Estate of Krappa v. Lyons, 822 MDA 2018

• Decision Date: 23 May 2019
• Docket Number: No. 822 MDA 2018,822 MDA 2018
• Citation: 211 A.3d 869
• Parties: ESTATE OF Leonard P. KRAPPA, Deceased, by and Through His Administrator, Leonard A. Krappa, and Margaret Krappa, Individually and in Her Own Right v. Mark LYONS, D.O.; Frank Piro, M.D.; Jonathan C. Sullum, M.D.; Juan C. Barrera, M.D.; James Frangos, M.D.; Louis Degennaro, M.D.; and Community Medical Center Appeal of: Community Medical Center
• Court: Pennsylvania Superior Court

211 A.3d 869

ESTATE OF Leonard P. KRAPPA, Deceased, by and Through His Administrator, Leonard A. Krappa, and Margaret Krappa, Individually and in Her Own Right

v. Mark LYONS, D.O.; Frank Piro, M.D.; Jonathan C. Sullum, M.D.; Juan C. Barrera, M.D.; James Frangos, M.D.; Louis Degennaro, M.D.; and Community Medical CenterAppeal of: Community Medical Center

No. 822 MDA 2018

Superior Court of Pennsylvania.

Argued March 5, 2019

Filed: May 23, 2019

Kim Kocher, Philadelphia for appellant.

Malcolm L. MacGregor, Scranton, and Rosalind T. Kaplan, Marlton, NJ, for Estate of Krappa, Krappa, L., and Krappa, M., appellees.

Gary M. Samms, Philadelphia, for Piro, appellee.

BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.^*

OPINION BY NICHOLS, J.:

Appellant Community Medical Center appeals from the order granting the emergency motion to compel discovery¹ filed by Appellees Estate of Leonard Krappa, deceased, by and through his administrator, Leonard A. Krappa, and Margaret Krappa, individually and in her own right. Appellant claims the trial court erroneously granted the emergency motion to compel, because Appellees sought the production of documents that are privileged under the Peer Review Protection Act² (PRPA). We affirm.

The trial court opinion set forth the relevant facts of this appeal as follows:

[Appellees] initiated this medical malpractice action ... in January 2012 alleging a delay in the diagnosis of cancer.

In [the] complaint, [Appellees] raised thirteen (13) counts against multiple Defendants. Pertaining to this appeal, Count II asserts a negligence claim against Frank Piro, M.D. with respect to his interpretation of a CT scan in January 2008. Count VII asserts a claim of direct negligence against [Appellant]. Count VIII asserts a corporate liability claim against [Appellant] with respect to the hiring, training, and/or supervising physicians, including Dr. Piro. Count IX asserts a claim of vicarious liability against [Appellant,] alleging [Appellant] is responsible for the actions or inactions of its employees and/or agents, including Dr. Piro. Count X asserts a claim of ostensible agency against [Appellant] with respect to Dr. Piro. In addition, the complaint asserts claims for wrongful death, survival action, and loss of consortium.

During the course of discovery, [Appellees] sought unredacted copies of [Appellant's] files for Drs. Piro and Sabbar. [Appellant] and Dr. Piro objected to the production and asserted the information requested was privileged pursuant to the [PRPA].

Trial was scheduled to begin on April 9, 2018. On April 5, 2018, [Appellees] filed an emergency motion to compel [Appellant] to produce the unredacted and complete credentialing materials for Drs. Piro and Sabbar. In [the] motion, [Appellees] sought production of unredacted credentialing files,^[3] based on the recently decided Pennsylvania Supreme Court decision Reginelli v. Boggs , 181 A.3d 293 (Pa. 2018).^[4]

Oral argument was heard on Friday, April 6, 2018. [At that time, Appellant asserted that Reginelli was inapplicable. Appellant argued that its credentialing committee constituted a "review committee" whose records must remain confidential under the PRPA. Further, Appellant insisted that the performance evaluations in its files satisfied the PRPA's definition of "peer review" materials.] On Monday, April 9, 2018, [the trial] court conducted an in camera review of the ... unredacted credentialing files for both Drs. Piro and Sabbar. Additional oral argument was heard on April 10, 2018. On April 11, 2018, [the trial] court entered an order compelling the production of the unredacted ... files [generated by Appellant's credentialing committee] pursuant to Reginelli .

On May [10], 2018, [Appellant] filed a notice of appeal. On June 22, 2018, [the trial] court entered an order granting [Appellant's] request for a stay pending appeal.

Trial Ct. Op. 7/23/18, at 1-2 (unpaginated).

The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On July 23, 2018, the court filed an opinion pursuant to Pa.R.A.P. 1925(a). The court asserted that Appellees sought to obtain credentialing materials for Drs. Piro and Sabbar and such materials are discoverable under Reginelli .

Appellant now presents one question for this Court's review:

Did the trial court err, as a matter of law, in construing Reginelli ... as announcing a blanket rule depriving all previously-protected credentialing committee materials of peer review protection, when the issue of a credentialing committee's review of physician performance was not before the Supreme Court; to the extent the Supreme Court addressed credentialing materials, it limited its discussion to that part of the credentialing process concerned only with factual review of professional qualifications, such as board certifications, and professional activities, such as service on professional organizations; and the Court reaffirmed that the peer review privilege protects the records of any review committee when one professional health care provider is evaluating the performance of another professional healthcare provider?

Appellant's Brief at 4 (quotation marks omitted).

Appellant maintains that the trial court overruled Appellant's "claim of peer review protection for the performance evaluation materials contained in the credential files for Dr. Piro and Dr. Sabbar." Id. at 11. Appellant contends that its "credentialing committee records relating to peer evaluations, performance appraisals, and responses to [National Practitioner Data Bank] queries, for the initial appointment and reappointment of Dr. Piro and Dr. Sabbar, which were generated for quality improvement purposes and maintained exclusively by the committee, fall squarely within the PRPA...." Id. at 24.

Appellant insists that the Pennsylvania Supreme Court "has consistently held that performance evaluation by a review committee constitutes protected peer review." Id. at 17. Appellant asserts that Reginelli "did not question whether performance evaluation constitutes protected peer review, but only whether the performance review in that case was conducted by a qualified review committee." Id. Further, Reginelli "did not decide to revoke peer review protection afforded to performance evaluation by a credentialing committee." Id. at 18.

To the extent Reginelli discussed the credentialing review process, Appellant states that such discussion amounts to dicta . Id. at 23. Based upon the foregoing, Appellant argues that the trial court "erred as a matter of law in construing Reginelli as announcing a blanket rule stripping peer review protection from performance evaluations by a credentialing committee." Id. at 23-24. Appellant concludes that this Court must reverse the order granting Appellees' emergency motion to compel. Id. at 25.

"Where the issue is the proper interpretation of a statute, it poses a question of law; thus, our standard of review is de novo , and the scope of our review is plenary." Yocabet , 119 A.3d at 1019 (quotation marks and citations omitted).

The PRPA provides the following evidentiary privilege:

§ 425.4. Confidentiality of review organization's records

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 used 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 P.S. § 425.4 (emphasis added).

The PRPA also defines the following pertinent terms:

§ 425.2. Definitions

As used in this act:

"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.

* * *

"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

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