J-A12027-19

                             2020 PA Super 36

 JAMES E. LEADBITTER AND TAMMY           :   IN THE SUPERIOR COURT OF
 M. LEADBITTER, HIS WIFE                 :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 KEYSTONE ANSETHESIA                     :
 CONSULTANTS, LTD., A                    :   No. 1414 WDA 2018
 CORPORATION, CHRISTOPHER                :
 MERCK, D.O., AJOY KATARI, M.D.,         :
 JOHN P. WELDON, M.D. AND ST.            :
 CLAIR HOSPITAL                          :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 CARMEN PETRAGLIA, M.D. AND              :
 SOUTH HILLS ORTHOPAEDIC                 :
 SURGERY ASSOCIATES, A                   :
 CORPORATION                             :
                                         :
                                         :
 APPEAL OF: ST. CLAIR HOSPITAL           :

             Appeal from the Order Entered September 17, 2018
     In the Court of Common Pleas of Allegheny County Civil Division at
                         No(s): G.D. No. 16-10700


BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                           FILED FEBRUARY 12, 2020

      Appellant, St. Clair Hospital, appeals from the September 17, 2018

Order granting Appellees’, James E. and Tammy M. Leadbitter’s, Motion to

Compel and directing Appellant to produce the unredacted credentialing file of

defendant, Carmen Petraglia, M.D. After careful review, we affirm.
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       The relevant facts and procedural history are as follows. On June 24,

2014, Dr. Carmen Petraglia, a physician in private practice, applied for an

appointment to the medical staff at St. Clair Hospital. On July 28, 2014, Dr.

Petraglia applied for orthopedic surgery clinical privileges at St. Clair Hospital.

In considering Dr. Petraglia’s applications, the hospital’s credentialing

committee reviewed numerous documents, including the following, which are

at issue in this appeal:

       1. Professional opinions relating to Dr. Petraglia’s competence;

       2. Professional Peer Review Reference and Competency
       Evaluation, which contains evaluations of Dr. Petraglia’s
       performance and prepared by other physicians;

       3. Ongoing Professional Practice Evaluation of St. Clair Hospital
       Summary Report, which contains performance-related data that
       St. Clair Hospital compiled; and

       4. Responses to St. Clair inquiries to the National Practitioner Data
       Bank (“NPDB”).1

       The credentialing committee recommended that St. Clair Hospital grant

clinical privileges to Dr. Petraglia in the Department of Surgery, Section of



____________________________________________


1 The NPDB is a “web-based repository of reports containing information on
medical malpractice payments and certain adverse actions related to health
care practitioners, providers, and suppliers.” About US, National Practitioner
Data Bank, https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp (last
visited February 4, 2020). Congress established the NPDB as a “tool that
prevents practitioners from moving state to state without disclosure of
discovery of previous damaging performance.” Id.



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Orthopedic Surgery.2        On September 8, 2014, Dr. Petraglia accepted the

appointment.

       On November 13, 2014, Dr. Petraglia examined Appellee James

Leadbitter at Dr. Petraglia’s medical office and recommended spinal surgery.

On January 14, and January 15, 2015, Dr. Petraglia performed two spinal

surgeries on Mr. Leadbitter at St. Clair Hospital. Following the surgeries, Mr.

Leadbitter suffered a series of strokes, resulting in permanent brain damage,

cortical blindness, motor weakness, and impairment of his extremities, which

Appellees alleged the negligence of St. Clair Hospital and the other defendants

caused.

       On January 11, 2017, Appellees filed an Amended Complaint raising

claims of negligence and loss of consortium against all defendants, including

St. Clair Hospital, and vicarious liability and corporate negligence against St.

____________________________________________


2  “Credentialing is the process by which insurance networks, healthcare
organizations, and hospitals obtain and evaluate documentation regarding a
medical provider’s education, training, work history, licensure, regulatory
compliance record, and malpractice history before allowing that provider to
participate in a network or treat patients at a hospital or medical facility.” The
Importance       of   Medical    Professional   Credentialing,    verywellhealth,
https://www.verywellhealth.com/importance-of-professional-credentialing-
2317550 (last visited February 4, 2020).            “The companion piece to
credentialing is ‘privileging,’ which is the process of authorizing a licensed or
certified healthcare practitioner’s specific scope of patient care services.
Privileging is performed in conjunction with an evaluation of an individual’s
clinical qualifications and/or performance.” Credentialing and Privileging:
Medical Protective Clinical Risk Management Department, Medical Protective,
https://www.medpro.com/documents/10502/359074/Credentialing+and+Pri
vileging.pdf (last visited February 4, 2020).



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Clair Hospital.3    That same day, Appellees also filed a separate negligence

action against Dr. Petraglia and South Hills Orthopaedic Surgery Associates,

P.C. On January 27, 2017, the trial court consolidated the two actions.

        On March 22, 2017, Appellees served upon St. Clair Hospital a First Set

of Interrogatories and Request for Production of Documents seeking, inter

alia, “the complete credentialing and/or privileging file for [] Petraglia.”

Motion to Compel, 8/29/19,4 at ¶¶ 4-5.           St. Clair Hospital responded to

Appellees’ Request for Production of Documents by producing only those

documents that it determined were discoverable portions of Dr. Petraglia’s

credentialing file and removing or redacting portions it claimed were

privileged.

        Following an additional request for production of documents,5 St. Clair

Hospital produced another tranche of documents. St. Clair Hospital continued

to assert, however, that some portions of Dr. Petraglia’s credentialing file were

privileged and, thus, refused to produce the file in full.

        On August 29, 2018, Appellees filed a Motion to Compel production of

Dr. Petraglia’s unredacted credentialing file, in which it asserted that, pursuant

____________________________________________


3 On January 27, 2017, St. Clair Hospital and the co-defendants filed a
Complaint to Join Dr. Petraglia and South Hills Orthopaedic Surgery
Associates, P.C. as additional defendants.

4   The trial court docketed the Motion to Compel on September 18, 2018.

5 Appellees requested supplemental discovery responses from St. Clair
Hospital following the Pennsylvania Supreme Court’s decision in Reginelli v.
Boggs, 181 A.3d 293 (Pa. 2018), which we discuss infra.

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to the Pennsylvania Supreme Court’s decision in Reginelli v. Boggs, 181

A.3d 293 (Pa. 2018), they were entitled to the complete, unredacted file. On

September 10, 2017, St. Clair Hospital filed a response to the Motion, claiming

that the Peer Review Protection Act (“PRPA”), 63 P.S. § 425.1, et seq., and

the Healthcare Quality Improvement Act (“HQIA”), 42 U.S.C. § 11101, et seq.,

shielded them from producing the requested documents.

       On September 13, 2018, the trial court held a hearing on Appellees’

Motion after which, relying exclusively on Reginelli, supra, it granted the

Motion to Compel and ordered St. Clair Hospital to produce Dr. Petraglia’s

unredacted credentialing file. This timely appeal followed. 6 Both Appellant

and the trial court have complied with Pa.R.A.P. 1925.

       St. Clair Hospital raises the following two issues on appeal:

       1. Whether the [t]rial [c]ourt erred and/or abused its discretion
          in granting [Appellees’] Motion to Compel and compelling
          production of professional opinions and performance
          evaluations relating to [] Petraglia’s competence and an
          Ongoing Professional Practice Evaluation of [Appellant], which
          are protected from disclosure pursuant to the [PRPA]?
____________________________________________


6 “[M]ost discovery orders are deemed interlocutory and not immediately
appealable because they do not dispose of the litigation.” Veloric v. Doe,
123 A.3d 781, 784 (Pa. Super. 2015) (quotation marks and citation omitted).
Nevertheless, “[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). “When a party is ordered to produce
materials purportedly subject to a privilege, we have jurisdiction under
Pa.R.A.P. 313 . . . .” Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1016
n.1 (Pa. Super. 2015) (citation omitted).

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J-A12027-19


      2. Whether the [t]rial [c]ourt erred and/or abused its discretion
         in granting [Appellees’] Motion to Compel and compelling
         production of responses to statutorily-required inquiries of the
         National Practitioner Data Bank on the part of [Appellant] which
         are protected from disclosure by federal law, 42 U.S.C. §
         11137(b)(1) and 45 C.F.R. § 60.20(a)?

      Appellant’s Brief at 5.

      In its first issue, St. Clair Hospital argues that the trial court erred in not

finding that PRPA protected the disclosure of the professional opinions and

performance evaluations of Dr. Petraglia that the credentialing committee

obtained from other physicians and reviewed before granting hospital

privileges to Dr. Petraglia. St. Clair Hospital argues that because these are

peer review documents, PRPA precludes their disclosure.

      In order to evaluate the argument of St. Clair Hospital, we must analyze

the language of PRPA.           We start with general principles of statutory

construction. “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 v. UPMC Presbyterian, 119 A.3d.

1012, 1019 (Pa. Super. 2015) (quotation marks and citations omitted). We

also note that the courts generally disfavor evidentiary privileges. Reginellli,

181 A.3d at 300.

      We now turn to the language of PRPA and begin by considering its

definition of “peer review.” PRPA defines “peer review” as “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

. . . .” Id. (citing 63 P.S. § 425.2). In this case, St. Clair Hospital seeks to

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J-A12027-19



use the PRPA privilege to prevent disclosure of professional evaluations that

its credentialing committee considered before granting Dr. Petraglia surgery

privileges at St. Clair Hospital. We find that since “professional health care

providers”—other physicians—prepared those documents and the documents

evaluated the “quality and efficiency of services ordered or performed” by Dr.

Petraglia, the documents meet the statutory definition of “peer review”

documents. The analysis, however, does not end there. We must also analyze

PRPA in light of the Supreme Court’s holding in Reginelli.

      The Supreme Court in Reginelli interpreted the application of the

privilege that PRPA sets forth in terms of, inter alia, the entity that holds the

peer review documents.      Reginelli, 181 A.3d at 305.        In particular, the

Supreme Court concluded that the evidentiary privilege only applies to the

peer review documents of a “review committee” and not to the documents

of a “review organization.” Id. at 305-06 (emphasis added).

      The Supreme Court interpreted PRPA as creating two distinct categories

of entities: a “review committee” and a “review organization.” Id. at 305.

According to the Reginelli Court, PRPA defines a “review committee” as “any

committee engaging in peer review” and a “review organization” as “any

hospital    Board,   committee   or   individual   reviewing   the   professional

qualifications or activities of its medical staff or applicants for admission

thereto.”   Id.

      Applying this statutory interpretation to the facts of Reginelli, the

Supreme Court focused on the fact that the peer review documents at issue

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J-A12027-19



were part of a file created and maintained by an “individual.” The Supreme

Court concluded that since it was an “individual” who reviewed the documents,

and PRPA includes “individuals” in its definition of a “review organization,” the

PRPA privilege did not apply to those professional evaluations. Reginelli, 181

A.3d at 306. Similarly, this Court recently held that based on Reginelli, PRPA

does not shield from disclosure evaluations that a credentialing committee

generates.   Estate of Krappa v. Lyons, 211 A.3d 869, 875 (Pa. Super.

2019).

      Turning to the facts of this case and the peer review documents in

question, we are constrained to follow the holdings of Reginelli and Krappa.

Reginelli requires that, to determine the applicability of the PRPA privilege,

we must consider whether a “review organization” or a “review committee”

reviewed the professional evaluations of Dr. Petraglia.         Since St. Clair

Hospital’s credentialing committee is a committee that reviewed the

professional qualifications and activities of Dr. Petraglia following his

application for hospital privileges at St. Clair Hospital, the credentialing

committee is a review “organization.” Therefore, the PRPA privilege does not

apply to the documents that the credentialing committee reviewed.

      We also note that the Supreme Court concluded in a footnote that

credentialing review is not “entitled to protection from disclosure under PRPA’s

evidentiary privilege.” Reginelli, 181 A.3d at 306 n.13. The Supreme Court

based this conclusion on its observation that “[r]eview of a physician’s

credentials for purposes of membership (or continued membership) on a

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hospital’s medical staff is markedly different from reviewing the ‘quality and

efficiency of service ordered or performed’ by a physician when treating

patients.” Id. at 305. Although the professional evaluations of Dr. Petraglia

reviewed by the credentialing committee are different from the type of

documents that the Supreme Court considered in Reginelli, the Supreme

Court’s analysis still requires us to focus on the type of organization that is

reviewing the professional evaluations, not whether the documents meet the

definition of “peer review” documents.7

       We share the observation of the Dissent in Reginelli that the Majority’s

distinction between a review “organization” and review “committee” will result

in the “same chilling effect upon free and frank discussions aimed to ensure

and improve an appropriate quality of care that PRPA strives to vitiate.”

Reginelli, 181 A.3d at 315 (Wecht, J., dissenting). This chilling effect will

also occur when a credentialing committee is reviewing whether it should

grant hospital privileges to a physician with no relationship to the hospital. It

is crucial that a committee considering whether to authorize a physician to

practice at its hospital has the opportunity to obtain candid and accurate

evaluations of the physician before the physician practices at its hospital. The

privilege PRPA provides is an important step to encourage other physicians to

____________________________________________


7 In light of the fact that the Supreme Court assumed that documents in a
credentialing file are not peer review documents and in this case, the
documents at issue are peer review documents, it would be helpful for the
Supreme Court to grant allocator and address this issue directly.



                                           -9-
J-A12027-19



provide to hospitals accurate assessments of the performance of their peers.8

       In its second issue, Appellant claims that the trial court improperly

compelled it to produce the NPDB query responses. Appellant’s Brief at 43-

47. Appellant asserts that the HQIA protects query responses from disclosure.

Id.

       The HQIA requires hospitals to report information to the NPDB, and to

request information from the NPDB when a physician applies for privileges at

that hospital and every two years thereafter. Jacksonian v. Temple Univ.

Health Sys. Found’n, 862 A.2d 1275, 1278 (Pa. Super. 2004) (citing 42

U.S.C. §§ 11133, 11135). Thus, the purpose for which the NPDB provides the

information to hospitals, and the purpose for which the information is used, is

credentialing.

       The HQIA protects as confidential information reported pursuant to the

Act.   42 U.S.C. § 11137(b)(1).                The Act also provides, however, that

“[n]othing in this subsection shall prevent the disclosure of such information

by a party which is otherwise authorized, under applicable State law, to make

such disclosure.” Id. See also 45 C.F.R. § 60.20(a) (“Information reported

to the NPDB is considered confidential[,]” however, “nothing in this section

____________________________________________


8 We note that St. Clair Hospital argues that the holding in Reginelli that a
credentialing committee is a “review organization” is dicta because the
medical provider in Reginelli was claiming the privilege for peer review
documents in a file of an individual, not a credentialing committee. Even if
the language in Reginelli is dicta, we are still bound by the Supreme Court’s
interpretation of PRPA that the privilege does not apply to a “review
organization.”

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will prevent the disclosure of information by a party . . . where disclosure is

otherwise authorized under applicable state or Federal law.”).

      As discussed supra, Pennsylvania law does not protect the professional

evaluations of Dr. Petraglia in the file of the credentialing committee. Since

the confidentiality provisions of HQIA follow state law, HQIA does not preclude

the production of the evaluations of Dr. Petraglia.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2020




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