J-A15039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM KATES AND BEVERLY KATES, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellees
v.
DOYLESTOWN HOSPITAL, ET AL.,
Appellant No. 2718 EDA 2013
Appeal from the Order Entered August 15, 2013 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2011-02516
BEFORE: PANELLA, LAZARUS AND JENKINS, JJ.
MEMORANDUM BY JENKINS, J. FILED AUGUST 22, 2014
August 15, 2013 directing the Hospital to provide various records to
eges
that the documents are privileged under the Peer Review Protection Act
affirm.
The Kates allege in this action that various medical defendants,
including the Hospital, failed to
During discovery, the Kates demanded that the Hospital produce documents
Benner, reviewed in preparation for her
ee,
1 J-A15039-14
compliance with accreditation by the Joint Commission on Accreditation of
On April 11, 2013, the Kates filed a motion to compel the Hospital to
produce the documents in dispute. In response, the Hospital submitted the
following documents under seal to the court for in camera review:
spital personnel had completed the American Stroke Association's NI1-1 Stroke Scale program.
made to the night hawk program (which deals with off hours x-ray review).
nda of the Critical Care Quality Sub- Committee of the Patient Safety Committee.
Stroke Committee's Minutes, which deal with the procedures to be used for the operation of the stroke program.
-mail chains between Stroke Committee members concerning practices and procedures the hospital will use in the operation of its stroke program.
deals with stroke and disabled patients at the hospital.
-mail chains between Stroke Committee members and a Jefferson University administrator exchanging the transfer agreement (which cannot be seen) between the two hospitals.
Documents 24-26 are email chains regarding the procedures used
requests by one doctor to another asking for their input on the treatment of a patient).
etting forth the topics (procedures and practices) the Stroke Committee will need to be prepared to discuss in an upcoming phone call.
-2- J-A15039-14
Trial Court Opinion, pp. 3-41.
compel. On August 15, 2013, the court ordered the Hospital to produce the
above list of documents. The Hospital filed a timely appeal from the portions
the portions of the order that permitted the Hospital to withhold several
documents from production.
The Hospital has the right to take an interlocutory appeal of this
discovery order pursuant to the collateral order doctrine embodied in
Pa.R.A.P. 313. Gillard v. AIG Ins. Co., 15 A.3d 44, 56 (Pa.2011)
(collateral order doctrine permits appeal from discovery order requiring
disclosure over assertion of privilege). Our standard of review over appeals
from orders interpreting the PRPA is plenary. Dodson v. DeLeo, 872 A.2d
1237, 1241 (Pa.Super.2005).
The lone issue on appeal is whether PRPA shields from production the
documents that the trial court ordered the Hospital to produce.
quality of care, reduce mortality and keep healthcare costs within reasonable
____________________________________________
1 To eliminate confusion, we do not list the documents that the court found were not subject to production.
-3- J-A15039-14
bounds. Trial Court Opinion, p. 6. To achieve these goals, there must be
honest and sometimes critical internal review of medical providers by their
peers. Id. The PRPA deems many internal review documents privileged to
facilitate accurate and comprehensive internal evaluations of medical
providers.
The trial court observed, however, that the PRPA has two important
limitations. The first limitation is that
review committee
committee engaged in peer review, including...gather[ing] and review[ing]
any hospital board, committee or individual reviewing the
professional qualifications or activities of its medical staff or applicants for
admission thereto Id. Peer review, in turn, is defined in pertinent part as
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,... 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.
63 P.S
under 63 P.S. § 425.4, which provides:
-4- J-A15039-14
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 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.
Id. (emphasis added). Under this limitation, a hospital may not shield a
document from production merely by giving it to a peer review committee.
A document not derived from nor part of an evaluation or review by a peer
review committee is not privileged. Dodson, supra, 872 A.2d at 1244.
Read together, the trial court reasoned, the two limitations provide
Court Opinion, p. 8.
The trial court held that the documents that it ordered the Hospital to
produce do not relate to peer review. Instead, the court said, the Hospital
simply labeled them privileged without good reason:
Peer review necessarily involves evaluating the quality of care provided by medical professionals or evaluating the qualifications of medical care providers. Except for those portions that we held could be redacted, the documents/communications at issue were not used or made for the determination of staff privileges or for credentialing
-5- J-A15039-14
purposes. These documents/communications were not used exclusively for quality assurance purposes by the Stroke Committee and are not incorporated exclusively within a physician's credentialing file. See Dodson, supra. Furthermore, Doylestown Hospital cannot point to a definitive action initiating the peer review process prior to the time these documents were created. See Mazzucca [v. Methodist Hospital], 47 D. & C. 3d [55,] 60 [(Phila. Cty. 1985)]. Quite simply, the emails, agenda and minutes we ordered discoverable are non-peer review business records and communications that are neither used, nor generated by the Stroke Committee for peer review purposes.
Id., pp. 8-
procedures for the operations of its stroke program or monitoring changes
with the Joint Commission's standards [does not] constitute[] a peer review
process. . . especially if those procedures relate to discussing the Joint
Id., pp. 9,
11.
The court continued:
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J-A15039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM KATES AND BEVERLY KATES, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellees
v.
DOYLESTOWN HOSPITAL, ET AL.,
Appellant No. 2718 EDA 2013
Appeal from the Order Entered August 15, 2013 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2011-02516
BEFORE: PANELLA, LAZARUS AND JENKINS, JJ.
MEMORANDUM BY JENKINS, J. FILED AUGUST 22, 2014
August 15, 2013 directing the Hospital to provide various records to
eges
that the documents are privileged under the Peer Review Protection Act
affirm.
The Kates allege in this action that various medical defendants,
including the Hospital, failed to
During discovery, the Kates demanded that the Hospital produce documents
Benner, reviewed in preparation for her
ee,
1 J-A15039-14
compliance with accreditation by the Joint Commission on Accreditation of
On April 11, 2013, the Kates filed a motion to compel the Hospital to
produce the documents in dispute. In response, the Hospital submitted the
following documents under seal to the court for in camera review:
spital personnel had completed the American Stroke Association's NI1-1 Stroke Scale program.
made to the night hawk program (which deals with off hours x-ray review).
nda of the Critical Care Quality Sub- Committee of the Patient Safety Committee.
Stroke Committee's Minutes, which deal with the procedures to be used for the operation of the stroke program.
-mail chains between Stroke Committee members concerning practices and procedures the hospital will use in the operation of its stroke program.
deals with stroke and disabled patients at the hospital.
-mail chains between Stroke Committee members and a Jefferson University administrator exchanging the transfer agreement (which cannot be seen) between the two hospitals.
Documents 24-26 are email chains regarding the procedures used
requests by one doctor to another asking for their input on the treatment of a patient).
etting forth the topics (procedures and practices) the Stroke Committee will need to be prepared to discuss in an upcoming phone call.
-2- J-A15039-14
Trial Court Opinion, pp. 3-41.
compel. On August 15, 2013, the court ordered the Hospital to produce the
above list of documents. The Hospital filed a timely appeal from the portions
the portions of the order that permitted the Hospital to withhold several
documents from production.
The Hospital has the right to take an interlocutory appeal of this
discovery order pursuant to the collateral order doctrine embodied in
Pa.R.A.P. 313. Gillard v. AIG Ins. Co., 15 A.3d 44, 56 (Pa.2011)
(collateral order doctrine permits appeal from discovery order requiring
disclosure over assertion of privilege). Our standard of review over appeals
from orders interpreting the PRPA is plenary. Dodson v. DeLeo, 872 A.2d
1237, 1241 (Pa.Super.2005).
The lone issue on appeal is whether PRPA shields from production the
documents that the trial court ordered the Hospital to produce.
quality of care, reduce mortality and keep healthcare costs within reasonable
____________________________________________
1 To eliminate confusion, we do not list the documents that the court found were not subject to production.
-3- J-A15039-14
bounds. Trial Court Opinion, p. 6. To achieve these goals, there must be
honest and sometimes critical internal review of medical providers by their
peers. Id. The PRPA deems many internal review documents privileged to
facilitate accurate and comprehensive internal evaluations of medical
providers.
The trial court observed, however, that the PRPA has two important
limitations. The first limitation is that
review committee
committee engaged in peer review, including...gather[ing] and review[ing]
any hospital board, committee or individual reviewing the
professional qualifications or activities of its medical staff or applicants for
admission thereto Id. Peer review, in turn, is defined in pertinent part as
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,... 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.
63 P.S
under 63 P.S. § 425.4, which provides:
-4- J-A15039-14
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 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.
Id. (emphasis added). Under this limitation, a hospital may not shield a
document from production merely by giving it to a peer review committee.
A document not derived from nor part of an evaluation or review by a peer
review committee is not privileged. Dodson, supra, 872 A.2d at 1244.
Read together, the trial court reasoned, the two limitations provide
Court Opinion, p. 8.
The trial court held that the documents that it ordered the Hospital to
produce do not relate to peer review. Instead, the court said, the Hospital
simply labeled them privileged without good reason:
Peer review necessarily involves evaluating the quality of care provided by medical professionals or evaluating the qualifications of medical care providers. Except for those portions that we held could be redacted, the documents/communications at issue were not used or made for the determination of staff privileges or for credentialing
-5- J-A15039-14
purposes. These documents/communications were not used exclusively for quality assurance purposes by the Stroke Committee and are not incorporated exclusively within a physician's credentialing file. See Dodson, supra. Furthermore, Doylestown Hospital cannot point to a definitive action initiating the peer review process prior to the time these documents were created. See Mazzucca [v. Methodist Hospital], 47 D. & C. 3d [55,] 60 [(Phila. Cty. 1985)]. Quite simply, the emails, agenda and minutes we ordered discoverable are non-peer review business records and communications that are neither used, nor generated by the Stroke Committee for peer review purposes.
Id., pp. 8-
procedures for the operations of its stroke program or monitoring changes
with the Joint Commission's standards [does not] constitute[] a peer review
process. . . especially if those procedures relate to discussing the Joint
Id., pp. 9,
11.
The court continued:
[T]he Kates' Motion for Production of Documents does not request any reports, documents or recommendations produced by the Joint Commission or exchanged between the Joint Commission and Doylestown Hospital: (1) The Motion requests minutes of the Stroke Committee in 2009 (2) The motion requests documents reviewed by Benner prior to the deposition, and (3) The Motion requests emails between Benner and the Stroke Committee. Furthermore, our Order explicitly exempts any documents, communications or evaluations produced by the Joint Commission or exchanged between the Joint Commission and Doylestown Hospital.
-6- J-A15039-14
Id., p. 10.
The court concluded:
peer review procedures may overlap with the Stroke rate or related peer review procedures. For instance, our in camera review of the disputed documents helped us identify and protect from discovery certain portions of the Stroke Committee minutes that involved actual peer review. Document 8, item 2.a, and Document 10, item 2, both are minutes that detail the Stroke Committee's report and discussions on problems regarding the efficiency and quality of care provided by medical personnel. We allowed those portions to be redacted. We are reluctant, however, to extend this same exemption to other information relating to the Stroke Committee's function of setting up the Stroke Program's policies and procedures[,] especially if those procedures relate to discussing the Joint Commission's publically published standards of accreditation.
[The] Hospital would like the PRPA's confidentiality provision to extend to all communications of the Stroke Committee as well as every document derived by the Stroke Committee. Permitting such a broad request would be a clear misuse of the PRPA's confidentiality provision because it would allow hospitals to insulate their policy making decisions under the guise of peer review. It is beyond the PRPA's plain meaning.
Therefore, [the] Hospital did not meet its burden of establishing t confidentiality provision extends to the documents and communications our order requires it to disclose.
Id., p. 11.
-7- J-A15039-14
We have carefully reviewed the record, the briefs of both parties, and
the documents that are the subject of this appeal. We agree with Judge
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/22/2014
-8- Circulated 08/12/2014 02:31 PM Circulated 08/12/2014 02:31 PM Circulated 08/12/2014 02:31 PM Circulated 08/12/2014 02:31 PM Circulated 08/12/2014 02:31 PM Circulated 08/12/2014 02:31 PM Circulated 08/12/2014 02:31 PM Circulated 08/12/2014 02:31 PM Circulated 08/12/2014 02:31 PM