Reginelli v. Marcellus Boggs, M.D., Monongahela Valley Hosp., Inc., No. 20 WAP 2016

• Court: Pennsylvania Supreme Court
• Writing for the Court: JUSTICE DONOHUE
• Citation: 181 A.3d 293
• Parties: Eleanor REGINELLI and Orlando Reginelli v. Marcellus BOGGS, M.D., Monongahela Valley Hospital, Inc., and UPMC Emergency Medicine, Inc., d/b/a Emergency Resource Management, Inc. Appeal of: Monongahela Valley Hospital, Inc. Eleanor Reginelli and Orlando Reginelli v. Marcellus Boggs, M.D., Monongahela Valley Hospital, Inc., and UPMC Emergency Medicine, Inc., d/b/a Emergency Resource Management, Inc. Appeal of: UPMC Emergency Medicine, Inc. and Marcellus Boggs, M.D. Eleanor Reginelli and Orlando Reginelli v. Marcellus Boggs, M.D., Monongahela Valley Hospital, Inc., and UPMC Emergency Medicine, Inc., d/b/a Emergency Resource Management, Inc. Appeal of: Monongahela Valley Hospital, Inc. Eleanor Reginelli and Orlando Reginelli v. Marcellus Boggs, M.D., Monongahela Valley Hospital, Inc., and UPMC Emergency Medicine, Inc., d/b/a Emergency Resource Management, Inc. Appeal of: UPMC Emergency Medicine, Inc. and Marcellus Boggs, M.D.
• Decision Date: 27 March 2018
• Docket Number: No. 20 WAP 2016,No. 21 WAP 2016,No. 23 WAP 2016,No. 22 WAP 2016

181 A.3d 293

Eleanor REGINELLI and Orlando Reginelli
v.
Marcellus BOGGS, M.D., Monongahela Valley Hospital, Inc., and UPMC Emergency Medicine, Inc., d/b/a Emergency Resource Management, Inc.

Appeal of: Monongahela Valley Hospital, Inc.

Eleanor Reginelli and Orlando Reginelli
v.
Marcellus Boggs, M.D., Monongahela Valley Hospital, Inc., and UPMC Emergency Medicine, Inc., d/b/a Emergency Resource Management, Inc.

Appeal of: UPMC Emergency Medicine, Inc. and Marcellus Boggs, M.D.

Eleanor Reginelli and Orlando Reginelli
v.
Marcellus Boggs, M.D., Monongahela Valley Hospital, Inc., and UPMC Emergency Medicine, Inc., d/b/a Emergency Resource Management, Inc.

Appeal of: Monongahela Valley Hospital, Inc.

Eleanor Reginelli and Orlando Reginelli
v.
Marcellus Boggs, M.D., Monongahela Valley Hospital, Inc., and UPMC Emergency Medicine, Inc., d/b/a Emergency Resource Management, Inc.

Appeal of: UPMC Emergency Medicine, Inc. and Marcellus Boggs, M.D.

No. 20 WAP 2016
No. 22 WAP 2016
No. 21 WAP 2016
No. 23 WAP 2016

Supreme Court of Pennsylvania.

Argued: April 4, 2017
Decided: March 27, 2018

Gregory Buchwald Heller, Esq., Young Ricchiuti Caldwell & Heller, L.L.C., for Amicus Curiae, Pennsylvania Association for Justice.

Robert B. Hoffman, Esq., Eckert Seamans Cherin & Mellott, LLC, for Amicus Curiae, American Medical Association and Pennsylvania Medical Society.

William James Rogers, Esq., Thomson, Rhodes & Cowie, P.C., for Appellee/Appellant, Monongahela Valley Hospital, Inc.

Howard A. Chajson, Esq., John C. Conti, Esq., Justin Mark Gottwald, Esq., Dickie, McCamey & Chilcote, P.C., Megan Justine Block, Esq., for Appellee/Appellant, UPMC Emergency Medicine, Inc. and Marcellus Boggs.

Rudolph L. Massa, Esq., for Appellee, Eleanor Reginelli and Orlando Reginelli.

Douglas R. Nolin, Esq., Peacock, Keller, & Ecker, L.L.P., for Appellee, Monongahela Valley Hospital, Inc.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

181 A.3d 296

OPINION

JUSTICE DONOHUE

The Peer Review Protection Act, 63 P.S. §§ 425.1 – 425.4 ("PRPA"), provides a narrow evidentiary privilege to protect the "proceedings and documents of a review committee" conducting peer review activities by professional health care providers in conformity with its provisions. In this medical malpractice action, Monongahela Valley Hospital ("MVH") contracted with UPMC Emergency Medicine, Inc. ("ERMI") to provide staffing and administrative services for its emergency room. Both MVH and ERMI claim that the PRPA's statutory evidentiary privilege protects from disclosure the performance file of Marcellus Boggs, M.D. ("Dr. Boggs") that had been prepared and maintained by Brenda Walther, M.D. ("Dr. Walther"), who served as the director of MVH's emergency department and was Dr. Boggs' supervisor.¹ Dr. Boggs and Dr. Walther were employees of ERMI. Under the facts presented in this case and the applicable statutory language of the PRPA, neither ERMI nor MVH may claim the evidentiary privilege. ERMI is not a "professional health care provider" under the PRPA, and the performance file at issue here was not generated or maintained by MVH's peer review committee. We therefore affirm the decision of the Superior Court upholding the trial court's ruling that PRPA's evidentiary privilege has no application in this case.

In January 2011, Eleanor Reginelli was transported by ambulance to MVH's emergency department with what she reported at the time to be gastric discomfort. She was treated by Dr. Boggs. Mrs. Reginelli and her husband, Orlando Reginelli, allege that Dr. Boggs failed to diagnose an emergent, underlying heart problem and discharged her without proper treatment. Several days later, Mrs. Reginelli suffered a heart attack.

In 2012, the Reginellis filed an amended complaint containing four counts. Count I asserts a negligence claim against Dr. Boggs with respect to his treatment of Mrs. Reginelli. Count II is a claim for corporate negligence against MVH, alleging that it failed to hire appropriately trained staff, to oversee staff and to adopt adequate policies. Count III sets forth negligence claims against MVH and ERMI, contending that they are vicariously liable for the acts of their agents (ostensible and/or actual), employees and/or servants. Count IV asserts a claim for loss of consortium against all defendants. The defendants filed their respective answers and new matter. In the year that followed, the Reginellis deposed, inter alia, Dr. Boggs

181 A.3d 297

and Dr. Walther. At her deposition, Dr. Walther testified that she prepared and maintained a "performance file" on Dr. Boggs as part of her regular practice of reviewing randomly selected charts associated with patients treated by Dr. Boggs (and other ERMI-employed emergency department physicians). N.T., 2/5/2014, at 62–63.² In response, the Reginellis filed discovery requests directed to MVH³ requesting, among other things, "the complete ‘performance file’ for [Dr. Boggs] maintained by [Dr. Walther.]" MVH objected to production of the performance file, asserting that it was privileged by, inter alia, the PRPA.

On June 12, 2014, the Reginellis filed a motion to compel discovery directed to MVH, seeking production of Dr. Boggs' performance file. In its written reply to the motion to compel, MVH argued that "the requested items are created and used for the purpose of reviewing the services being rendered at [MVH's] emergency room and other departments and fall squarely under the protection of the [PRPA]." Reply to Plaintiffs' Motion to Compel, 6/19/2014, ¶ 14. In an accompanying brief in support, MVH further indicated that "it is difficult, if not impossible, to understand how these reports and files could not be seen as evaluating the quality and efficiency of services ordered or performed by health care providers." MVH's Brief in Opposition to Plaintiffs' Motion to Compel, 6/19/2014, at 6 (citing 63 P.S. § 425.2 ).

On August 29, 2014, the trial court granted the motion to compel, ordering that MVH produce Dr. Boggs' performance file to the Reginellis. In its order, the trial court stated that the "documentation shall remain confidential with Plaintiff's counsel, and shall not be copied or reproduced in any fashion, and in the event that [it] determines same is not relevant evidence in the case sub judice, same shall be returned to [MVH]." Order, 9/29/2014.

ERMI and Dr. Boggs⁴ , who had not previously participated in the above-described discovery proceedings, filed a motion for a protective order, asserting its entitlement to claim the evidentiary privilege under the PRPA for the peer review work performed by its employee, Dr. Walther. ERMI contended that Dr. Walther created and maintained the performance file solely "on behalf of [ERMI]." Motion for Protective Order, 9/22/2014, ¶ 21. ERMI explained that while MVH has a peer review committee, Dr. Walther's work was "separate ‘outside’ peer review [ ] conducted by [ERMI]." Id. Moreover, contrary to the Reginellis' repeated claims that any privilege claim had been waived when ERMI provided Dr. Boggs' performance file to MVH, ERMI insisted that the performance had at all times remained in Dr. Walther's sole possession. Id., ¶ 16 ("The file at issue in the present matter was maintained solely by Dr. Walther as part of her review and evaluation of Dr. Boggs' performance."). Because the performance file had not been shared with MVH, ERMI argued that it had no relevance in this case because, first, Dr. Walther had not selected Mrs. Reginelli's file for review; and second, no claim for corporate negligence had been asserted against ERMI, and since Dr. Boggs' performance

181 A.3d 298

file constituted a review of the work of an ERMI employee, it was irrelevant to the claim of corporate negligence asserted against MVH. Id., ¶ 22.

MVH filed a motion for reconsideration of August 29, 2014 order. Contrary to ERMI's claim that Dr. Walther created and maintained performance files "on behalf of ERMI," MVH posited that Dr. Walther's peer review work of the performance of emergency department physicians was performed "on behalf of both ERMI and MVH." Motion for Reconsidertion, 9/22/2014, ¶ 11. Similar to its initial arguments in opposition to the motion to compel, MVH argued that Dr. Walther's performance reviews were "for the evaluation of the quality and efficiency of health care services, ensuring compliance with laws and regulations and evaluating and improving the quality of health care rendered by emergency department physicians, as set forth in the PRPA." Id., ¶ 21. MVH also offered to produce Dr. Boggs' performance file to the trial court for in camera review "in order to satisfy this [h]onorable [c]ourt of the applicability of the PRPA and its prohibitions of disclosure of such information to that file at issue." Id., ¶ 22.

Before the trial court could rule on either ERMI's motion for protective order and MVH's motion for reconsideration, both entities appealed the trial court's August 29, 2014 order to the Superior Court. In an order dated September 26, 2014, the trial court granted MVH's motion to include Dr. Boggs' performance file in the judicial record under seal and to retain it under seal during the pendency of the action. In the trial court's written opinion pursuant to Rule...