The Supreme Court of Pennsylvania’s discussion of the discoverability of a physician’s credentialing file in a negligence action illustrates how peer review communications and information that are ordinarily thought to be privileged and confidential may still be subject to discovery in litigation.

Hospital Appoints Orthopedic Physician to Medical Staff After Credentialing Committee Review

In 2014, Dr. Carmen Petraglia applied to be appointed to the medical staff of Defendant, St. Clair Hospital (the “Hospital”).  He also applied for orthopedic surgery clinical privileges.^[1]  In considering these applications, the Hospital’s credentialing committee reviewed a variety of information and documentation and ultimately recommended that Dr. Petraglia’s requests be granted.^[2] Dr. Petraglia thereafter accepted an appointment to the Hospital’s medical staff with delineated clinical privileges in the Department of Surgery, Orthopedic Surgery Section.^[3]

Patient Sues Hospital After Spinal Surgery Resulted in Injury and Seeks to Obtain Dr. Petraglia’s Complete Credentialing File Through Discovery

Following his appointment to the Hospital’s medical staff and obtaining clinical privileges at the Hospital, Dr. Petraglia examined Plaintiff, James Leadbitter, and ultimately recommended Mr. Leadbitter undergo spinal surgery.  Dr. Petraglia performed the surgery at the Hospital over two days in January 2015.^[4]  Shortly thereafter, Mr. Leadbitter suffered a series of strokes that resulted in numerous impairments, including permanent brain damage.^[5]

Mr. Leadbitter and his wife (“Plaintiffs”) sued the Hospital for numerous claims, including negligence, corporate negligence, and vicarious liability.  As to the vicarious liability claim, the Plaintiffs alleged that the Hospital’s credentialing and privileging process was inadequate in, that the Hospital knew or should have known that Dr. Petraglia lacked the expertise to be authorized to perform the spinal surgery.^[6]  Based on this argument, in March 2017, the Plaintiffs served the Hospital with a request for documents seeking Dr. Petraglia’s complete credentialing and/or privileging file.^[7]  While the Hospital produced much of the requested information from Dr. Petraglia’s file to the Plaintiffs, the Hospital withheld or redacted several documents it considered to be privileged.^[8]

Pennsylvania Supreme Court’s Decision Concerning the State’s Peer Review Protection Act Renews Plaintiffs’ Discovery Request

Approximately one year after Plaintiffs requested Dr. Petraglia’s complete credentialing file, the Supreme Court of Pennsylvania decided Reginelli v. Boggs, which held, among other things, that the evidentiary privilege set forth in the Pennsylvania Peer Review Protection Act (“PRPA”) applies to the documents of a “review committee,” but not to the documents of all “review organizations,”^[9] discussed below. 

Under Pennsylvania law, a “review organization” is defined as “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.”^[10]  By contrast, the Pennsylvania Supreme Court has interpreted a “review committee” as a committee which engages in peer review.^[11]

In light of the Reginelli decision, the Plaintiffs again asked the Hospital to produce Dr. Petraglia’s complete, unredacted credentialing file. The Hospital responded by providing additional portions of the file, but withheld five documents that the Hospital contended were non-discoverable:

• an Ongoing Professional Practice Evaluation (“OPPE”) Summary Report;

• a Professional Peer Review Reference and Competency Evaluation, which contained evaluations prepared by other physicians concerning Dr. Petraglia’s performance; and

• three documents described as “National Data Bank Practitioner Query Response,” which were documents from the National Practitioner Data Bank (“NPDB”)  in response to the Hospital’s queries to the NPDB on July 2014, December 2014, and January 2017.^[12] 

The Hospital also redacted information from three documents that it characterized as containing professional opinions relating to Dr. Petraglia’s competence.^[13] 

Plaintiffs thereafter filed a motion to compel the production of Dr. Petraglia’s entire, unredacted credentialing file.  The Hospital responded by arguing that the documents it withheld or redacted were privileged under PRPA, and specifically argued that the NPDB query responses were protected under the federal Health Care Quality and Improvement Act (“HCQIA”).^[14]  Relying on Reginelli, the county court initially granted Plaintiffs’ motion and concluded that files relating to a physician’s membership or continued membership on a hospital’s medical staff constitute credential review files (as opposed to peer review files) and, therefore, are not protected under PRPA, including the information requested from the NPDB (as the NPDB information was part of the same file as the other unprotected information).^[15]

The Hospital filed a motion for interlocutory appeal^[16] and argued that the materials Plaintiffs sought constituted peer review documents subject to PRPA’s protection, and that the court mistakenly ordered the Hospital to produce the NPDB documents notwithstanding the federal protections under HCQIA.^[17]

Distinguishing Between Review Committee Documents and Review Organization Documents

The Superior Court affirmed the county court’s decision on appeal.  Although the court indicated that the documents at issue constituted peer review documents as contemplated by PRPA, the court interpreted Reginelli as holding that only documents of a review committee, as opposed to a review organization, enjoyed the statutory protection, regardless of the nature of such documents.^[18]  The court found that the Hospital’s credentialing committee constituted a review organization and, therefore, Dr. Petraglia’s credentialing report fell outside the purview of PRPA and was not privileged.  Moreover, the court found that the NPDB documents were likewise unprotected given that they were part of the same file as the other unprotected information, explaining that HCQIA’s own language indicates that “nothing in its conferral of confidentiality is meant to prevent the disclosure, by a party which is otherwise authorized under state law to make such disclosure, of the information reported pursuant to the HCQIA.”^[19]

The case was then brought before the Pennsylvania Supreme Court.  In the Supreme Court’s opinion, the court explained the distinction between a review organization and a review committee based on PRPA’s language and the Reginelli decision.  Essentially, the court said that a “review organization” broadly encompasses any hospital board, committee, or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.^[20]  In contrast, the court explained that a “review committee” is limited to a committee that engages in peer review (noting that nothing in 63 P.S. § 452.2 or Reginelli suggests the committee must engage exclusively in peer review to qualify as a review committee).^[21]  Hence, “review organization” is a more expansive term than a “review committee” under Pennsylvania law, and not every review organization qualifies as a review committee such that it would be afforded the confidentiality protections under PRPA.  On the other hand, committees that are ordinarily thought of as non-review committees such as a credentials committee may still come within the purview of PRPA’s confidentiality protections if said committee performs a peer review function.^[22]

Moreover, the court noted there is a distinction between the terms, “credential review” and “peer review.”    Specifically, a credential review concerns the review of professional qualifications or activities of its medical staff or applicants for admission thereto, while peer review is limited to the evaluation of the quality and efficiency of services ordered or performed by a professional health care provider.^[23]  Notably, the court expressed that after Reginelli was decided, courts have tended to focus on the type of committee whose records are being sought when deciding whether PRPA’s protections apply.

The Difference Between Privileging and Credentialing and Why it Matters

While the court found Reginelli largely instructive when distinguishing between a review organization and a review committee, it noted that Reginelli did not involve a situation where a physician, like Dr. Petraglia, was applying for hospital privileges at the same time he was seeking an appointment to the medical staff.  Privileging is distinct from credentialing, as privileging involves giving the physician permission to treat patients at the hospital, and not merely to exercise political rights in relation to staff and committee meetings.^[24]

Under this backdrop, the court agreed with the Hospital’s core position that a committee that performs a peer review function, although it may not be specifically entitled a “peer review committee,” nonetheless constitutes a review committee whose proceedings and records are protected under Section 4 of PRPA.^[25]  Thus, the court reasoned that the Hospital’s credentials committee enjoy would such protection only if the credentials committee engaged in peer review.  In other words, the information redacted by the Hospital and the documents the Hospital withheld were not discoverable by the Plaintiffs if they constituted peer review “proceedings” or “records” in accordance with PRPA’s definition of peer review.^[26]   

Ultimately, the court did not definitively decide whether the information and communications sought by Plaintiffs were discoverable, as it remanded this issue back to the county court to decide whether such materials constitute peer-review under PRPA, consistent with the Supreme Court’s analysis.  The court did explicitly acknowledge Plaintiffs’ argument that the statutory definition of “peer review” is framed in terms of “professional health care providers” – which, in turn, is limited to “individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field” under Pennsylvania law.^[27]  On the other hand, the Court noted that other courts have found that, “[i]n essence, the [subject hospital’s] Credentials Committee is really a specialized quality assurance committee, charged with assuring the competence of physicians authorized to practice at [the hospital]. It performs this function by maintaining files and reviewing the performance on each physician authorized to practice at [the hospital]. ... Thus, the concerns about, and the objective to assure, open and honest physician participation in the peer review process emphasized in the legislative history support application of the privilege to the Credentials Committee.”^[28] 

Information Divulged by the NPDB to a Hospital in Response to a Query is Not Discoverable

Turning to whether the NPDB query response documents sought by Plaintiffs were discoverable, the Court looked at HCQIA’s statutory language to see what information may be permissibly disclosed.  The court reasoned that information reported by a hospital to the NPDB such as a physician report is potentially discoverable based on state-law authorization statutes (e.g., PRPA), but nothing in the statutory language suggests that information given to a hospital from the NPDB in response to a query is disclosable, and in fact, such information is protected from disclosure under federal law, regardless of any state law to the contrary.^[29]  Therefore, the Court held that Plaintiffs were not entitled to discover the NPDB query response documents.

Take-Away

The nuances under state law as to what information is protected peer review information in a particular setting and, therefore, whether the information is privileged, can be difficult to discern, even when such information is ordinarily thought of as sensitive.  It is important to consult with attorneys before engaging in credentialing and peer review activities and when updating your hospital’s Medical Staff Bylaws to best apply state-specific laws and the appropriate processes to promote the confidentiality of physician credentialing and privileging information.

FOOTNOTES

^[1]Leadbitter v. Keystone Anesthesia Consultants, Ltd., 256 A.3d 1164, 1166 (Pa. 2021).

^[2]Id. at 1166.

^[3]Id.

^[4]Id.

^[5] Id.

^[6]Id.

^[7]Id. at 1167.

^[8] Id.

^[9]Id. (citing Reginelli v. Boggs, 645 Pa. 470, 490 (2018)).

^[10] 63 P.S. § 452.2.

^[11]See Leadbitter, 256 A.3d at 1170

^[12]Id. at 1167.

^[13]Id.

^[14] For a detailed discussion on HCQIA, see Polsinelli’s July 2021 Med-Staff Newsletter.

^[15]Leadbitter, 256 A.3d at 1167.

^[16] An interlocutory appeal is a procedure whereby a party to action seeks to appeal a court’s decision prior to the final judgment, i.e., before a trial is performed and a judgment is rendered.

^[17]Leadbitter, 256 A.3d at 1168.

^[18]Id.

^[19]Id.

^[20]Id. at 1170-1171 (citing 63 P.S. §§ 425.2, 425.4).

^[21]Leadbitter, 256 A.3d at 1170, 1177 (citing Reginelli, 645 Pa. at 486 n.8).

^[22]Id. at 1177.

^[23] Id. at 1171 (citing Reginelli, 645 Pa. at 490).

^[24] Leadbitter, 256 A.3d at 1175.

^[25]Id. at 1177.

^[26] Id. at 1178.

^[27]Id.

^[28]Id. at 1177 (citing Trinity Med. Ctr. v. Holum, 544 N.W. 2d 148, 155 (N.D. 1996)).

^[29] Id. at 1182.