J-A06009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PATRICIA HARTLEY, AS                            IN THE SUPERIOR COURT
    ADMINISTRATRIX OF THE ESTATE OF                    OF PENNSYLVANIA
    HEATHER TILLETTE, DECEASED

                             Appellee

                        v.

    EINSTEIN MEDICAL CENTER
    MONTGOMERY AND EINSTEIN
    HEALTHCARE NETWORK

                             Appellants                 No. 135 EDA 2019


               Appeal from the Order Entered November 29, 2018
              In the Court of Common Pleas of Montgomery County
                        Civil Division at No.: 2017-03929


BEFORE: STABILE, KING, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                                FILED MAY 28, 2020

        Appellants Einstein Medical Center Montgomery and Einstein Healthcare

Network appeal from the November 29, 2018 discovery order entered in the

Court of Common Pleas of Montgomery County (“trial court”). Upon review,

we quash this appeal.

        The facts and procedural history of this case are undisputed.1 Following

the death of Heather Tillette, Appellee Patricia Hartley, the decedent’s mother

and administratrix of her estate, filed a civil action against Appellants, alleging

causes of action for negligence and wrongful death and survival. Appellee
____________________________________________


*   Former Justice specially assigned to the Superior Court.
1Unless otherwise noted, these facts are taken from the trial court’s April 30,
2019 opinion. See Trial Court’s Opinion, 4/30/19 1-3.
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alleged that, on February 26, 2015, the decedent went to the emergency room

at Einstein Medical Center Montgomery, allegedly complaining of “migraine

headaches, vomiting and seeing flickering lights.” Complaint, 2/27/17, at ¶

4. The treating providers allegedly documented that the decedent had a past

medical history “which included ADHD, dizziness, generalized anxiety

disorder, and confirmed abuse, neglect and exploitation.” Id. at ¶ 5. It also

was documented that the decedent’s mother “had telephoned the hospital and

reported that [the decedent] had a prescription for 90 Adderall tablets but

only had 10 tablets left in the bottle.” Id. at ¶ 7. One of the treating providers

allegedly documented that the decedent had “tangential thought processes

and flight of ideas.” Id. at ¶ 10. The decedent allegedly had “a tachycardic,

rapid pulse rate of 120 beats per minute.” Id. The decedent allegedly was in

the emergency room from approximately 6:26 p.m. to 8:40 p.m., when she

absconded. The decedent subsequently was reported missing and found on

March 22, 2015 in an open field approximately one mile from the Einstein

Medical Center Montgomery. When the decedent was found, she allegedly

still was wearing her hospital gown and hospital bracelet from her February

26, 2015 visit.

      Appellee served on Appellants a request for production of documents.

Request number 26 (“Request 26”) provided: “For the period of January 1,

2006 to the present, please provide a copy of any and all Reportable Events,

Optionally    Reportable    Events,    Incident    Reports,    memoranda       or

correspondence prepared by [Appellants] or [Appellants’] agents which

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involve or concern any patient eloping from Einstein Medical Center

Montgomery.” Appellants responded: “Objection. The foregoing request is

overly broad, unduly vague, would require the making of an unreasonable

investigation, is not reasonably calculated to lead to the discovery of

admissible information and calls for information that is protected by, inter alia,

HIPAA.[2]”

       Appellee filed a motion to compel. Appellants objected.       Following a

hearing before a discovery master, the trial court, on August 1, 2018, issued

an order, directing, inter alia:

       [Appellants] shall not be required at this time to produce
       documents responsive to Request for Production No. 26
       requesting documentation of elopement of other patients than
       [Appellee’s] decedent. The request is overly broad in that it seeks
       documentation of incidents long before the current building from
       which [Appellee’s] decedent eloped was opened. [Appellee] may
       file a motion to compel a response to [Request 26] limited in time
       from the date of opening of the current hospital building through
       the date of [the decedent’s] elopement. [Appellants] shall either
       produce any such documents or file an appropriate privilege log
       identifying documents that exist and the reason for any claimed
       protection.

Trial Court Order, 8/1/18, at ¶ 5.3
____________________________________________


2Health Insurance Portability and Accountability Act of 1996, Pub. L. 104–
191, 110 Stat. 1936 (1996).
3 Appellants sought reconsideration of the August 1, 2018, which the trial
court granted. As a result, the trial court amended the August 1, 2018 order
with respect to an issue not presently before us. Specifically, the trial court
amended only paragraph 2 of the August 1 order insofar as Appellants “only
need to produce a copy of the Index of its Policy, Procedure or Protocol Manual
in place for the Emergency Room at its facility as of calendar year 2015, in
response to paragraph number 23 of [Appellee’s] request for production of
documents.”       Trial Court Order, 8/24/18 (unnecessary capitalizations
omitted). The remaining directives in the August 1, 2018 order remained in
full force and effect.

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      On September 20, 2018, in accord with the trial court’s August 1, 2018

order, Appellee filed a motion to compel a response to Request 26, which

Appellee had limited in time from the date of the opening of the current

hospital building on September 29, 2012 through the date of the decedent’s

elopement on February 26, 2015.          Appellants objected to Request 26.

Following a hearing before a discovery master, the trial court issued an order

on November 29, 2018 granting Appellee’s motion to compel responses to,

among other things, Request 26. The trial court ordered:

      With regard to [Request 26], [Appellants] shall either (i) produce
      any such documents for the time period between the opening of
      [Appellant] Einstein Medical Center Montgomery on September
      29, 2012 and the date of the incident on February 26, 2015 or
      issue an appropriate privilege log identifying documents that exist
      and the reason for any claimed protection. [Appellants] are
      directed to redact responsive documents to remove identifying
      information consistent with 45 C.F.R. 164.514(b)(2) of [HIPAA],
      as amended.

Trial Court Order, 11/29/18, at ¶ 2 (unnecessary capitalization omitted)

(emphasis added).

      Appellants appealed to this Court. The trial court directed Appellants to

file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

Appellants complied, raising twenty-one assertions of error spanning five

pages.   In response, the trial court issued a Pa.R.A.P. 1925(a) opinion,

concluding that Appellants do not merit relief as their appeal is interlocutory.

      On appeal, Appellants present three issues for our review:

      [I.] Is the [t]rial [c]ourt’s November 29, 2018 [o]rder a collateral
      order subject to immediate appellate review where (a) the
      discovery issues within the [o]rder can be addressed without an
      analysis of the underlying claims, (b) Pennsylvania law treats
      medical records and related information as highly protected,

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      privileged, and confidential information, the disclosure of which
      involves rights deeply rooted in public policy, and (c) [Appellants’]
      claim would be irreparably lost because once the materials are
      divulged, the disclosure cannot be undone?

      [II.] Did the trial court err when it ordered the production of
      medical records related to patients not at issue in this litigation
      when such records are simultaneously protected from disclosure
      by numerous statutes and public policy considerations, yet
      irrelevant to the underlying claims at issue?

      [III.] Were any arguments “waived” when they were raised both
      in written response, at argument generally, and in Appellants’
      1925(b) statement?

Appellants’ Brief at 4-5.

      “The purpose of the discovery rules is to prevent surprise and unfairness

and to allow a fair trial on the          merits.”    Linker v. Churnetski

Transportation, Inc., 520 A.2d 502, 503 (Pa. Super. 1987), appeal denied,

533 A.2d 713 (Pa. 1987).       “Generally, discovery is liberally allowed with

respect to any matter, not privileged, which is relevant to the cause being

tried.” McIlmail v. Archdiocese of Philadelphia, 189 A.3d 1100, 1106 (Pa.

Super. 2018) (citations omitted); see Pa.R.C.P. No. 4003.1(a) (“a party may

obtain discovery regarding any matter, not privileged, which is relevant to the

subject matter involved in the pending action[.]”).        “[I]n reviewing the

propriety of a discovery order, our standard of review is whether the trial court

committed an abuse of discretion.” Sabol v. Allied Glove Corp., 37 A.3d

1198, 1200 (Pa. Super. 2011). An “[a]buse of discretion occurs if the trial

court renders a judgment that is manifestly unreasonable, arbitrary or

capricious; that fails to apply the law; or that is motivated by partiality,




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prejudice, bias or ill-will.” Hutchinson v. Penske Truck Leasing Co., 876

A.2d 978, 984 (Pa. Super. 2005), aff’d, 922 A.2d 890 (Pa. 2007).

      Preliminarily, before we address the merits, we must determine whether

we have jurisdiction over Appellants’ appeal. Appellants assert that the trial

court’s November 29, 2018 order is a collateral order under Pa.R.A.P. 313(a)

and, as a result, this appeal is proper. Appellee and the trial court, however,

urge us to quash this appeal because the November 29, 2018 does not require

Appellants to disclose privileged information. We agree.

      As we have stated:

      “[I]n general, discovery orders are not final, and are therefore
      unappealable.” Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super.
      2004). However, “discovery orders involving privileged material
      are nevertheless appealable as collateral to the principal action”
      pursuant to Pa.R.A.P. 313 (“Collateral Orders”). Id. Rule 313(a)
      states that “[a]n appeal may be taken as of right from a collateral
      order of [a] ... lower court.” Pa.R.A.P. 313(a).

            A collateral order is 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.

      Pa.R.A.P. 313(b) (emphasis added).           “A discovery order is
      collateral only when it is separate and distinct from the underlying
      cause of action.” Feldman v. Ide, 915 A.2d 1208, 1211 (Pa.
      Super. 2007).

      As this Court explained recently:

            Prior to the decision of the Pennsylvania Supreme
            Court in Ben v. Schwartz, 729 A.2d 547 (Pa. 1999),
            Pennsylvania courts did not often entertain
            interlocutory appeals from discovery orders, unless
            the discovery order was not related in any way to the
            merits of the action itself. . . . In Schwartz, the
            Pennsylvania Supreme Court revised this rule and
            held that an appeal from a discovery order raising a
            question of the application of a privilege is separable
            from the underlying issue, so long as the issue of

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            privilege may be addressed by an appellate court
            without analysis of the underlying issue. [Id.] at 551–
            52.

      Castellani v. Scranton Times, L.P., 916 A.2d 648, 652 (Pa.
      Super. 2007).

T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056–57 (Pa. Super. 2008).

      Instantly, consistent with the collateral order doctrine, Appellants’ claim

of privilege would not be irreparably lost if immediate appellate review is not

granted at this juncture. As detailed above, the trial court’s November 29,

2018 order does not require disclosure of privileged information. The order

merely directs Appellants to either produce the requested documents or

provide a privilege log identifying existing documents and their claimed

protection in response to Request 26. Thus, Appellants’ concern that, once

privileged information is divulged, the disclosure of documents cannot be

undone is premature. As a result, Appellants cannot avail themselves of the

collateral order doctrine as a basis for our jurisdiction to appeal from the

November 29 discovery order, which is not final, and therefore unappealable.

See Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1016 n.1 (Pa. Super.

2015) (applying collateral order doctrine under Rule 313 to discovery orders

compelling production of materials purportedly subject to a privilege).

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/20




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