Martin v. McAndrew

45 Pa. D. & C.4th 129, 2000 Pa. Dist. & Cnty. Dec. LEXIS 318
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedFebruary 2, 2000
Docketnos. 93 CV 1917 and 93 CV 2418
StatusPublished

This text of 45 Pa. D. & C.4th 129 (Martin v. McAndrew) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. McAndrew, 45 Pa. D. & C.4th 129, 2000 Pa. Dist. & Cnty. Dec. LEXIS 318 (Pa. Super. Ct. 2000).

Opinion

MINORA, J.,

FACTUAL BACKGROUND

Presently before the court is a medical malpractice claim wherein the plaintiffs are seeking discovery of information regarding defendant Dr. Larkin from two non-party hospitals, deponents Community Medical Center, Lackawanna County, Pennsylvania and Moses Taylor Hospital also of Scranton.

Plaintiff, Warren Martin, had been a patient of Dr. Patrick McAndrew since October 8, 1976. Dr. McAndrew saw him periodically throughout the time period for complaints of dizziness, which increased toward April of 1991. The plaintiff, Warren Martin, had a history of hypertension for several years, as well as hypercholesterolemia. In addition, the Martin family history is strongly positive for vascular disease. The plaintiff also had symptoms that were compatible with, and indicative of, carotid artery stenosis, which Dr. McAndrew allegedly failed to investigate. Notwithstanding his complaints, Dr. McAndrew continued to see the plaintiff, but left him untreated.

In April of 1991, it was discovered that the plaintiff had a complete occlusion of the right internal carotid artery and 90 percent occlusion of the left carotid artery. On May 6,1991, the plaintiff underwent elective carotid endarterectomy of the left internal carotid artery by Dr. Vincent Larkin at St. Joseph’s Hospital.

[131]*131Dr. Larkin is alleged to have negligently performed the plaintiff’s surgery and incorrectly ordered medication. Shortly after the surgery ended and the plaintiff was transferred to the ICU, his neurological status began to deteriorate and he was returned to surgery for a second time. An exploratory thrombectomy of the left carotid artery was performed, which revealed a blood clot. During this procedure, Dr. Larkin used a shunt and had the effectiveness of the heparin doses monitored by repeated PTTs and performed an interoperative angiogram. As a result, the plaintiff suffered a stroke and severe brain damage, which has left the right side of his body paralyzed and without feeling. Additionally, he suffers from severe cognitive difficulties.

Plaintiff, Warren Martin, brought a cause of action for his injuries and plaintiff, Charlotte Martin, brought a claim for the loss of her husband’s society, companionship and consortium that resulted from the alleged negligence committed by the defendants in this action.

Plaintiffs and Community Medical Center have engaged in a constructive dialogue and amicably resolved a number of discovery requests, while Moses Taylor Hospital has not been nearly so constructive in their approach to the outstanding discovery requests. Therefore, it becomes this court’s responsibility to review in camera the disputed documents and then to apply the governing legal principles to those documents in order to determine their discoverability.

LEGAL DISCUSSION

The “Peer Review Protection Act,” 63 P.S. §425.1 et seq., specifically 63 P.S. §425.4, has spawned a great deal of litigation which attempts to flesh out its parameters and define its extent and limitations.

[132]*132Two appellate cases have spoken to these issues. The most recent of the appellate cases, Young v. Western Pennsylvania Hospital, 722 A.2d 153 (Pa. Super. 1998), deals with “original” documents discoverable under the Peer Review Protection Act. The next case, McClellan v. Health Maintenance Organization of Pennsylvania, 546 Pa. 463, 686 A.2d 801 (1996), is a Supreme Court case wherein an evenly divided court ultimately affirmed the Superior Court, due to its inability to achieve a majority opinion. Both of the appellate cases, coupled with significant common pleas opinions, gave this court great guidance in deciding which of these in camera records submissions should be protected by peer review and which should not be afforded the protection.

Further, the Court of Common Pleas of Lycoming County has also addressed the interplay between Discovery Rule 4009.12(b)(2) of the Pennsylvania Rules of Civil Procedure and the Peer Review Protection Act, 63 P.S. §425.4. In the case of Wein v. Williamsport Hospital, 20 Lycoming Rep. 418 (1998), the court ruled that Rule 4009.12(b)(2) does not conflict with 63 P.S. §425.4, the Peer Review Protection Act, when the rule requires a party withholding documents to identify them with particularity and explain why they are not discoverable, while the Act merely prohibits disclosures of procedures and records of the review committee itself. The court concluded that an in camera review is a device available to resolve legitimate disputes regarding whether discovery should be compelled.

In the case of Johnson v. Tray, 43 D.&C.4th 129 (Fulton Cty. 1999), the court decided that a plaintiff may discover information that was presented to a peer review committee if such information is available from other sources. The rationale for the court’s decision was clear. [133]*133“If it were enough that this information was discussed at peer review, any type of information or statistical data, regardless of its significance, relevance or necessity could not be considered discoverable if merely mentioned or discussed in the setting of a peer review meeting.”

The rationale as articulated is clear. Any type of data or information, no matter how probative or relevant, could be rendered beyond all legitimate discovery as opposed to admissibility, merely by bringing it up in the context of a peer review meeting. This type of sanitation and/or insulation of relevant, material, probative data or data that could lead to discoverable data simply could not have been contemplated by the Peer Review Protection Act, 63 P.S. §425.4, especially when viewed in conjunction with Pa.R.C.P. 4009.12(b)(2).

Therefore, if such information is traditionally available from other sources outside of peer review, then such information should remain discoverable despite its presentation to peer review.

In accord with the view of Judge Walker as expressed in Johnson v. Tray, supra, are two common pleas cases, one from Pittsburgh and one from Philadelphia. In Philadelphia, in the case of Pitts v. The Children’s Hospital of Philadelphia (C.P. Philadelphia, July 7, 1999) Bernstein, J., the judge ordered St. Luke’s Hospital, a non-party hospital, to produce applications for staff privileges of Dr. Theodore Mahoske. This is highly analogous to our case wherein discovery is being sought from non-party hospitals.

In Pitts, the hospital refused to divulge the documents, claiming a privilege under the Peer Review Protection Act, supra. The court rejected this argument, noting that the Peer Review Protection Act specifically does not extend its privilege to materials otherwise available from [134]*134other sources merely because they were presented in committee. This is consistent with Johnson v. Tray, supra; however, the Pitts opinion goes on to state that any performance evaluations prepared solely for the purposes of peer review were protected and not discoverable so long as they were used only for peer review purposes.

Credential applications or applications for staff privileges were discoverable for essentially three reasons.

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Related

Young v. Western Pennsylvania Hospital
722 A.2d 153 (Superior Court of Pennsylvania, 1998)
McClellan v. Health Maintenace Organization
686 A.2d 801 (Supreme Court of Pennsylvania, 1996)
Atkins v. Pottstown Memorial Medical Center
634 A.2d 258 (Superior Court of Pennsylvania, 1993)

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Bluebook (online)
45 Pa. D. & C.4th 129, 2000 Pa. Dist. & Cnty. Dec. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-mcandrew-pactcompllackaw-2000.