Article by Josey Richards
The following is an execute summary of the recently-decided matter, Ford-Bey v. Professional Anesthesia Services, 2023 WL 5920181, Pa. Super. 163 (September 12, 2023).
The cause of action arose from a wrist surgery decedent received at defendant hospital (“Hospital”). Shortly after surgery, defendant suffered cardiac and respiratory failures which required transfer to another facility. A nurse reported the incident pursuant to defendant hospital’s Sentinel Event Policy (“Policy”) and Lisa Gill, who holds several titles at defendant hospital, conducted a root cause analysis (“RCA”) to determine the cause of decedent’s decline. In June 2015, Gill conducted interviews of hospital staff members involved in decedent’s surgery and care and took notes on a three-page form containing standard questions. Gill also authored a report which was sent to the Pennsylvania Patient Safety Authority (“PPSA”). Decedent remained in a vegetative state after the surgery before dying in July 2015. After decedent’s death, the estate filed a medical malpractice claim against Hospital.
During the course of discovery, the estate requested all documents and data from the RCA conducted by Gill. In opposition, Hospital asserted materials pertaining to the RCA were protected due to obligations under section 311(a) of MCARE. Hospital’s corporate designee testified during deposition that although Hospital did not have a “patient safety committee” as required by MCARE, the Committee on Quality Initiatives reviews safety during its meetings and receives reports of all incidents at the hospital. Hospital argued section 311(a)’s confidentiality provision does not require that a patient safety committee or board of directors actually examine the RCA. Instead, the confidentiality provision only requires that the documents, materials, or information created or prepared by Gill “arise out of” a patient safety committee or governing board’s duties to review matters under section 310(b). The Policy served to ensure compliance with MCARE and thus was “rationally related” to MCARE.
The trial court rejected these arguments for privilege under MCARE and reasoned because the Policy was “clearly not an implementation of the investigation or reporting requirements” of MCARE. The trial court cited the fact that the Policy did not explicitly refer to MCARE, did not require the hospital’s patient safety committee to receive reports from an investigation, and only called for the hospital’s governing board’s involvement in limited circumstances in support of this conclusion. Additionally, the trial court highlighted that defendant hospital failed to establish that its patient safety committee or governing board “in fact” reviewed Gill’s notes from the RCA. Without evidence that a patient safety committee or governing board reviewed Gill’s notes, the trial court concluded section 311(a) could not apply.
On appeal, the Superior Court affirmed the trial court’s holding that section 311(a) did not apply to Gill’s notes and emphasized use of the word “solely” in section 311(a) as a critical term. The Superior Court held in order assert privilege under section 311(a), a defendant hospital must demonstrate the notes were exclusively prepared or created to comply with MCARE. Defendant hospital derived the Policy from a Kansas corporation, failed to provide any clear evidence that the Policy implemented the special requirement of a safety plan required by MCARE, and the Policy failed to establish a designed patient safety officer or patient safety committee. During deposition, defendant hospital’s corporate designee stated Gill held many titles and could only testify that Gill “possibly” was the MCARE-required patient safety officer. Therefore, section 311(a) did not apply to the RCA and the order requiring discovery of any data and documents pertaining to Gill’s RCA was affirmed.
Issue of Lisa Gill’s Title:
The opinion is vague regarding the exact title(s) Lisa Gill held at Physician’s Care Surgical Hospital (defendant hospital in this case). Relevant excerpts from the opinion are included below:
- Lisa Gill (“Gill”), who holds several titles at Hospital, conducted a “root cause analysis” to determine the cause of Ms. Ford-Bey’s decline.
- Doyle [the corporate designee] described Gill’s corporate titles as “possibly” Hospital’s patient safety officer, and as Hospital’s director of quality and accreditation, the “performance improvement department,” and a senior clinical nurse.
- Hospital’s CEO and corporate designee, offered only equivocal testimony that Gill held several corporate titles, and was “possibly” Hospital’s designated MCARE patient safety officer.
- Footnote 11: Even if Gill acted as an MCARE patient safety officer—as opposed to a director of quality and accreditation or some other corporate responsibility— Hospital’s evidence did not establish she met her MCARE duties to report to the patient safety committee the actions she took to promote patient safety based on investigations she commenced for a serious event.
Gill’s LinkedIn reflects the titles of “Director of Quality and Accreditation” and “Utilization Manager” for defendant hospital. Gill no longer worked at defendant hospital at the time of the opinion so her information unfortunately could not be found on the hospital website.
Advisory Implications:
The court in Ford-Bey acknowledged the absence of any published appellate court opinions analyzing MCARE section 311(a). Accordingly, as the first published appellate court decision to analyze section 311(a), Ford-Bey will be controlling on the issue pending subsequent opinions. To prevent discovery of documents pertaining to an RCA, clients should ensure sentinel event policies explicitly reference MCARE requirements, RCA documents are exclusively distributed to a patient safety committee, and the hospital’s designated patient safety officer and patient safety committee are named and referred to as such.