Venosh v. Henzes

40 Pa. D. & C.5th 69
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedAugust 8, 2014
DocketNo. 11 CV 3058
StatusPublished

This text of 40 Pa. D. & C.5th 69 (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, 40 Pa. D. & C.5th 69 (Pa. Super. Ct. 2014).

Opinion

NEALON, J.,

— Plaintiff’s discovery appeal in this medical malpractice action presents an issue of first impression in Pennsylvania: whether a “quality of care” review conducted by a plaintiff’s own health insurance company concerning the medical treatment that the plaintiff received from the defendant health care providers is protected from discovery by the Peer Review Protection Act (“PRPA”), 63 P.S. §§ 425.1-425.4? Blue Cross of Northeastern Pennsylvania (“Blue Cross”) contends that its entire “quality of care” review, including its external peer review by a “same/similar specialist,” is shielded from discovery under the act since the statute’s definition of a “review organization” includes “a health [71]*71insurance review committee” and “a hospital plan corporation review committee,” and Blue Cross utilized “professional health care providers” to perform its “quality of care” review.

The language of the PRPA, and the relevant case law interpreting that statute in comparable contexts, support the conclusion that the discovery protections afforded by the act apply only to peer reviews which are initiated and completed by organizations or individuals that provide health care services, rather than those entities that sell health insurance. Since Blue Cross is neither a direct health care practitioner, nor the administrator or operator of a health care facility, its “quality of care” reviews are not immune from discovery under the PRPA. The act’s peer review provisions may be extended to health insurance companies or hospital plan corporations only by legislative amendment of that statute. As presently worded and construed by the appellate courts, the PRPA does not protect Blue Cross’s “quality of care” review from discovery, and for that reason, plaintiff’s de novo discovery appeal will be granted.

I. FACTUAL BACKGROUND

Plaintiff, Ann Marie Venosh (“Venosh”), has filed this professional liability action against an orthopedic surgeon, Jack Henzes, M.D. (“Dr. Henzes”), his surgical assistant, Cindy S. Anderson, PA-C, and orthopedic practice group, Scranton Orthopedic Specialists, P.C., and the Moses Taylor Hospital (“Moses Taylor”), alleging injuries related to a left total knee replacement surgery that Dr. Henzes performed on Venosh at Moses Taylor on June 11, 2009. [72]*72(Docket entry no. 47 at ¶¶ 1-3; docket entry no. 48 at ¶¶ 1-3). Venosh’s health insurance company at the time of her surgery and post-operative treatment was First Priority Health IPA-HMO (“First Priority”), a subsidiary of Blue Cross of Northeastern Pennsylvania (“Blue Cross”). (Docket entry no. 81 at p. 2). Blue Cross is a “hospital plan corporation” under 40 Pa. C.S. §§6101 etseq., Ambulance Association of Pennsylvania v. Highmark, Inc., 794 F. Supp. 2d 569, 575 (W.D. Pa. 2011), aff’d, 464 Fed. Appx. 64 (3d Cir. 2012), and operates a nonprofit hospital plan which provides hospitalization and related health benefits to plan subscribers for a fee. See Chow v. Rosen, 571 Pa. 369, 371 n. 1, 812 A.2d 587, 588 n. 1 (2002).

At the time of Venosh’s treatment at Moses Taylor, Blue Cross had procedures in effect governing its initiation and performance of “Quality of Care” reviews of treatment furnished to its insureds. Under its Procedure Statement 437-0077, Blue Cross institutes such a review upon its receipt of “a quality of care concern, identified as either a complaint or an adverse outcome,” which may be generated “externally” by an insured, practitioner or health care facility or “internally” by any department within Blue Cross or First Priority. (Blue Cross of NEPA Procedure Statement 437-0077, filed as docket entry no. 90, at pp. 1, 4). Blue Cross’s Quality Management Nurse Analyst (“Nurse Analyst”) is responsible for gathering the necessary information and preparing “a written detailed summary of the quality of care concern,” including “a delineation of all quality of care issues identified for the specific practitioner/facility for the last three (3) years.” (Id. at p.3).

[73]*73The Nurse Analyst’s written summary is forwarded to Blue Cross’s Medical Director “for review, staging, and recommendation,” which “may include but are not limited to: refer to peer review process (please refer to Procedure Statement 437-0098), present immediately to the Credentialing Committee for action, require the practitioner/facility to submit a plan of corrective action to prevent further issues, assign a stage, or track and trend.” Blue Cross’s quality procedures recognize the following “staging” categories:

1. QMO: No quality concern evident or potential for adverse effects
2. QM1: A quality concern, which had a potential for or caused a minor effect on the [insured]
3. QM2: A quality concern, which had the potential for a significant adverse effect on the [insured] but did not result
4. QM3: A quality concern, which resulted in a significant adverse effect on the [insured]

(Id. at p. 4). A “Track and Trend” is defined as “[a]n adverse outcome that is not fully investigated (because of, but not limited to, a lack of information or an informal complaint) [and] is placed in the track and trend process.” (Id.). Pursuant to Section IV (D)(ll) of that procedure statement, any practitioner or facility “with a trend of three (3) or more of the same/similar staged QMO’s, QM1 ’s, or Track and Trend issues will be presented to the credentialing committee for further action at the time of recredentialing,” whereas a practitioner or facility “with [74]*74one (1) QM2 or QM3 will be presented to the credentialing committee at the time of recredentialing, unless the issue is determined to be egregious by the chair of the credentialing committee,” in which event “it will then be presented at the time of occurrence.”1 {Id.).

[75]*75Blue Cross Procedure Statement 437-0098 “describes the procedure of referring a quality of care concern file to a same or similar specialist for staging and peer review consensus.” (Docket entry no. 90, Blue Cross of NEPA Procedure Statement 437-00098 at p. 1). If “the medical director has determined [that] a need for same/similar specialist review is necessary,” Blue Cross retains an “external independent third party review organization... to perform [a] peer review.” (Id). Following that review, the “external third party review organization” prepares “peer review staging and recommendations,” which are reviewed by Blue Cross’s Medical Director who “makes the final determination of the staging.” (Id).

Once Blue Cross’s “staging” decision has been entered “into the appropriate quality management tracking logs and DOL database,” the nurse analyst forwards a letter “to the practitioner/facility involved in the [quality of care] concern with the outcome of the investigation, recommendations and request for a plan of corrective action, if applicable.” (Id. at p. 2).

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Bluebook (online)
40 Pa. D. & C.5th 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/venosh-v-henzes-pactcompllackaw-2014.