2018 Hospital Privilege Update

Article by Daniel Margonari, Esq.

Once a lawsuit is brought against a hospital and the discovery process gets underway, hospitals have routinely relied on a litany of privileges to protect documents from discovery. Most notable are the often asserted protections of the Pennsylvania Peer Review Protection Act. Overall, 2018 has been an eventful year regarding the case law related to those discovery protections often asserted by hospitals in Pennsylvania. As such, this article seeks to provide a quick recap of those key changes and some thoughts moving forward.

 

Peer Review Privilege 

The most significant legal update in the peer review arena was the Pennsylvania Supreme Court’s ruling in Reginelli v. Boggs.  In short, the court examined the PPRPA’s protections as they applied to a physician’s performance review file which was maintained by the physician’s employer, an emergency medicine physician practice group.

The court refused to extend the peer review privilege to the performance review file, but in doing so, painted with a fairly broad brush.  The court maintained a strict interpretation of the peer review privilege, apparently adopting a very rigid interpretation of the statute.  Given the language of the opinion, we have already seen a push by attorneys for patients attempting to use the Reginelli case to circumvent peer review objections.

Attorney-Client and Work-Product Privileges 

In the summer of 2017, the Superior Court issued their ruling in BouSamra v. Excela Health. The case involved a lawsuit by two formerly credentialed physicians against a hospital and individual defendants. The privilege issue which was examined was whether the attorney-client and work-product privileges extended to communications between in-house counsel for the hospital and a third-party PR consulting firm hired by the hospital. Specifically, per the opinion, the communications involved opinions of the hospital’s external counsel which were forwarded by in-house counsel to the PR firm.

The Superior Court ultimately held that the hospital’s attorney waived attorney-client privilege by forwarding impressions of external counsel to a third party. The court also held that the work-product privilege did not apply, as the email was not sent by the hospital to the PR firm to help outside counsel in preparing a case for trial.

While this opinion appears to erode the ability of a hospital’s legal team to work with the hospital’s PR team, this opinion may not stand for long. As January of 2018, the Supreme Court granted allowance of appeal and arguments were heard in October. In a well-argued matter, the Supreme Court did not appear to tip its hand as to where the ultimate opinion will land.

Thoughts Moving Forward

While the Reginelli decision received a significant amount of attention in the Pennsylvania medical-legal community, opinions like Reginelli and BouSamra only add to the growing case law in which the Pennsylvania appellate courts appear to be limiting a health care provider’s ability to utilize the delineated statutory privileges.  While the ultimate scope and impact of these opinions remain to be seen, the opinion emphasizes the importance of careful and proactive planning in developing a sound structure for medical review activities to ensure the providers engaging in the review activities are afforded the autonomy and confidentiality necessary to ensure continued improvement of medical services, as the PPRPA intended.  To this end, any health care provider engaged in review activities should presently reassess both its policies as well as how the actual employees/physicians are engaging in such activities to ensure strict compliance with the statutory requirements.

In assessing any review activities, it is also important to note that Federal law can also provide an alternative or supplemental confidentiality protection.  While utilization is slowly gaining traction nationally, several hospitals have yet to implement and/or utilize a federally registered Patient Safety Organization (“PSO”).  Under the Patient Safety and Quality Improvement Act, creating a federally registered PSO affords the materials and work product of the PSO discovery protections.

While the case law surrounding this privilege is still far from developed, it provides a promising alternative, or even secondary protection, to heath care providers seeking maintaining the confidentiality of material related to retrospective investigations conducted by health systems.  Specifically, in a recent case, Burns White was able to obtain a written opinion by a Pennsylvania trial court upholding the patient safety work product privilege under the Patient Safety and Quality Improvement Act.  In a developing area of law, this opinion demonstrates the effectiveness of PSOs in protecting the necessary confidentiality of review activities.  In light of the developing precedent, PSOs appear to be positioned to afford providers the peace of mind necessary to have the candid and constructive reviews necessary to promote the continued improvement of patient care.