On March 27, 2018, the the Supreme Court of Pennsylvania sent every emergency medicine contracting group scrambling to ensure their peer-review processes were comporting with the laws in their respective states. Taking a very strict interpretation of the Pennsylvania Peer Review Protection Act (PRPA), the court held that the emergency medicine contracting group, UPMC Emergency Medicine, Inc. (ERMI), did not qualify as a “professional health care provider” under the PRPA and was thus not given the evidentiary privilege afforded by the state’s peer-review statute.

The court ruling stems from the medical malpractice action of Reginelli v Boggs. The clinical story is a seemingly familiar one in emergency medicine, whereby a patient presents to the emergency department with epigastric discomfort, returning later with a misdiagnosed myocardial infarction. The issues soon turned from the basic elements of a negligence claim to the discoverability of peer-review material. During a deposition, it became apparent that Brenda Walther, MD, the ED director, maintained a “performance file” on the physicians in the group, including the defendant, Marcellus Boggs, MD. The plaintiffs filed a motion to compel production of the performance file, which was allowed by virtue that “ERMI, as an independent contractor, is not an entity enumerated in the PRPA as being protected by peer review privilege.”

The PRPA articulates that “peer review” is undertaken and protected by “professional health care providers,” which are defined as those “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.”1 Among the 12 protected individuals or organizations listed in the act, two are “a physician and a corporation or other organization operating as a hospital.”¹

The Supreme Court of Pennsylvania affirmed the appellate court’s assertion that ERMI did not “qualify as a health care provider under the PRPA, because it is not approved, licensed, or otherwise regulated to practice or operate in the health care field in Pennsylvania, and it did not become one because one of its employees (Walther) conducted an evaluation of another of its employees (Boggs).”

The court suggested that peer-review protections would have been afforded to ERMI and Dr. Boggs had Dr. Walther been a designated and documented member of the hospital’s peer-review committee. Alternatively, the court asserted that the evidentiary privilege could have been afforded had the staffing hospital established a formal written affiliation with ERMI as an outside entity to conduct its peer-review processes for the emergency department. Although the court record alluded to an existing quasi-contractual peer-review arrangement at the trial phase of the proceedings, the agreement was not provided in a timely fashion to the court and thus became inadmissible on appellate review.

While it is a tough pill to swallow, the ruling in this case should prompt the majority of emergency medicine groups to reassess the protections their peer-review processes have in the context of the statutes in the states where they operate.

Lessons Learned

1. Review your state’s peer-review statute to ensure strict compliance.
2. Confirm written affiliation between the hospital and the ED group/director to specifically perform the peer-review process.
3. Consider making the ED director or other group designee a member of the hospital peer-review process/committee.
4. Identify all peer-review personnel, materials, and processes as affirmatively falling within the peer-review statutory authority.
5. Periodically update the hospital/group agreement using language commensurate with that of the protecting peer-review statute.
6. Mark all peer-review correspondences in any form (written, oral, electronic, etc.) as protected peer-review material.

Dr. Totz is facility medical director at First Choice Emergency Room at Adeptus Health in Texas.

Reference

1. 63 Pa Stat § 425.2.