we have jurisdiction pursuant to Pa.R.A.P. 313
and will address the merits of Hospital’s claims that Appellee sought
documents or information protected by section 311(a) of MCARE. See
Ungurian v. Beyzman, 232 A.3d 786, 793 & n.10 (Pa. Super. 2020).8
Hospital, in its second issue, claims that the trial court erred in its
interpretation and application of Chapter 3 of MCARE. Our standard of review
is as follows:
In reviewing the propriety of a discovery order, our standard of review is whether the trial court committed an abuse of discretion. Abuse of discretion occurs if the trial court renders a judgment that is manifestly unreasonable, arbitrary or capricious; that fails to apply the law; or that is motivated by partiality, prejudice, bias or ill-will.
Carlino E. Brandywine, L.P. v. Brandywine Village Associates, 260 A.3d
179, 195-96 (Pa. Super. 2021) (internal citations, quotations, and brackets
8 Because the collateral order doctrine applies, we deny Hospital’s petition for
permission to appeal pursuant to Rule 1311 as moot.
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omitted) (“Carlino”). When the claim of privilege requires consideration of a
question of law, such as the interpretation of a statute, our standard of review
is de novo, and the scope of our review is plenary. See Ungurian, 232 A.3d
at 794.
Pennsylvania law imposes a shifting burden of proof in disputes when
deciding whether to compel disclosure of materials over a claim of any
privilege. The party asserting a privilege must initially produce facts to
properly invoke the privilege; once properly invoked, the party seeking
disclosure bears the burden of showing that disclosure should be compelled
either because the privilege has been waived or because an exception to the
privilege applies. See Carlino, 260 A.3d at 197. If the party asserting the
privilege produces insufficient facts to invoke the privilege, then the burden
will not shift to the party seeking disclosure. See id.
Hospital claims that the trial court erred in compelling disclosure
because the evidence from its Policy and Doyle’s deposition established that
MCARE protected Gill’s notes from her root cause analysis of Ms. Ford-Bey’s
cardiac and respiratory failures. See Hospital’s Amended Brief at 16-17, 34-
36. Hospital argues that section 311(a)’s confidentiality provision only
requires that documents, materials, or information created or prepared by Gill
“arise out of a” patient safety committee’s or governing board’s duties to
review matters under section 310(b). Id. at 15-16 (quoting 40 P.S.
§ 1303.311(a)). Hospital engages in a statutory interpretation analysis and
maintains that section 311(a)’s confidentiality provision does not require that
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a board of directors or a patient safety committee actually examine or review
a root cause analysis. See id. at 31, 33. Hospital further claims that the
Policy and Hospital’s implementation of its board and committees ensured that
Hospital complied with its MCARE requirements and are therefore “rationally
related” to MCARE. See id. at 32, 40-41. Hospital concludes that Gill’s notes
“are the manifestation of information that is solely prepared or created for
the purpose of compliance” with MCARE. Id. at 42 (internal citations and
quotations omitted) (emphasis in original).
The trial court rejected Hospital’s claim of privilege under MCARE. The
trial court observed that there are no published appellate cases analyzing
MCARE, section 311(a), but relied on a court of common pleas decision in
Venosh v. Henzes, 31 Pa. D. & C. 5th 411, 2013 WL 9593953 (Lackawanna
Cty. 2013), aff’d, 105 A.3d 788 (Pa. Super. 2014) (unpublished
memorandum).9 Applying Venosh, the trial court determined that section
9 In Venosh, the court of common pleas discerned three elements to a claim
of privilege under section 311(a): (1) the document was “solely prepared or created for the purpose of compliance with” MCARE; (2) the document “arise[s] out of matters reviewed by the patient safety committee . . . or the governing board” pursuant to section 310(b); and (3) the document is not otherwise available “from original sources.” Venosh, 2013 WL 9593953, at *10. The court further reasoned that section 311(a) did not apply “if the investigation of an incident by the defendant hospital was not commenced at the request of or by the defendant’s Patient Safety Committee” or if a patient safety committee, or the hospital’s governing board, did not review a document. Id. (internal citations and quotations omitted). It is well settled that the decision of a court of common pleas does not bind this Court, but we may consider the reasoning as persuasive. See Darrow v. PPL Elec. Utilities Corp., 266 A.3d 1105, 1112 n.6 (Pa. Super. 2021).
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311(a) did not protect Gill’s notes because the Policy was “clearly not an
implementation of the investigation or reporting requirements” of MCARE.
See Trial Court Opinion, 3/23/22, at 16. The trial court reasoned that the
Policy did not expressly refer to MCARE, did not require the Hospital’s patient
safety committee to receive reports from an investigation, and only called for
the Hospital’s governing board’s involvement in limited circumstances. See
id.
The trial court further emphasized that Hospital did not establish its
patient safety committee or governing board “in fact” reviewed Gill’s notes
from the root cause analysis. See id. at 16-17. The trial court, again citing
Venosh, concluded that absent proof that a patient safety committee or a
governing board reviewed Gill’s notes, the confidentiality provision of section
311(a) did not apply. See id. at 17.
Following our review, we concur in the trial court’s conclusion that
section 311(a) did not protect Gill’s notes. We begin with a review of MCARE’s
requirements and privileges mindful that, “[a]s with all questions of statutory
interpretation, our object is to ascertain and effectuate the intention of the
General Assembly, giving effect, if possible, to all provisions of the statutory
provisions under review” and that “[t]he best indication of legislative intent is
the statute’s plain language.” Reginelli v. Boggs, 181 A.3d 293, 300 (Pa.
2018) (citing 1 Pa.C.S.A. §§ 1921(a)-(b)).
As noted above, MCARE requires Hospital to have in place a patient
safety plan that designates a facility’s “patient safety officer,” establishes a
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“patient safety committee,” and identifies internal systems for employees to
report serious events. Id. § 1303.307(b)(1)-(3). MCARE further requires that
Hospital’s patient safety committee: (1) receives reports from the patient
safety officer; (2) evaluates investigations and actions of the patient safety
officer on all reports; (3) reviews and evaluates the quality of the facility’s
patient safety measures; (4) makes recommendations to eliminate future
serious events; and (5) reports the number of serious events and its
recommendations to an administrative officer or governing body of the facility
on a quarterly basis. See id. § 1303.310(b). In exchange for these policies
and procedures, MCARE protects “[a]ny documents, materials or information
solely prepared or created for the purpose of compliance with section 310(b)
. . . which arise out of matters reviewed by the patient safety committee
pursuant to section 310(b) or the governing board of a medical facility
pursuant to section 310(b) . . ..” Id. § 1303.311(a).
While Hospital focuses on the phrase “which arise out of matters
reviewed,” the critical term, here, is “solely.” That is, section 311(a)
confidentiality attaches to “documents, materials or information solely
prepared or created for the purpose of compliance” with the relevant MCARE
requirements. Id. (emphasis added). “Solely” means “without another or
others,” or “only, exclusively, merely, or altogether.” Webster New World
College Dictionary (4th Ed.) at 1364 (2002). Thus, for Hospital to assert a
privilege under section 311(a), it bore a burden of demonstrating that Gill’s
notes were exclusively prepared or created to comply with MCARE.
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Here, aside from Gill’s filing with the PPSA a report, which the trial court
held remained confidential, Hospital failed to produce evidence demonstrating
Gill solely prepared or created her notes for the purpose of complying with
MCARE. To the extent Hospital relied on its Sentinel Events Policy, the Policy
emanated from a Kansas corporation, and Hospital adduced no clear evidence
that the Policy implemented the special requirement of an MCARE-required
safety plan. See 40 P.S. § 1303.307(b).10 The Policy did not identify
Hospital’s MCARE-required patient safety officer or patient safety committee
or establish their duties with respect to “serious events.” Compare id.
§§ 1303.307(b)(1)-(2), 1303.308(4), 1303.310(1) with Policy at 1-2
(discussing generally that “administrative team” and Hospital’s director of
performance improvement received notifications of events and determine if a
root cause analysis is required). Doyle, Hospital’s CEO and corporate
designee, offered only equivocal testimony that Gill held several corporate
titles, and was “possibly” Hospital’s designated MCARE patient safety officer.
See Doyle Deposition, 10/1/19, at 40-45, 81. Doyle’s testimony that Hospital
CQI acted as its MCARE patient safety committee is, at best, muddled and
confusing. See id. at 40-43. Hospital presented no further evidence that its
10 Hospital did not present evidence that the Department of Health approved
the Sentinel Event Policy as an MCARE-required patient safety plan. See 40 P.S. § 1303.307(c).
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CQI or any other subcommittee met the requirements of, or discharged the
duties, of an MCARE patient safety committee. See 40 P.S. § 1303.310.11
In sum, we discern no error of law or abuse of discretion in the trial
court’s ruling that Hospital’s Sentinel Event Policy was “clearly not an
implementation of the investigation or reporting requirements” of MCARE.
See Trial Court Opinion, 3/23/22, at 16. Absent any clear evidence of
Hospital’s compliance with maintaining the offices, committees, and
procedures required Chapter 3 of MCARE, Hospital cannot demonstrate that
Gill solely prepared or created her notes during the root cause analysis to
comply with MCARE. Thus, Hospital did not meet their burden of invoking the
privilege set forth in section 311 of MCARE, and the burden did not shift to
Appellee to demonstrate waiver or an exception to the statute. For these
reasons, we agree with the trial court that the MCARE privilege did not apply,
and we affirm its order compelling disclosure of Gill’s notes.
Order affirmed. Hospital’s petition for allowance of appeal denied as
moot.
11 Even if Gill acted as an MCARE patient safety officer—as opposed to a director of quality and accreditation or some other corporate responsibility— Hospital’s evidence did not establish she met her MCARE duties to report to the patient safety committee the actions she took to promote patient safety based on investigations she commenced for a serious event. See 40 P.S. §§ 1303.309(4), 1303.310(b)(1).
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/12/2023
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