Young v. Western Pennsylvania Hosp.

Decision Date16 November 1998
Citation722 A.2d 153
PartiesJoyce YOUNG, Appellant, v. The WESTERN PENNSYLVANIA HOSPITAL and Richard Liposky, D.M.D., Appellees.
CourtPennsylvania Superior Court

Daniel W. Ernsberger, Pittsburgh, for appellant.

Richard S. Dorfzaun, Pittsburgh, for appellees.

Before EAKIN, SCHILLER and OLSZEWSKI, JJ.

OLSZEWSKI, J.:

This is an appeal of an order denying appellant's motion for post-trial relief stemming from a discovery order granting appellee's motion to quash a subpoena and for a protective order. Appellant alleges that the trial court erred in denying post-trial relief based on the trial court's alleged error in the interpretation and application of the Peer Review Protection Act. 63 P.S. §§ 425.1-425.4. For the reasons set forth below, we affirm the decision of the trial court denying appellant's motion for post-trial relief.

In 1982, appellant underwent oral surgery performed by Richard Liposky, D.M.D. In 1990, the manufacturer of proplast implants informed Dr. Liposky's office that such implants posed potential problems to patients. As a result, Dr. Liposky's staff undertook the task of informing all former patients who either actually had or might have had the proplast implant inserted of the potential problems. During the course of informing these patients, Dr. Liposky's office sent a letter to appellant informing her of the potential problems caused by the implants inserted during her 1982 oral surgery.

Because of this letter, appellant consulted Gary Patterson, D.M.D. about her situation. In 1991, Dr. Patterson performed surgery to remove the implants, but allegedly discovered during the surgery that she never actually received implants.1 Based on Dr. Patterson's surgical discovery, appellant brought this cause of action against Dr. Liposky alleging that the 1990 letter from his office constituted negligent misrepresentation.

In addition, appellant also brought suit against The Western Pennsylvania Hospital ("appellee") based on corporate negligence.2 Appellant alleges that appellee was negligent in granting Dr. Liposky staff privileges at the hospital based on his application and faulty record-keeping.

During the course of pre-trial discovery, appellant noticed appellee for a corporate deposition and requested that appellee produce "all documents, records and information submitted for purposes of reviewing his staff privileges." Appellant's notice of corporate deposition: The Western Pennsylvania Hospital (contained in certified record). Appellant also subpoenaed the Medical Center of Beaver County, PA, as a corporate deponent and demanded "[a]ll documents relating to Dr. Liposky's request for staff privileges and determination of his staff privileges." Subpoena to Corporate Deponent, Medical Center of Beaver County, PA (contained in certified record). Appellee and the Medical Center of Beaver independently moved to quash the subpoena and to obtain a protective order; the trial court granted both motions on September 24, 1996.

Appellant's case proceeded to a jury trial on November 20, 1997. Following the presentation of appellant's case, appellee moved for nonsuit. The trial court granted appellee's motion. Specifically, Judge Joseph James stated:

We find that ... — one of the burdens of proof is to establish the standard that the hospital had an expert — that you needed to have an expert to establish that the hospital breached its duty. I find none. The question says: Documentation previously supplied. It says it's to be attached. He said he previously supplied it. I can find no breach on the part of the hospital in this case.

Furthermore, I find that there is no expert as to causation. There is no one who can testify that as a result of his negligent misrepresentation, if we assume that it was, that is any way that that caused the harm. There is no testimony in the record — and the record is silent as to what steps Dr. Patterson took before he conducted surgery, any records that were received. The record is silent as to all the things that Patterson could have done or may have done....

All these things are so ripe for speculation, that a jury of 12 lay people cannot make a decision based on the status of the record. Therefore, the Western Pennsylvania Hospital motion for nonsuit is granted.

R. at 151-52. At the same time, the case against Dr. Liposky was dismissed due to Dr. Liposky's bankruptcy.

Appellant filed a post-trial motion alleging error based on the trial court's granting of appellee's motion to quash a subpoena and for a protective order, and requesting production of the demanded materials and a new trial. On November 7, 1997, Judge McGowan denied appellant's motion for a new trial. This timely appeal follows.

Appellant sets forth only one question for our review: "Is discovery of original documents under the Peer Review Protection Act limited to the first document and not all original documentation?" Appellant's brief at 6. While we find appellant's question presented interesting, it does not address appellant's real issue in this case. Appellant alleges that the lower court committed reversible error when it precluded appellant from requesting or taking testimony relating to "Dr. Liposky's application for and termination of staff privileges, except, Dr. Liposky's application for staff privileges and testimony relating to that document." R. at 50.1. Nothing contained in the record supports appellant's presumption that the court decided to preclude other "original documentation" or found that Dr. Liposky's application was the "first document."

In order to review the appeal before us, we must first understand the relief requested. Appellant's brief apparently argues for a new trial based solely on the alleged reversible error by the lower court in granting appellee's motion for a protective order. Appellant argues that without those properly demanded records, there was no use in attempting to hire an expert witness to testify at the time of trial and this lack of an expert witness was the sole ground for Judge James' ruling for nonsuit. The record does not support appellant's contention. As appellee points out, Judge James based his ruling for nonsuit on multiple grounds. While appellant's failure to provide expert testimony establishing the hospital's duty was one of the grounds for the nonsuit, it was not the only ground.

In its decision the court below noted that appellant failed to provide any evidence proving that appellee's alleged breach of duty in granting staff privileges to Dr. Liposky in any way caused appellant's injuries. While appellant argues that she could not hire an expert to establish the duty, she does not explain how the protective order prevented her from presenting expert testimony as to causation. Thus, regardless of the lower court's decision to grant a protective order precluding discovery of all documents, records, and other material pertaining to Dr. Liposky's application for or determination of staff privileges, Judge James' order granting appellee's motion for nonsuit would remain affirmed.

At the same time, we feel that this case demonstrates the need to clarify the application of the term "original document" under the Peer Review Protection Act. 63 P.S. § 425.4. Section 4 of the Peer Review Protection Act, pertaining to the confidentiality of review organization records, states:

The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery ... in any civil action against a professional health care provider arising out of the matter 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,
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    ...n.15.25 Id .26 Id . (citing Burke v. Independence Blue Cross , 628 Pa. 147, 103 A.3d 1267, 1274 (2014) ).27 Cf. Young v. W. Pa. Hosp. , 722 A.2d 153, 156 (Pa. Super. 1998) ("Courts throughout this state have been cautious and wary in their interpretation of the language of the [PRPA], prefe......
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