Troescher v. Grody

Decision Date24 February 2005
Citation869 A.2d 1014
PartiesElizabeth TROESCHER and Jude Muoio, Appellees, v. Marvin GRODY, M.D., Temple University Hospital, Temple University Health System, Temple OB/GYN Associates, Temple University Center for Pelvic Reconstruction, Urogynecology and Vaginal Surgery, Appellants.
CourtPennsylvania Superior Court

Lucia B. Morrone, Philadelphia, for appellants.

Slade H. McLaughlin, Philadelphia, for appellees.



¶ 1 Appellant health care providers appeal from the order dated January 8, 2004, requiring them to turn over certain documents in discovery. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 This is a medical malpractice action brought by plaintiffs/appellees Elizabeth Troescher and her husband, Jude Muoio.1 Troescher claimed that Appellant Dr. Marvin Grody performed a negligent surgery on Troescher and failed to obtain her informed consent. Troescher also alleged corporate negligence on the part of Appellants Temple University Hospital, Temple University Health System, Temple OB/GYN Associates, and Temple University Center for Pelvic Reconstruction, Urogynecology and Vaginal Surgery.

¶ 3 During discovery, Troescher sought Dr. Grody's personnel and credentials file. Appellants moved for a protective order. Appellants claimed that these documents were privileged and immune from discovery under the federal Health Care Quality Improvement Act (HCQIA),2 and the Pennsylvania Peer Review Protection Act (PRPA).3 On January 8, 2004, the trial court denied this motion in part. The court ordered Appellants to disclose some of those documents within 10 days.4 The court denied Appellants' motion for reconsideration on January 23, 2004. This appeal followed.5

¶ 4 Appellants raise the following issues on appeal:

1. Whether the lower court erred in finding that the following documents contained in the credentials file of Marvin H.T. Grody, M.D. were discoverable:
a. Documents created by the National Practitioner Data Bank and deemed confidential by the Health Care Quality Improvement Act, 42 U.S.C.A. § 11137, et seq. and 45 C.FR. 60.13; and
b. Documents deemed confidential by the Pennsylvania Peer Review Protection Act, 63 P.S. § 425.1, et seq.

Appellants' Brief at 3.6

¶ 5 Preliminarily, we must address Troescher's motion to quash. Specifically, we must determine whether the trial court's order is a collateral order under Pa.R.A.P. 313(b).

¶ 6 Collateral orders are appealable as of right. Pa.R.A.P. 313(a); J.S. v. Whetzel, 860 A.2d 1112, 1116 (Pa.Super.2004). Rule 313(b) defines a collateral order 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." Id. To satisfy the doctrine, all three factors must be present. Id. at 1117.

¶ 7 In the instant case, it is possible to analyze Appellants' claims of privilege without analyzing the underlying causes of action for malpractice and corporate negligence. This is true even though the documents at issue could shed light on the underlying negligence actions. Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547, 551-552 (1999) (Bureau of Professional and Occupational Affairs' claims of privilege with respect to its investigative file were analytically separate from the underlying claim of dental malpractice). Thus, the order meets the first prong of the test. Id.; see also, Hoffman v. Knight, 823 A.2d 202, 206 (Pa.Super.2003) (deliberative process privilege is separable from underlying cause of action for legal malpractice and breach of contract).

¶ 8 We now turn to the "importance" prong. Our Supreme Court has explained that this prong is satisfied "if the interests that would potentially go unprotected without immediate appellate review of that issue are significant relative to the efficiency interests sought to be advanced by adherence to the final judgment rule." Ben, 729 A.2d at 552. In Ben, the Bureau of Professional and Occupational Affairs claimed that executive and statutory privileges were necessary to ensure the effective enforcement of state licensing laws. Specifically, the Bureau argued that without these protections in place, witnesses would be reluctant to disclose information out of fear that it could be divulged in a separate lawsuit. Id. Our Supreme Court held that these claims of privilege were rooted in public policy, and were sufficiently important to justify immediate appellate review. Id.; see also, J.S., 860 A.2d at 1117 (privacy interest in personal income information is sufficiently important); Hoffman, 823 A.2d at 207 (deliberative process privilege is sufficiently important).

¶ 9 In the instant case, Appellants assert that the documents at issue are confidential and protected from disclosure under federal and state law. The public policy implications of this claim are clear. "The HCQIA was created by the United States Congress in order to improve the quality of medical care by encouraging physicians to identify and discipline other physicians who are incompetent or who engage in unprofessional behavior." Manzetti v. Mercy Hosp. of Pittsburgh, 565 Pa. 471, 776 A.2d 938, 945 (2001) (citation omitted). This delicate but necessary process may involve analyzing sensitive and personal information about physicians. In order to encourage candor, and to protect individuals and organizations involved in this process, Congress declared that certain information used in this process shall remain confidential. 42 U.S.C. § 11137(b).

¶ 10 The Pennsylvania Legislature built a similar protection into the PRPA. 63 P.S. § 425.4; Young v. Western Pa. Hosp., 722 A.2d 153, 156 (Pa.Super.1998) ("the need for confidentiality in the peer review process stems from the need for comprehensive, honest, and sometimes critical evaluations of medical providers by their peers in the profession."). We conclude that these claims of confidentiality are rooted in public policy and are sufficiently important to justify immediate appellate review. Ben; J.S.; Hoffman.

¶ 11 Finally, we turn to the "irreparable loss" prong. Our Supreme Court has held that "there is no effective means of reviewing after a final judgment an order requiring the production of putatively protected material." Ben, 729 A.2d at 552 (citation omitted). Here, since the material sought is of a confidential nature, "irreparable loss" is demonstrated as there is no effective means of reviewing after final judgment an order requiring the production of this allegedly protected material.

¶ 12 For these reasons, we conclude that the January 8, 2004 order is collateral and appealable as of right under Pa.R.A.P. 313.7 We therefore deny Troescher's motion to quash. We turn now to the merits of whether the requested documents are discoverable.8

¶ 13 Because this issue is one of statutory interpretation, we must determine whether the trial court committed an error of law. Zane v. Friends Hosp., 575 Pa. 236, 836 A.2d 25, 30 n. 8 (2003). Our standard of review is de novo. Id. When interpreting statutes, our goal is to effectuate the intention of the legislature. Id. at 30. We do so primarily by looking to the plain language of the statute. Id. If the language of the statute is clear and unambiguous, we will not disregard it under the pretext of pursuing its spirit. Id.

¶ 14 First, Appellants argue that certain documents in their files were created by the National Practitioner Data Bank ("Data Bank"). Appellants argue that this information is immune from discovery under Data Bank regulations, and under the federal statute which created the Data Bank.

¶ 15 We will begin with a general background discussion. In 1986, the HCQIA authorized the Department of Health and Human Services to create a national repository for information which is used in the peer review process. 42 U.S.C. § 11134(b). In response, the Department of Health and Human Services created the Data Bank. The Data Bank is governed by federal regulations, set forth at 45 C.F.R. § 60.1 et seq.

¶ 16 The Data Bank collects data on physicians from a variety of sources. This data includes sensitive information such as: (1) whether an insurance company has made payments to satisfy a medical malpractice claim against a physician; (2) whether a state board has revoked or suspended a physician's license based on unprofessional conduct; and (3) whether a hospital has revoked or suspended a physician's clinical privileges. 45 C.F.R. §§ 60.7-60.9.

¶ 17 A hospital must access Data Bank information whenever a physician applies for privileges at that hospital. 45 C.F.R. § 60.10(a)(1). Moreover, a hospital must access this information every two years after granting such privileges. 45 C.F.R. § 60.10(a)(2). If a hospital fails to access the Data Bank, it is presumed to have knowledge of the information therein. 45 C.F.R. § 60.10(b).

¶ 18 The Data Bank regulations contain a confidentiality clause, as follows:

§ 60.13 Confidentiality of National Practitioner Data Bank information.
(a) Limitations on disclosure. Information reported to the Data Bank is considered confidential and shall not be disclosed outside the Department of Health and Human Services, except as specified in § 60.10,9 § 60.1110 and § 60.14.11 Persons and entities which receive information from the Data Bank either directly or from another party must use it solely with respect to the purpose for which it was provided. Nothing in this paragraph shall prevent the disclosure of information by a party which is authorized under applicable State law to make such disclosures.
(b) Penalty for violations. Any person who violates paragraph (a) shall be subject to a civil money penalty of up to $10,000 for each violation. This penalty will be imposed pursuant to procedures

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