Article by Josey Richards, Law Clerk
This memorandum was drafted to provide an overview of the Peer Review Protection Act (“PRPA”) and relevant case law for purposes of the Associate Primer Project.
Purpose of the PRPA
Due to the expertise and level of skill required in the practice of medicine, the Pennsylvania legislature determined the medical profession itself is in the best position to police its own activities. Young v. Western Pennsylvania Hosp., 722 A.2d 153, 156 (Pa. Super. 1998). One fundamental mechanism for the self-policing of medical professions is peer review. Leadbitter v. Keystone Anesthesia Consultants Ltd., 256 A.3d 1164, 1169 (Pa. 2021). The PRPA defines “peer review” as follows:
“Peer review” means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations. .
63 Pa. Stat. § 425.2 (emphasis added). However, medical professionals may be hesitant to engage in peer review if participation could result in retaliation, loss of comradery, or liability. Leadbitter, 256 A.3d at 1169. If peer review proceedings were not afforded protection, “the ability of the [medical] profession to police itself effectively would be severely compromised.” Young, 722 A.2d at 156. The PRPA seeks to encourage “comprehensive, honest, and potentially critical evaluations of medical professionals by their peers” through providing confidentiality and immunity to peer review. Dodson v. DeLeo, 872 A.2d 1237, 1242 (Pa. Super. 2005).
The PRPA Statute – 63 Pa. Stat. § 425:
The PRPA provides confidentiality for a review committee’s proceedings and records and is comprised of four sections:
63 Pa. Stat. § 425.1 – Short title
63 Pa. Stat. § 425.2 – Definitions
63 Pa. Stat. § 425.3 – Immunity from liability
63 Pa. Stat. § 425.4 – Confidentiality of review organization’s records
63 Pa. Stat. § 425. The definitions section defines four terms used in the statute: peer review, professional healthcare provider, professional organization, and review organization. 63 Pa. Stat. § 425.2. The immunity from liability section grants criminal and civil immunity to persons who provide information to a review organization unless the person knew or had reason to believe the information was false. 63 Pa. Stat. § 425.3. Discovery disputes for medical malpractice actions typically involve the interpretation and application of the confidentiality section, set forth below:
The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.
63 Pa. Stat. § 425.4 (emphasis added). The party invoking PRPA privilege “must initially set forth facts showing that the privilege has been properly invoked.” Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1019 (Pa. Super. 2015) (quoting Red Vision Systems, Inc. v. National Real Estate Information Services, L.P., 108 A.3d 54, 62 (Pa. Super. 2015)). Once a party has invoked PRPA privilege, the burden shifts to the requesting party to show privilege has been waived or an exception applies. Id.
To invoke protection under the confidentiality section, a document must be “derived from or part of an evaluation or review by a peer review committee.” Atkins v. Pottstown Memorial Med. Center, 634 A.2d 258, 260 (Pa. Super. 1993). For example, an incident report regarding a patient’s fall using otherwise available information constitutes a business record not entitled to PRPA protection, even if the report was created by a risk manager. Id.; See also Ungurian v. Beyzman, 232 A.3d 786, 797-978 (Pa. Super. 2020) (finding a report made in accordance with defendant hospital’s event reporting policy was merely an incident report not subject to PRPA protections). An otherwise discoverable document does not gain PRPA protection simply because it was submitted to a review committee to assist in peer review. Id. Conversely, a peer-review document does not lose privilege because some of the information contained may be available from other discoverable sources. Dodson, 872 A.2d at 1244.
A document must be derived from or created by a review committee in order to invoke PRPA confidentiality. Although the confidentiality section uses the term “review committee,” the definitions section provides a definition for “review organization.” The PRPA describes a review organization as follows:
“Review organization” means any committee engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a health insurance review committee, a hospital plan corporation review committee, a professional health service plan review committee, a dental review committee, a physicians’ advisory committee, a veterinary review committee, a nursing advisory committee, any committee established pursuant to the medical assistance program, and any committee established by one or more State or local professional societies, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto. It shall also mean a committee of an association of professional health care providers reviewing the operation of hospitals, nursing homes, convalescent homes or other health care facilities.
63 Pa. Stat. § 425.2 (emphasis added). The committee that created a document must qualify as a review committee under the PRPA in order for PRPA confidentiality to apply to the document. See e.g. Ungurian, 232 A.3d at 800 (holding a credentialing committee did not qualify as a review organization and, accordingly, the committee’s materials were not entitled to PRPA confidentiality). The name and nature of a committee are not dispositive of whether the committee qualifies as a “review committee” for purposes of the PRPA. Leadbitter, 256 A.3d at 1177 (referencing Trinity Med. Ctr. v. Holum, 544 N.W.2d. 148, 155 (N.D. 1996) (instructing applicability of PRPA should not be limited by the “name employed to describe the committee”). Qualification as a PRPA review committee centers upon whether the committee performs a peer review function. Id.
“Professional Health Care Provider”
The PRPA only applies to peer reviews conducted by professional health care providers. Accordingly, a review committee must be comprised of professional healthcare providers. Venosh v. Henzes, 121 A.3d 1016, 1020 (Pa. Super. 2015). Under the PRPA, “professional health care provider” means:
- Individuals or organizations who are approved, licensed, or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:
- a physician;
- a dentist;
- a podiatrist;
- a chiropractor;
- an optometrist;
- a psychologist;
- a pharmacist;
- a registered or practical nurse;
- a physical therapist;
- an administrator of a hospital, nursing or convalescent home, or other
- health care facility; or
- a corporation or other organization operating a hospital, nursing or convalescent home, or other health care facility; or
- Individuals licensed to practice veterinary medicine under the laws of this Commonwealth.
63 Pa. Stat. § 425.2 (emphasis added). A professional health care provider must hold a current, valid license to practice or operate. Ungurian, 232 A.3d at 799 (holding a physician did not qualify as a professional health care provider when he held an expired medical license at the time he performed peer reivew). An entity which is comprised of, or contracts with, professional health care providers does not automatically qualify as a professional healthcare provider itself. See Yocabet, 119 A.3d at 1023 (holding “an entity that is not itself a professional healthcare provider does not become one merely becomes it hires a professional health care provider to conduct its investigation”); McClellan v. Health Maintenance Org., 660 A.2d 97, 100 (finding an IPA model HMO which contracts with health professionals for the delivery of health care services is not itself a professional health care provider); Reginelli, 181 A.3d 293, 320 (holding a business entity which contracts with hospitals to provide emergency department staff is not a professional healthcare provider when the entity is neither approved nor licensed by the Commonwealth).
A review committee “cannot be conducting peer review unless that review is being performed by a professional health care provider.” Venosh, 121 A.3d at 1020. A review committee must be exclusively comprised of professional health care providers to qualify as a PRPA review committee. Ungurian, 232 A.3d at 799-800 (holding PRPA protection did not apply to minutes from a multidisciplinary Patient Safety Committee which included both professional health care providers and members of the community); But see Piroli v. Lodico, 909 A.2d 846, 852 (Pa. Super. 2006) (holding the mere presence of a billing manager, who was not a professional health care provider, on a review committee did not eviscerate peer review protections). A party must identify the members of a purported review committee as professional health care providers to assert PRPA protection. Ungurian, 232 A.3d at 798 (holding a defendant hospital’s failure to identify members of its peer review committee was fatal to its claim for PRPA privilege).
Professional health care providers must also initiate peer review. Yocabet, 119 A.3d at 1024. A professional health care provider can appoint or retain an external committee of professional health care providers to conduct peer review on its behalf and still maintain PRPA protection. Id. A professional health care provider may also initiate peer review by requesting a non-healthcare provider to retain an external committee and still qualify or PRPA protection. Venosh v. Henzes, 121 A.3d at 1020. However, PRPA protection would not apply if the external committee were appointed or retained by a non-health care provider independently and without instruction from a professional health care provider by reason that a professional health care provider did not initiate the peer review. Id.
Credentialing vs. Privileging
Pennsylvania case law draws a distinction between credentialing and privileging for purposes of PRPA application. See e.g. Leadbitter, 256 A.3d at 1175-1176. Credentialing relates to a physician’s application for appointment to a hospital’s medical staff. Id. at 115. Staff membership grants a physician political rights such as the ability to participate in meetings and vote. Id. Credentialing involves a review of objective criteria such as academic degrees, board certification, type of licensure, and history. Id. at 1175-76. Privileging relates to a physician’s application to obtain permission to treat patients at the hospital. Id. Privileging determines the scope of clinical care a physician may provide at the hospital and evaluates the applicant’s experience, capabilities, and competence. Id. Although the criteria reviewed for the purposes of credentialing and privileging may overlap, the two processes are distinct. Id.
In Reginilli, the court distinguished “review organizations” as an umbrella term for “review committees,” stating a review organization must also be a review committee for PRPA protection to apply. Id. at 1170-1171. Consequently, the court in Krappa concluded the PRPA did not apply to a physician’s credentialing materials because the credentialing committee did not qualify as a review committee under Reginilli. Estate of Krappa v. Lyons, 211 A.3d 869, 875 (Pa. Super. 2019). However, the Supreme Court in Leadbitter overruled the Reginilli distinction between review committee and review organization. Leadbitter, 256 A.3d at 1176-1177. The Court held a review organization, even if not entitled to a review committee, is entitled to PRPA protection if performing a peer review function. Id. at 1176-1177. Under the new analysis of what constitutes a PRPA review committee, the Court determined a credentialing committee may invoke PRPA protections when it engages in peer review. Id. at 1177.
In order for the PRPA to protect a committee’s record or proceeding from discovery, the following criteria must be met: 1) the review committee was performing a peer review function; 2) the review committee was comprised of professional health care providers; 3) a professional health care provider initiated the peer review; and 4) the document or proceeding was derived from or part of the committee’s engagement in peer review.