Dibble v. Penn State Geisinger Clinic, Inc.

• Decision Date: 16 May 2002
• Citation: 806 A.2d 866,2002 Pa. Super. 156
• Parties: Rhoda DIBBLE, Individually and as Executrix of the Estate of Charles Dibble, Appellee, v. PENN STATE GEISINGER CLINIC, INC. d/b/a Geisinger Medical Group, Geisinger Health Plan, Penn State Geisinger Health Systems, Inc., Dr. Gregory J. Fino, Dr. Matthew Connely, Seth W. Fisher, M.D., Geisinger Wyoming Valley Medical Center, Geisinger Medical Center, Dr. Robert Scalia, D.O., Charles A. Laubach, Jr., M.D. and Dr. James Blankenship, Appellants.
• Court: Pennsylvania Superior Court

806 A.2d 866

2002 Pa. Super. 156

Rhoda DIBBLE, Individually and as Executrix of the Estate of Charles Dibble, Appellee, v. PENN STATE GEISINGER CLINIC, INC. d/b/a Geisinger Medical Group, Geisinger Health Plan, Penn State Geisinger Health Systems, Inc., Dr. Gregory J. Fino, Dr. Matthew Connely, Seth W. Fisher, M.D., Geisinger Wyoming Valley Medical Center, Geisinger Medical Center, Dr. Robert Scalia, D.O., Charles A. Laubach, Jr., M.D. and Dr. James Blankenship, Appellants.

Superior Court of Pennsylvania.

Argued December 12, 2001.

Filed May 16, 2002.

Reargument Dismissed June 7, 2002.

David E. Manoogian, Washington, and Daniel T. Brier, Scranton, for Geisinger Clinic, appellant.

Kevin P. Foley, Scranton, for appellee.

Before CAVANAUGH, STEVENS and BECK, JJ.

CAVANAUGH, J.

¶ 1 This is an appeal from the denial of a motion for a confidentiality order presented by defendants, the Geisinger Health Plan HMO and certain of its participating health care providers, which sought to prevent plaintiff from disclosing, disseminating and/or otherwise publishing numerous pages of documents that the defendants produced during discovery conducted in an underlying medical malpractice action. The documents pertained to the HMO's managed care procedures, and included, inter alia, information regarding individual physicians' compensation, HMO salary/bonus incentive procedures as well as policies regarding the hiring and retention of plan physicians. After producing the documents, defendants sought plaintiff's agreement to keep the information confidential. Plaintiff's counsel declined to execute the proposed confidentiality agreement. Rather, he stated his intention was to use the information produced in the instant lawsuit to support his firm's prosecution of several unrelated lawsuits against the HMO and to exchange the information produced with outside attorneys and law firms engaged in unrelated actions against the HMO. Thus, in late August of 2000, defendants sought a confidentiality order from the trial court, in part on the grounds that the records produced included proprietary trade secrets and that the documents contained information entitled to protection under a constitutional right to privacy. On January 3, 2001, as part of a "general housekeeping order" to dispose of "various outstanding issues in this involved and complex litigation" the trial court summarily denied, among other things, "Defendants Petition for an Order of Confidentiality." Defendants now appeal the order denying relief as separable from and collateral to the main cause of action pursuant to Pa.R.A.P. 313 and allege that the trial court erred in denying the petition.¹ We agree and accordingly, we reverse.

¶ 2 The facts, as gleaned from the record, show that in 1987, plaintiff husband, Charles Dibble, became eligible for Medicare. In 1990, he purchased a "Medicare wrap around" supplemental health insurance plan from appellant Geisinger Health Plan. The HMO coverage was a supplement to the traditional Medicare "fee for service" plan which was the primary payor for Mr. Dibble's health care treatment. ¶ 3 Mr. Dibble was hospitalized for a heart attack in January of 1994. While in the hospital, a digital rectal examination showed an enlarged prostate and a prostate specific antigen (PSA) blood test revealed a slight elevation.² The hospital discharge summary noted the findings of enlarged prostate and elevated PSA. Mr. Dibble saw his primary care physician a number of times after January of 1994 complaining of increased frequency and difficulty in urinating but no follow-up PSA was ordered until July of 1996. By that time, plaintiff's PSA levels were greatly elevated. In October of 1996, plaintiff was referred to a urologist. An ultrasound and a further elevated PSA confirmed the presence of prostate cancer.

¶ 4 Mr. and Mrs. Dibble sued the primary care physician, the primary care physician's group, the individual doctors in the group and the HMO for, inter alia, failure to timely diagnose cancer.³ Paragraphs 39, 99, 100 and 102 of the complaint alleged that the primary care physician and his group had a financial incentive to hold down the number of patient referrals to specialists. The complaint alleged that the physicians received cash bonuses from the HMO for minimizing the number of tests, treatments and referrals and that the defendant physicians intentionally limited the amount of medical care Mr. Dibble received to further their own financial interests.

¶ 5 During discovery, plaintiff requested the production of all relevant documents showing agreements between the doctors and the HMO, including data on physician salaries and incentive bonuses. Defendants moved for a protective order, claiming that the information was privileged and non-discoverable. The motion was denied and the defendants complied with a court order compelling production. The order at issue herein, denying the subsequent request for confidentiality, was entered on January 3, 2001.

¶ 6 In May, 2001, in exchange for keeping a scheduled trial date of July 9, 2001, plaintiff agreed to drop all claims regarding physicians' salaries, incentive compensation and managed care. The parties stipulated that paragraphs 39, 99, 100 and 102 would be stricken from the amended complaint and the trial court entered an order of partial dismissal based on the stipulation.

¶ 7 It appears that the parties subsequently reached a settlement regarding the negligence claims and there are no substantive issues before us concerning the underlying action. However, despite apparent resolution of the underlying lawsuit and the fact that there is no longer any discernable relevance to the documents regarding physician compensation or managed care due to, among other things, dismissal of the claims to which the documents pertained, plaintiff's counsel will not agree to the confidentiality of the documents which are apparently still in his possession. The record and our research reveal that several other lawsuits raising issues of financial incentives to physicians to limit treatment have been brought in Lackawanna County against the Geisinger Health Plan HMO and its clinics and providers. Instant plaintiff's counsel will not agree to limit use of the discovery in this case to the seemingly completed prosecution of this case, but proposes to use it in the attempt to establish liability in other cases. It is clear to this court that the attorneys on both sides of this dispute have allowed their differences of opinion to become inflexible and have allowed the discovery battles in this and other on-going, unrelated actions to devolve into a mutual and personal distrust for each other that clearly borders on loathing and vituperation.⁴

¶ 8 Following apparent settlement of the underlying lawsuit, a praecipe for discontinuance was entered on November 15, 2001. On December 5, 2001, appellant HMO filed a praecipe to strike the praecipe for discontinuance which provided:

In light of the ongoing appeal currently pending in the Superior Court of Pennsylvania at Docket No. 275 MDA 2001, with argument scheduled on December 12, 2001, please strike the Praecipe for Discontinuance filed on November 15, 2001, by counsel for Plaintiff. Please mark the above-captioned litigation re-opened upon Praecipe of Defendant Geisinger Clinic.

¶ 9 Notwithstanding the intractability and blatant gamesmanship of the attorneys involved which has created a need for appellate resolution of an issue where perhaps the conduct of collegiality and compromise could resolve the matter without resort to judicial resources, the issue regarding the propriety of the trial court's denial of the confidentiality request is now ripe for appellate review.

¶ 10 As an initial matter, we consider appellee's request for quashal which is based on the contention that the order appealed from is not separable from and collateral to the main cause of action but is an interlocutory order. After careful review, we disagree and conclude that the appeal is properly before us.

An appeal may be taken only from a final order unless otherwise permitted by statute or rule. A final order is ordinarily one which ends the litigation or disposes of the entire case; however, "[a]n appeal may be taken as of right from a collateral order of an administrative agency or court." Pa.R.A.P. 313(a). A collateral order is defined under Pa. R.A.P. 313(b) as "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost."

Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547, 550 (1999) (footnote omitted).

¶ 11 In Schwartz, our supreme court determined that an appeal from an order compelling the production of an investigative file of the defendant dentist in a malpractice action held by the Bureau of Professional and Occupational Affairs which the Bureau claimed was privileged, was an appealable collateral order under Rule 313. The court considered three prongs in its analysis; 1) whether the order was separable from the main cause of action, 2) whether the right involved was too important to be denied review and 3) whether the claim would be irreparably lost should review be denied. Id.

¶ 12 The court concluded that the issue of privilege was separable from the main cause of action because it could be addressed without analysis of the alleged negligence of the treating dentists. Id. at 552. The court then addressed the "importance" prong and conducted a balancing test: the nature of the potentially unprotected right versus the competing efficiency interest advanced by adherence to the final judgment rule. The court concluded that resolution of the issue of whether the file was privileged implicated public policy rights which tipped the balance in favor of immediate appellate review. I...