Sanders, C. v. The Children's Hosp.

2022 Pa. Super. 199

• Court: Superior Court of Pennsylvania
• Decided: November 22, 2022
• Docket: 646 EDA 2021
• Status: Published

Opinion

J-A11003-22

2022 PA Super 199

CHRISTIANA SANDERS AND BRYAN : IN THE SUPERIOR COURT OF SANDERS, AS CO-ADMINISTRATORS : PENNSYLVANIA OF THE ESTATE OF M.S., AND : CHRISTIANA SANDERS AND BRYAN : SANDERS, IN THEIR OWN RIGHT : : : v. : : No. 646 EDA 2021 : THE CHILDREN'S HOSPITAL OF : PHILADELPHIA : : Appellant :

Appeal from the Order Entered March 12, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 171204286

SHEILA LIMPREVIL, AS CO- : IN THE SUPERIOR COURT OF ADMINISTRATOR OF THE ESTATE : PENNSYLVANIA OF L.G.W., AND SHEILA LIMPREVIL, : IN HER OWN RIGHT AND TERRELL : WILLIAMS, AS CO-ADMINISTRATOR : OF THE ESTATE OF L.G.W., AND : TERRELL WILLIAMS, IN HIS OWN : RIGHT : : No. 648 EDA 2021 : v. : : : THE CHILDREN'S HOSPITAL OF : PHILADELPHIA : : Appellant :

Appeal from the Order Entered March 12, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 180802309

COURTNEY GILL, AS : IN THE SUPERIOR COURT OF ADMINISTRATRIX OF THE ESTATE : PENNSYLVANIA OF T.C.G., AND COURTNEY GILL AND : : J-A11003-22

TERRENCE GILL, IN THEIR OWN : RIGHT : : : v. : No. 659 EDA 2021 : : THE CHILDREN'S HOSPITAL OF : PHILADELPHIA : : Appellant

Appeal from the Order Entered March 12, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 180900385

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

CONCURRING/DISSENTING OPINION BY McLAUGHLIN, J.:

FILED NOVEMBER 22, 2022

I agree with the majority that the Children’s Hospital of Philadelphia

(“CHOP”) did not establish the intranet postings and the redacted

ophthalmology emails were privileged. However, I respectfully disagree with

the majority’s conclusion that the remaining documents are protected by the

Medical Care Availability and Reduction of Error Act (“MCARE”), 40 P.S. §§

1303.101-1303.910, or the Peer Review Protection Act (“PRPA”), 63 P.S. §§

425.1-425.4.

The majority accurately sets forth the facts of this case. In the late

summer of 2016, 23 infants contracted an adenovirus in CHOP’s neonatal

intensive care unit (“NICU”). CHOP’s Infections Prevention & Control (“IP&C”)

Department investigated the outbreak. CHOP claimed myriad documents

prepared in response to the outbreak were protected by either the PRPA or

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MCARE. The trial court disagreed, finding certain documents, including a root

cause analysis report, various powers point slides, meeting minutes, intranet

postings, and an email, were not protected from disclosure by either statute.

CHOP filed this appeal, again claiming the documents were protected from

disclosure.

The party asserting an evidentiary privilege has the initial burden to “set

forth facts showing that the privilege has been properly invoked.” Virnelson

v. Johnson Matthey, Inc., 253 A.3d 707, 713 (Pa.Super. 2021) (citation

omitted). If this initial burden is met, the party seeking disclosure then “must

set forth facts showing that disclosure will not violate the privilege.” Id.

Evidentiary privileges are disfavored, and should be applied “only to the very

limited extent that . . . excluding relevant evidence has a public good

transcending the normally predominant principle of utilizing all rational means

for ascertaining the truth.” BouSamra v. Excela Health, 210 A.3d 967, 975

(Pa. 2019) (citation omitted) (alteration in original).

The PRPA provides for the confidentiality of a review organization’s

records where the document arises out of matters that are the subject of

evaluation and review by the committee:

The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee[.]

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63 P.S. § 425.4. The provision further provides that documents available from

original sources are not protected merely because they are presented during

committee proceedings:

Provided, however, [t]hat information, documents or records otherwise available from original sources are not to be construed as immune from discovery or used in any such civil action merely because they were presented during proceedings of such committee[.]

Id.

The PRPA defines “peer review” as

[T]he procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, 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. § 425.2. A “professional health care provider” is defined as “individuals

or organizations who are approved, licensed or otherwise regulated to practice

or operate in the health care field under the laws of the Commonwealth[.]”

The PRPA defines “Review Organization” as follows:

[A]ny committee engaging in peer review . . . to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. . . .

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MCARE also protects certain documents from discovery. It protects from

disclosure documents prepared or created solely for the purpose of compliance

with certain MCARE provisions, where the documents arise out of matters

reviewed by the patient safety committee:

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.

40 P.S. § 1303.311(a) (footnote omitted). Similar to the PRPA, MCARE does

not protect a document from disclosure if the document would be available

from an original source:

Any documents, materials, records or information that would otherwise be available from original sources shall not be construed as immune from discovery or use in any civil or administrative action or proceeding merely because they were presented to the patient safety committee or governing board of a medical facility.

The MCARE patient safety committee is to be composed of “the medical

facility’s patient safety officer and at least three health care workers of the

medical facility and two residents of the community served by the medical

facility who are not agents, employees or contractors of the medical facility.”

40 P.S. § 1303.310(a)(1). The statute states that the committee’s

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responsibilities include receiving reports, evaluating the investigations and

actions of the patient safety officer, reviewing and evaluating the quality of

the facility’s patient safety measures, making recommendations to eliminate

future serious events, and reporting to the administrative officer and

governing body:

(b) Responsibilities.--A patient safety committee of a medical facility shall do all of the following:

(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 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. at § 1303.310(b) (footnotes omitted).

Root Cause Analysis Report

The Affidavit of Julia Sammons, M.D., M.S.C.E. states that “CHOP

conducted a formal root cause analysis related to the adenovirus outbreak

that occurred in CHOP’s NICU in August-September 2016.” Aff. of Julia

Sammons, M.D., M.S.C.E., at ¶ 69 (“Dr. Sammons’ Aff."). The Root Cause

Analysis (“RCA”) “summarized the root cause team’s information gathering,

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evaluation of the adenovirus outbreak, and included an action plan to prevent

recurrence.” Id. at ¶ 73. In her affidavit, Dr. Sammons stated that the “root

cause analysis was initiated at the direction of the Patient Safety Committee

through the Patient Safety Officer” and was submitted to the Patient Safety

Committee in November 2016. Id. at ¶¶ 70, 76. Similarly, in his affidavit, Jan

Boswinkel, M.D., stated that CHOP conducted a root cause analysis “at the

direction of the Patient Safety Committee,” the RCA “accomplished

responsibilities of the Patient Safety Committee,” and it was presented during

the November 2016 meeting. Aff. of Jan Boswinkel, M.D., at ¶¶ 29, 32, 35.

The trial court found CHOP failed to meet its burden of proving the RCA

is protected from disclosure by either the PRPA or MCARE. The court explained

that CHOP did not provide sufficient information to establish the report was

created specifically for the hospital’s event reporting system or peer review

committee meeting, noting CHOP did not include information as to who

prepared the report or when it was prepared. Trial Court Opinion, filed July

19, 2021, at 8. It found the document was “not created for purposes of peer

review but instead . . . to address and stop the outbreak.” Id. at 9.

The majority found that although the RCA was not protected from

disclosure by the PRPA, MCARE did protect it. It found CHOP met its burden

of establishing the RCA was solely prepared for compliance with MCARE, arose

out of matters that were reviewed by the patient safety committee, and not

otherwise available from other sources. Majority at 20. I disagree. I would

conclude, as the trial court did, that CHOP did not meet its burden.

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Although Dr. Sammons and Dr. Boswinkel both state the Patient Safety

Committee directed the preparation of the RCA and that the RCA was

presented at the November 2016 meeting, neither provides details regarding

when the request for the RCA was made, when RCA report was prepared, or

who constituted the members of the root cause analysis team that prepared

the report. I cannot agree that, by merely stating the Patient Safety

Committee requested an RCA, CHOP established the RCA was created solely

for compliance with MCARE. Rather, it had a dual purpose. I would agree with

the trial court that the RCA was created, at least in part, in response to the

Adenovirus outbreak. Because it was not solely created for the Patient Safety

Committee, it is not protected by MCARE. See 40 P.S. § 1303.311(a). I would

therefore conclude the trial court did not err.

PowerPoint Slides and Meeting Minutes

Dr. Sammons prepared and presented PowerPoint Slides at various

meetings. The majority finds the PowerPoint Slides protected under MCARE or

the PRPA. The majority also found the minutes from an IP&C meeting

privileged. I disagree.

1. “Safety Huddle” PowerPoint Slides

Dr. Sammons presented PowerPoint Slides at “safety huddles” during

August and September 2016. At her deposition, Dr. Sammons testified she

led an investigation into the adenovirus outbreak in the NICU. N.T., Oct. 6,

2020, at 21. Her role was “to lead outbreak investigations and to communicate

the findings.” Id. at 21-22. She testified that one of the “primary activities”

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in the “outbreak investigation” was “to communicate with the unit.” Id. at

210. They therefore had “daily huddles and briefings . . . to ensure everyone

knew where [her team was] in [the] investigation.” Id. She testified that there

were PowerPoint slides “prepared for communication to the NICU,” and the

slides “included general information around the cases and the case findings to

date.” Id. at 220. During the first week, the slides were updated daily. Id. at

221. The people attending the huddles differed, but “typically . . . include[d]

representation from [IP&C], from the NICU, NICU leadership,” risk managers,

and possibly local safety quality specialists. Id. at 221.

The majority found the Safety Huddle PowerPoint slides protected from

disclosure by MCARE. Majority at 24-25. I disagree and would find the slides

are not protected under MCARE.

As with the RCA, CHOP failed to show the Safety Huddle PowerPoint

slides were created solely for use by the Patient Safety Committee. Rather,

Dr. Sammons’ deposition testimony establishes the PowerPoint Slides were

prepared during the effort to investigate and respond to the outbreak, not

solely for the Committee. N.T., Oct. 6, 2020, at 21, 210, 220; Trial Ct. Op. at

8-9; see 40 P.S. § 1303.311(a). MCARE therefore does not prevent disclosure.

I also would find the PowerPoint slides not protected under the PRPA, 1

as CHOP did not establish the slides were created for peer review. As stated

____________________________________________

1 CHOP argues the Safety Huddle PowerPoint slides were protected under both statutes. CHOP’s Br. at 39 n.25.

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above, they were to investigate the outbreak and provide information

regarding the investigation.

2. PowerPoint Slides from the Patient Safety Committee Meeting on September 22 ,2016

On September 22, 2016, Dr. Sammons and other individuals, “on behalf

of the IP&C Committee and IP&C Department,” reported to the Patient Safety

Committee “regarding the adenovirus outbreak,” and prepared a PowerPoint

presentation for review by the Committee. Dr. Sammons’ Aff., at ¶¶ 34-35.

Dr. Sammons stated they “provided information to the Patient Safety

Committee regarding the adenovirus outbreak investigation and discussed

findings and next steps for purposes of promoting patient safety.” Id. at ¶ 37.

The majority concludes the PowerPoint slides from the Patient Safety

Committee meeting on September 22, 2016, are protected by MCARE.2

Majority at 25. It finds the slides were prepared pursuant to Section 310(b)

and 311, and therefore protected. I once again disagree.

I would conclude, as the trial court did, that CHOP did not establish the

slides were protected. Dr. Sammons reported to the Patient Safety Committee

as the hospital epidemiologist, on behalf of the IP&C committee, to advise on

developments from the outbreak and next steps. She explained that the slides

2 CHOP does not argue the PowerPoint slides from the Patient Safety Committee Meeting are protected by PRPA. CHOP’s Br. at 39 n.25.

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described the outbreak and explained the hospitals steps to control it. 3 Id.

This was part of a response to the outbreak, and therefore the slides were not

created solely to further a task under Section 310(b).

3. M&M Conferences held at CHOP and at Penn’s Scheie Eye Institute Ground Rounds Conference

CHOP held Morbidity and Mortality (“M&M”) conferences related to the

adenovirus outbreak. These included a CHOP Safety M&M meeting, a CHOP

NICU M&M meeting, a CHOP Ophthalmology M&M meeting, a CHOP

Ophthalmology Residents M&M meeting, and a CHOP Surgical Division Chiefs

M&M meeting. Id. at ¶ 38. The CHOP Safety M&M conference was a sub-

committee of the Patient Safety Committee. Id. at ¶ 40.4 Dr. Sammons also

gave a presentation to ophthalmologists at an M&M Ground Rounds at Penn

Medicine’s Scheie Eye Institute, where she was a faculty member. Id. at ¶¶

77, 79. On her curriculum vitae, Dr. Sammons has the M&M conferences listed

under “Major Academic and Clinical Teaching Responsibilities.” CHOP’s Resp.

3 I also note here that the trial court reviewed the documents in camera and found the documents did not contain privileged information.

4 Dr. Sammons stated that the NICU M&M conference attendees “consisted exclusively of professional health care providers, including NICU physicians and NICU nurses.” Dr. Sammons’ Aff., at ¶ 49. Similarly, the attendees at the Ophthalmology M&M conference “consisted exclusively of professional health care providers from CHOP’s Division of Ophthalmology” and the attendees at the Ophthalmology Residents M&M consisted “exclusively of ophthalmology residents who provide care to patients at CHOP.” Id. at ¶ 54, 60. In addition, the attendees at the Surgical Division Chiefs M&M “consisted exclusively of CHOP surgical division chiefs.” Id. at ¶ 66.

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in Opp’n to Pls.’ Mot. to Strike CHOP’s Privilege Objections to Pls.’ Disc. Req.

at Ex. A.

The majority concludes the PowerPoint slides presented at the Safety

M&M conference was protected under MCARE. Majority at 25. I disagree,

because, as with the other documents, there is no evidence the slides were

created solely for compliance with MCARE.

The majority finds the slides presented to at the remaining M&M

conferences are protected under the PRPA, because the conferences were

attended solely by professional health care providers and the slides were

intended for the purposes of conducting peer review and improving the quality

of health care. Majority at 26-27.

I disagree, and would find the trial court did not err in finding CHOP did

not establish the slides were protected under the PRPA. CHOP failed to prove

the lectures were organized to evaluate the quality of healthcare provided,

reduce morbidity or mortality, or establish and enforce guidelines, as required

by the PRPA. See 63 P.S. §§ 425.2, 425.4. Rather, as indicated by Dr.

Sammons’s curriculum vitae the lectures were educational and training

opportunities. Further, the trial court, who viewed the slides during in camera

review, found the material in the slides had already been made public, and

therefore the information would be in otherwise available sources. Trial Ct.

Op. at 8.

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4. PowerPoint Slides and Minutes from IP&C Meetings on September 14 and October 12, 2016

In September and October 2016, Dr. Sammons and her colleagues

reported to the CHOP IP&C Committee about the outbreak. She stated the

discussion “included practice analysis and next steps to improve the quality of

health care rendered, improve procedures, and monitor compliance with IP&C

procedures.” Dr. Sammons’ Aff., at ¶ 29. She stated the IP&C committee

“evaluated the outbreak response by Infection Prevention providers and NICU

providers, evaluated ophthalmologist practices, discussed monitoring of

compliance with hospital policies and procedures, and evaluated next steps to

prevent recurrence.” Id. at ¶ 30.

The majority found the PowerPoint slides and the minutes from the IP&C

Meetings protected by MCARE. Majority at 28. It reasons that the IP&C

Committee is a peer review sub-committee of the Patient Safety Committee

and that the slides were prepared to present to the meeting and assist in

evaluating the outbreak response. Id. It found this established they were

presented in accordance with Section 310(b). Id. It therefore found the slides

protected under MCARE, without addressing whether the PRPA applied. Id. at

29.

I would conclude the PRPA cannot apply, because the IP&C Committee

was a multi-disciplinary committee and included non-physicians and lay

community. See 63 P.S. § 425.2; Ungurian v. Beyzman, 232 A.3d 786, 798

(Pa.Super. 2020) (finding PRPA requires peer review activities be conducted

by professional healthcare providers and the defendant’s failure to identify

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members of the peer review committee was fatal to claim PRPA privilege

applied); N.T., Oct. 6, 2020, at 177-79 (the IP&C Committee included

members of medical staff, non-physician infectious disease preventionists,

and representatives from the “environmental services department,” which

provides janitorial services).

Further, as with the other documents, I would conclude the slides were

created in response to the outbreak, and CHOP did not establish the slides

were created, or the meeting was held, solely to fulfill an obligation of the

Patient Safety Committee. Therefore, the slides and meeting minutes are not

protected from disclosure under MCARE.

In sum, I agree with the learned Majority that the intranet postings and

redacted email are not protected by PRPA or MCARE, but respectfully disagree

with its conclusions that the remaining documents are privileged.

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