On March 27, 2018, the Pennsylvania Supreme Court issued a ruling significantly impacting Pennsylvania’s peer review protections. The Court in Reginelli v. Boggs held that the privilege provided by the Pennsylvania Peer Review Protection Act did not extend to a physician’s performance review file which was maintained by the physician’s employer, an emergency medicine physician practice group.
In Reginelli, a medical malpractice plaintiff sought the discovery of physician performance reviews. The reviews in question were conducted by a supervising physician employed by the physician-defendant’s practice group. The practice group, not the hospital, maintained the performance review file. The defendants each invoked the peer review privilege to prevent the discovery of this file. Ultimately, the Pennsylvania Supreme Court ruled that the privilege did not extend to the performance review files in question, and that they must be produced.
In reaching its conclusion, the Court maintained a strict interpretation of those entities which could claim the peer review privilege, excluding all others, such as physician practice groups. The Court went on further, effectively limiting a hospital’s exercise of the peer review privilege to only those “proceedings and documents of a review committee.” In doing so, the Court appeared to adopt a very narrow definition of “review committee,” arguably only encompassing formal, hospital-established peer review committees. This section of the opinion also appears to have removed the activities of a credentialing review committee from the protections of the peer review privilege, effectively reversing prior case law to the contrary.
While not directly addressed, the Reginelli opinion highlights another significant issue where hospitals rely upon outside entities, such as physician practice groups, to conduct peer review activities. The Court has long held that these oversight functions are non-delegable. While the Court has also held that a hospital could contract with another entity for the performance of peer review functions, the Reginelli opinion seemingly scrutinized this practice. In Reginelli, the practice group had contractual responsibility with the hospital to evaluate all physicians working in the department. While the Court largely side-stepped this issue, it nonetheless deemed peer review inapplicable to the reviews in question.
The peer review privilege was put in place to allow medical providers the confidentiality necessary to perform candid reviews, and improve the medical services offered. This opinion adds to the series of recent Pennsylvania appellate cases which have continued to limit the peer review privilege, seemingly ignoring this purpose and the current realities of medical oversight. Nonetheless, the Court has not eliminated the peer review privilege, but instead adopted a more formalized application of the privilege than formerly thought to apply. Thus, with appropriate planning, it still appears possible to maintain the peer review privilege for many of the activities currently thought to fall under the umbrella of peer review.