Bousamra v. Excela Health

• Decision Date: 21 December 2021
• Docket Number: 272 WDA 2021
• Citation: 270 A.3d 1156 (Table)
• Parties: George R. BOUSAMRA M.D. v. EXCELA HEALTH, a Corporation; Westmoreland Regional Hospital, Doing Business as Excela Westmoreland Hospital, a Corporation; Robert Rogalski; Jerome E. Granato M.D.; Latrobe Cardiology Associates, Inc., a Corporation; Robert N. Staffen M.D. ; Mercer Health and Benefits, LLC ; and American Medical Foundation for Peer Review and Education, Inc., a Corporation. Ehab Morcos M.D. v. Excela Health, a Corporation; Westmoreland Regional Hospital, Doing Business as Excela Westmoreland Hospital, a Corporation; Robert Rogalski; Jerome E. Granato M.D.; Latrobe Cardiology Associates, Inc., a Corporation; Robert N. Staffen M.D. ; Mercer Health and Benefits, LLC ; and American Medical Foundation for Peer Review and Education, Inc., a Corporation. Appeal of: Mercer Health and Benefits, LLC and American Medical Foundation for Peer Review and Education, Inc.
• Court: Pennsylvania Superior Court

270 A.3d 1156 (Table)

George R. BOUSAMRA M.D.

v.EXCELA HEALTH, a Corporation; Westmoreland Regional Hospital, Doing Business as Excela Westmoreland Hospital, a Corporation; Robert Rogalski; Jerome E. Granato M.D.; Latrobe Cardiology Associates, Inc., a Corporation; Robert N. Staffen M.D. ; Mercer Health and Benefits, LLC ; and American Medical Foundation for Peer Review and Education, Inc., a Corporation.

Ehab Morcos M.D.

v.Excela Health, a Corporation; Westmoreland Regional Hospital, Doing Business as Excela Westmoreland Hospital, a Corporation; Robert Rogalski; Jerome E. Granato M.D.; Latrobe Cardiology Associates, Inc., a Corporation; Robert N. Staffen M.D. ; Mercer Health and Benefits, LLC ; and American Medical Foundation for Peer Review and Education, Inc., a Corporation.

Appeal of: Mercer Health and Benefits, LLC and American Medical Foundation for Peer Review and Education, Inc.

No. 272 WDA 2021

Superior Court of Pennsylvania.

Filed: December 21, 2021

MEMORANDUM BY OLSON, J.:

Appellants, Mercer Health and Benefits, LLC ("Mercer") and American Medical Foundation for Peer Review and Education, Inc. ("American") (collectively, "Appellants") appeal from the January 26, 2021 order that: (1) vacated the April 24, 2019 trial court order; (2) granted the motion to compel discovery filed by George R. BouSamra,¹ M.D. ("Dr. BouSamra") and Ehab Morcos, M.D. ("Dr. Morcos") (collectively, "Appellees"); and (3) permitted use of discovered materials that Appellants claimed were privileged under the Peer Review Protection Act ("PRPA"), 62 P.S. §§ 425.1 – 425.4. We grant Appellants’ application for post-submission communication² and affirm the January 26, 2021 order.

Our Supreme Court in BouSamra v. Excela Health , 210 A.3d 967 (Pa. 2019) previously summarized the factual and procedural history, pertinent to the instant appeal, as follows:

[Dr. BouSamra] along with his colleague, [Dr. Morcos,] were members of Westmoreland County Cardiology (["]WCC["]), a private cardiology practice located in Westmoreland County[, Pennsylvania].¹ [Dr.] BouSamra and [Dr.] Morcos are interventional cardiologists, who use intravascular catheter-based techniques to treat, among other things, coronary artery disease. Interventional cardiologists utilize catheterization and angiography to measure blood flow through patients' coronary arteries and evaluate the presence of blockages. If a blockage is severe enough, interventional cardiologists implant a stent - a device which increases the blood flow through the affected artery by widening the narrowed section.

[Footnote 1 Our Supreme Court relied] on the facts as alleged by [Dr.] BouSamra in his complaint because a factual record ha[d] not yet been established by the trial court.

Westmoreland Regional Hospital is operated by Excela Health (["]Excela["]), a corporation. As of 2006, approximately 90% of the interventional cardiology procedures at Westmoreland Regional Hospital were performed by WCC. As a result, most of the income Excela realized from interventional cardiology procedures at Westmoreland Regional Hospital stemmed from WCC's procedures.

In 2007, Excela acquired Latrobe Cardiology [Associates, Inc.] (["]Latrobe [Cardiology]"). Although Latrobe [Cardiology] was a cardiology practice, it did not employ interventional cardiologists. Instead, Latrobe [Cardiology] referred its patients requiring interventional [cardiology] procedures to other cardiologist groups, including WCC. Because WCC and Latrobe [Cardiology] competed for patients, some animosity existed between the practices.

In 2008, Dr. Robert N. Staffen (["Dr.] Staffen["]), a member of Latrobe [Cardiology], complained to Excela that [Dr.] BouSamra and [Dr.] Morcos were not properly referring back to Latrobe [Cardiology] those patients whom Latrobe [Cardiology] had referred to WCC for interventional cardiology procedures. Additionally, some Latrobe [Cardiology] physicians began accusing WCC doctors, particularly [Dr.] BouSamra and [Dr.] Morcos, of performing improper and medically unnecessary stent [procedures]. In light of these accusations, one of the principals of WCC, one of the cardiologists from Latrobe [Cardiology], and the then-Chief Medical Officer of Westmoreland Regional Hospital agreed that Dr. Mahdi Al-Bassam, a skilled interventional cardiologist, would perform a review of WCC's procedures.

On April 26, 2009, Dr. Al-Bassam issued a report concluding that the accusations made against WCC were unfounded. In fact, Dr. Al-Bassam found that the interventional cardiologists demonstrated outstanding skills and judgment, and [he] found no evidence of misuse or abuse of interventional cardiology [procedures]. He further concluded that the procedures performed by WCC involved no increased complications or mortality.

In February 2010, Robert Rogalski (Rogalski) was appointed [Chief Executive Officer] of Excela, at which point he became aware of the acrimonious relationship between WCC and Latrobe [Cardiology]. Seeking to control the market for interventional cardiology in Westmoreland County, Rogalski began negotiating with WCC intending to bring WCC into Excela's network [of health care providers]. The negotiations were ultimately unsuccessful, and[,] in April 2010, WCC rejected any further negotiations.

In June 2010, Excela engaged [Mercer] to review whether physicians at Westmoreland Regional Hospital, including [Dr.] BouSamra, were performing medically unnecessary stent [procedures]. Mercer's review was based on a sampling of interventional cardiology procedure [cases]. The results of the study were critical of [Dr.] BouSamra's work, and concluded that he had performed medically unnecessary interventional cardiology procedures.

[Dr.] BouSamra received the results of [Mercer's] review on December 18, 2010. On January 11, 2011, [Dr.] BouSamra resigned his privileges at Westmoreland Regional Hospital, hoping to minimize negative professional repercussions resulting from the [review]. Prior to resigning, however, [Dr.] BouSamra had already gained provisional privileges to perform coronary intervention[al procedures] at Forbes Regional Hospital, which served patients in Westmoreland County and eastern Allegheny County[, Pennsylvania].

On February 9, 2011, Excela hired [American] to conduct a more thorough [ ] review focusing on interventional cardiology procedures performed specifically by [Dr.] BouSamra in 2010. The stated goal of [ ] American[’s] study was to determine if any of the procedures [Dr.] BouSamra performed at Excela's hospital were medically unnecessary.

While Mercer was completing its [ ] review but prior to American beginning its [ ] review, Excela contracted with an outside public relations consultant [ ] to assist Excela in managing the anticipated publicity stemming from the results of the [ ] review studies. [ ] On February 23, 2011, American issued a final report to Excela in which it concluded that [Dr.] BouSamra and [Dr.] Morcos regularly overestimated arterial blockages and inappropriately implanted stents.

...

On [ ] March 2, 2011, Excela held a press conference and publicly acknowledged the results of the [ ] review studies. In its press release, Excela stated that the [ ] review process had identified 141 patients of [Dr.] BouSamra and [Dr.] Morcos who, in the last twelve months, had received stents which may not have been medically necessary. The press conference received significant media attention the following day.

[Dr.] BouSamra initiated this action by filing a complaint on March 1, 2012, seeking damages for, among other things, defamation and interference with prospective and actual contractual relations.^[3] As the matter continued through the phases of litigation, the parties disagreed as to the scope of discoverable materials.

BouSamra , 210 A.3d at 969-971 (citation omitted). To facilitate discovery, the parties stipulated to a clawback agreement and protective order, which preserved the parties’ ability to assert a privilege. N.T., 2/5/15, at 27.

On November 4, 2014, Appellees served on all parties a motion to compel discovery and to permit the use of discovered evidence without peer review restrictions ("motion to compel"). Appellees’ motion to compel requested, inter alia , "disclosure of information generated during and as a conclusion to the reviews undertaken by [Mercer and American]." Appellees’ Motion to Compel, 10/9/15, at ¶7.⁴ Appellees requested disclosure despite acknowledging that "all defendants [ ] contended that the reports, notes and work papers, and any communications by the reviewers and review coordinators of Mercer and [American] are not discoverable [or,] even if disclosed to date in [ ] discovery, are, nonetheless, subject to the [PRPA evidentiary privilege.]"⁵ Id. at ¶5. Appellees argued that the requested materials were subject to disclosure since Mercer's and American's reviews were not peer reviews or, alternatively, that if their reviews were peer reviews, any PRPA evidentiary privilege was waived when Excela publicly disclosed the findings of those reviews. Id. at ¶¶19-63. Appellees requested,

[a]n order [ ] declaring that[:] (a) peer review protection did not apply to the Mercer and [American] reviews [or, in the alternative, that] peer review protection was waived under the circumstances; (b) [ ]Mercer, [American,] and Excela shall respond to the discovery requests of [Appellees]; and (c) Mercer and [American] reviewers and agents shall respond in oral depositions without claim of peer review protection.

Id. at 21.

On February 5, 2015, the trial court entertained argument on Appellees’ motion to compel. On July 1, 2015, the trial court denied Appellees’ motion to compel, stating,

At the time this [motion to compel] was filed, [Excela] had not turned over all documents which [Appellees] sought that were in Excela's possession, custody, or control. It had apparently withheld documents in its possession, custody, or control on the ground that they are protected by peer review.

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