Venosh v. Henzes

31 Pa. D. & C.5th 411
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJuly 17, 2013
DocketNo. 11 CV 3058
StatusPublished
Cited by5 cases

This text of 31 Pa. D. & C.5th 411 (Venosh v. Henzes) 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
Venosh v. Henzes, 31 Pa. D. & C.5th 411 (Pa. Super. Ct. 2013).

Opinion

NEALON, J,

— The defendant hospital in this malpractice action has appealed the special trial master’s discovery order directing it to produce two incident or “event” reports pertaining to plaintiff’s medical treatment which serves as the basis for this suit. The hospital contends that the event reports are privileged and protected from discovery by Section 4 of the Peer Review Protection Act (“PRPA”), 63 P.S. § 425.4, Section 311 of the Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. § 1303.311, and Section 299b-22 of the federal Patient Safety Quality Improvement Act [413]*413of 2005 (“PSQIA”), 42 U.S.C. § 299b-22.

The hospital’s “Event Reporting” policy that was in effect at the time that the two event reports were prepared, and the language of the hospital’s “Event Report” form that was utilized, do not indicate that those reports were generated by or for a peer review committee as part of a quality assurance assessment, and as such, they do not qualify for peer review protection under the PRPA. Similarly, since the available record does not reflect that the event reports “arise out of matters reviewed by” the hospital’s patient safety committee or governing board pursuant to its statutory responsibility to review, evaluate and report “serious events and incidents,” they are not immune from discovery under the patient safety provisions of the MCARE Act. Finally, the two event reports do not constitute “patient safety work product” subject to a “federal medical peer review privilege” under the PSQIA in that there is no indication in the record that the reports were provided to a duly certified patient safety organization or a comparable patient safety committee. Consequently, the event reports are discoverable and the hospital’s discovery appeal will be denied.

I. FACTUAL BACKGROUND

Plaintiff, Ann Marie Venosh (“Venosh”), has instituted this medical negligence suit against her orthopedic surgeon, Jack Henzes, M.D. (“Dr. Henzes”), his surgical assistant, Cindy S. Anderson, PA-C, and his orthopedic group, Scranton Orthopedic Specialists, P.C., as well as Moses Taylor Hospital (“Moses Taylor”), based upon a left total knee replacement surgeiy that Dr. Henzes performed on Venosh at Moses Taylor on June 11, 2009. (Docket [414]*414entry no. 47 at ¶¶ 1-3; docket entry no. 48 at ¶¶ 1-3). Venosh contends that Dr. Henzes negligently injured her arteries and nerves during the surgery, as a result of which “a vascular surgeon was summoned to repair the arterial injury.” (Docket entry no. 1 at ¶¶ 12-13). Venosh further alleges that she continued to exhibit “signs and symptoms of vascular and neurologic injury” post-operatively, but that Dr. Henzes and Moses Taylor personnel “negligently delayed in recognizing” those symptoms and caused her to develop “occlusion of the left popliteal artery.” (Id. at ¶¶ 14-15). Venosh was reportedly “returned to the operating room where a vascular surgeon performed exploration of the left popliteal artery with repair of intimal flap and patch angioplasty,” and she allegedly continues “to suffer left foot drop, peroneal neuropathy, claudication, sensory and motor nerve dysfunction” and other damage to her left leg. (Id. at ¶¶ 16-17).

During the course of discovery, Venosh served a request upon Moses Taylor for the production of any “incident or event” reports “which in any way reference facts surrounding the medical care of [Venosh].” (Docket entry nos. 47,48 at ¶ 4). Although Moses Taylor acknowledged the existence of two “event” reports “relative to Ms. Venosh’s admission of June 11, 2009,” (Id. at ¶ 6), it objected to Venosh’s discovery request “to the extent that it seeks information that may be protected from discovery by Pennsylvania’s Peer Review Protection Act, 63 P.S. § 425.1.” (Docket entry no. 48, exhibit B at ¶ 21).

On March 25, 2013, Venosh presented a discovery motion to the special trial master pursuant to Lacka. Co. R.C.P. 4000.1(a), and on that date, the master issued an order granting the motion and directing Moses Taylor to [415]*415produce the event reports within twenty days. (Docket entry no. 42). On April 3,2013, Moses Taylor filed a timely de novo appeal of that order in accordance with Lacka. Co. R.C.P. 4000.1(b). (Docket entry no. 47). Moses Taylor contends that the events reports “in question are immune from discovery pursuant to 40 P.S. § 1303.311(a) and 42 U.S.C. § 299b-22 as they were prepared exclusively and solely for the use of Moses Taylor’s Patient Safety Improvement and Management Committee and. are not provided or shared with any other entity, person, or state agency.” (Id. at ¶ 11).

At the time of Venosh’s surgery, Moses Taylor had an “Event Reporting” policy, “Operating Policy 50-85-1,” in effect which had a stated purpose of prescribing “the standard procedure for the reporting of any unusual occurrence or event which takes place at Moses Taylor Hospital.” (Docket entry no. 48, exhibit J at p. 1). As per its express language, Operating Policy 50-85-1 was designed “to: (1) improve the management of patient care and treatment...and to assure the prevention of recurrences; (2) provide a data base for the facility so that trends can be identified..,; (3) provide a record of the occurrence for legal purposes; and (4) comply with the requirements of state and/or federal laws and regulations.” (Id.). Under the “Event Reporting” protocol established by that policy, the “initial investigation” of the event “should be conducted by the Department Head/Supervisor/ Manager as soon as possible,” although that person will “not necessarily prepare the report.” (Id. at pp. 2-3). “The Investigative Analyst will follow up with the Department Head/Supervisor/Manager as to the cause of the event and measures taken to prevent recurrence when indicated.” [416]*416(Id.). All event reports must “be reviewed and analyzed by the Investigative Analyst for any developing trends,” and those results are to be “reviewed by the Patient Safety Improvement and Management Committee.” (Id. at p. 3).

Operating Policy 50-85-1 contains specific reporting requirements for “Patient Events,” which require (a) the patient’s physician to be promptly notified, (b) “the patient examined as soon as possible,” and (c) the examining physician’s “findings or comments” to be documented in the “the patient’s medical record.” (Id. at p. 2). The event “report should be sent to the Investigative Analyst within twenty-four (24) hours of completion,” but “[njo report should be maintained on the patient’s chart.'”' (Id.) (emphasis in original). Furthermore, “[i]f the Investigative Analyst determines that the event falls within the scope of Pennsylvania’s Act 13, the appropriate information will be forwarded to the Patient Safety Officer.”1 (Id.).

In the event that the investigative analyst “determines that a particular event requires more specific documented follow-up, the Department Head/Manager/Supervisor will be asked to complete an ‘Event Report Investigation and Follow-up’ (Form 1654, attached) within five (5) days.” (Id. at p. 3).

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Bluebook (online)
31 Pa. D. & C.5th 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/venosh-v-henzes-pactcompllackaw-2013.