J-A06024-19

                                  2019 PA Super 168


    ESTATE OF LEONARD P. KRAPPA,               :     IN THE SUPERIOR COURT OF
    DECEASED, BY AND THROUGH HIS               :          PENNSYLVANIA
    ADMINISTRATOR, LEONARD A.                  :
    KRAPPA, AND MARGARET KRAPPA,               :
    INDIVIDUALLY AND IN HER OWN                :
    RIGHT                                      :
                                               :
                                               :
                v.                             :     No. 822 MDA 2018
                                               :
                                               :
    MARK LYONS, D.O.; FRANK PIRO,              :
    M.D.; JONATHAN C. SULLUM, M.D.;            :
    JUAN C. BARRERA, M.D.; JAMES               :
    FRANGOS, M.D.; LOUIS                       :
    DEGENNARO, M.D.; AND                       :
    COMMUNITY MEDICAL CENTER                   :
                                               :
                                               :
    APPEAL OF: COMMUNITY MEDICAL               :
    CENTER                                     :

                  Appeal from the Order Entered April 11, 2018
      In the Court of Common Pleas of Lackawanna County Civil Division at
                             No(s): 2012 CIV 581


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.*

OPINION BY NICHOLS, J.:                            FILED: MAY 23, 2019

        Appellant Community Medical Center appeals from the order granting

the emergency motion to compel discovery1 filed by Appellees Estate of

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*   Retired Senior Judge assigned to the Superior Court.

1 “[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). Nevertheless, “An appeal may be taken
as of right from a collateral order of [a] . . . lower court.” Pa.R.A.P. 313(a).
J-A06024-19



Leonard Krappa, deceased, by and through his administrator, Leonard A.

Krappa, and Margaret Krappa, individually and in her own right. Appellant

claims the trial court erroneously granted the emergency motion to compel,

because Appellees sought the production of documents that are privileged

under the Peer Review Protection Act2 (PRPA). We affirm.

        The trial court opinion set forth the relevant facts of this appeal as

follows:

        [Appellees] initiated this medical malpractice action . . . in January
        2012 alleging a delay in the diagnosis of cancer.

        In [the] complaint, [Appellees] raised thirteen (13) counts against
        multiple Defendants. Pertaining to this appeal, Count II asserts a
        negligence claim against Frank Piro, M.D. with respect to his
        interpretation of a CT scan in January 2008. Count VII asserts a
        claim of direct negligence against [Appellant]. Count VIII asserts
        a corporate liability claim against [Appellant] with respect to the
        hiring, training, and/or supervising physicians, including Dr. Piro.
        Count IX asserts a claim of vicarious liability against [Appellant,]
        alleging [Appellant] is responsible for the actions or inactions of
        its employees and/or agents, including Dr. Piro. Count X asserts
        a claim of ostensible agency against [Appellant] with respect to
        Dr. Piro. In addition, the complaint asserts claims for wrongful
        death, survival action, and loss of consortium.


____________________________________________


“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).

2   63 P.S. §§ 425.1-425.4.



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        During the course of discovery, [Appellees] sought unredacted
        copies of [Appellant’s] files for Drs. Piro and Sabbar. [Appellant]
        and Dr. Piro objected to the production and asserted the
        information requested was privileged pursuant to the [PRPA].

        Trial was scheduled to begin on April 9, 2018. On April 5, 2018,
        [Appellees] filed an emergency motion to compel [Appellant] to
        produce the unredacted and complete credentialing materials for
        Drs. Piro and Sabbar. In [the] motion, [Appellees] sought
        production of unredacted credentialing files,[3] based on the
        recently decided Pennsylvania Supreme Court decision Reginelli
        v. Boggs, 181 A.3d 293 (Pa. 2018).[4]

        Oral argument was heard on Friday, April 6, 2018. [At that time,
        Appellant asserted that Reginelli was inapplicable. Appellant
        argued that its credentialing committee constituted a “review
        committee” whose records must remain confidential under the
        PRPA.       Further, Appellant insisted that the performance
        evaluations in its files satisfied the PRPA’s definition of “peer
        review” materials.] On Monday, April 9, 2018, [the trial] court
        conducted an in camera review of the . . . unredacted credentialing
        files for both Drs. Piro and Sabbar. Additional oral argument was
        heard on April 10, 2018. On April 11, 2018, [the trial] court
        entered an order compelling the production of the unredacted . .
        . files [generated by Appellant’s credentialing committee]
        pursuant to Reginelli.


____________________________________________


3   Specifically, Appellees’ motion requested

        the complete, unredacted credential and personnel files of Drs.
        Piro and Sabbar setting forth their qualifications or lack thereof,
        in the materials submitted in support of those applications, the
        circumstances under which they were hired and the manner in
        which their employment with [Appellant’s] Radiology Department
        ended and/or was terminated. Additionally, [Appellant] should be
        directed to produce any memorandum or writing confirming the
        nature of the relationships between CMC Radiology, Defendant Dr.
        Piro, Dr. Sabbar, Foundation Radiology and [Appellant].

Emergency Mot. to Compel, 4/5/18, at 12-13.

4   The Pennsylvania Supreme Court decided Reginelli on March 27, 2018.

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J-A06024-19


      On May [10], 2018, [Appellant] filed a notice of appeal. On June
      22, 2018, [the trial] court entered an order granting [Appellant’s]
      request for a stay pending appeal.

Trial Ct. Op. 7/23/18, at 1-2 (unpaginated).

      The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. On July 23, 2018, the court filed

an opinion pursuant to Pa.R.A.P. 1925(a). The court asserted that Appellees

sought to obtain credentialing materials for Drs. Piro and Sabbar and such

materials are discoverable under Reginelli.

      Appellant now presents one question for this Court’s review:

      Did the trial court err, as a matter of law, in construing Reginelli
      . . . as announcing a blanket rule depriving all previously-
      protected credentialing committee materials of peer review
      protection, when the issue of a credentialing committee’s review
      of physician performance was not before the Supreme Court; to
      the extent the Supreme Court addressed credentialing materials,
      it limited its discussion to that part of the credentialing process
      concerned only with factual review of professional qualifications,
      such as board certifications, and professional activities, such as
      service on professional organizations; and the Court reaffirmed
      that the peer review privilege protects the records of any review
      committee when one professional health care provider is
      evaluating the performance of another professional healthcare
      provider?

Appellant’s Brief at 4 (quotation marks omitted).

      Appellant maintains that the trial court overruled Appellant’s “claim of

peer review protection for the performance evaluation materials contained in

the credential files for Dr. Piro and Dr. Sabbar.” Id. at 11. Appellant contends

that its “credentialing committee records relating to peer evaluations,

performance appraisals, and responses to [National Practitioner Data Bank]



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J-A06024-19



queries, for the initial appointment and reappointment of Dr. Piro and Dr.

Sabbar, which were generated for quality improvement purposes and

maintained exclusively by the committee, fall squarely within the PRPA. . . .”

Id. at 24.

      Appellant insists that the Pennsylvania Supreme Court “has consistently

held that performance evaluation by a review committee constitutes protected

peer review.” Id. at 17. Appellant asserts that Reginelli “did not question

whether performance evaluation constitutes protected peer review, but only

whether the performance review in that case was conducted by a qualified

review committee.” Id. Further, Reginelli “did not decide to revoke peer

review protection afforded to performance evaluation by a credentialing

committee.” Id. at 18.

      To the extent Reginelli discussed the credentialing review process,

Appellant states that such discussion amounts to dicta. Id. at 23. Based

upon the foregoing, Appellant argues that the trial court “erred as a matter of

law in construing Reginelli as announcing a blanket rule stripping peer review

protection from performance evaluations by a credentialing committee.” Id.

at 23-24. Appellant concludes that this Court must reverse the order granting

Appellees’ emergency motion to compel. Id. at 25.

      “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, 119 A.3d at 1019 (quotation marks and citations

omitted).

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J-A06024-19



     The PRPA provides the following evidentiary privilege:

     § 425.4. Confidentiality of review organization’s records

            The proceedings and records of a review committee shall
     be held in confidence and shall not be subject to discovery or
     introduction into evidence in any civil action against a professional
     health care provider arising out of the matters 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, evaluations, opinions or other actions of such
     committee or any members thereof: Provided, however, That
     information, documents or records otherwise available from
     original sources are not to be construed as immune from discovery
     or used in any such civil action merely because they were
     presented during proceedings of such committee, nor should any
     person who testifies before such committee or who is a member
     of such committee be prevented from testifying as to matters
     within his knowledge, but the said witness cannot be asked about
     his testimony before such a committee or opinions formed by him
     as a result of said committee hearings.

63 P.S. § 425.4 (emphasis added).

     The PRPA also defines the following pertinent terms:

     § 425.2. Definitions

           As used in this act:

           “Peer review” means 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, including practice analysis, inpatient hospital and
     extended care facility utilization review, medical audit, ambulatory
     care review, claims review, and the compliance of a hospital,
     nursing home or convalescent home or other health care facility
     operated by a professional health care provider with the standards
     set by an association of health care providers and with applicable
     laws, rules and regulations.

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J-A06024-19



                                 *    *    *

            “Review organization” means any committee engaging in
     peer review, including a hospital utilization review committee, a
     hospital tissue committee, a health insurance review committee,
     a hospital plan corporation review committee, a professional
     health service plan review committee, a dental review committee,
     a physicians’ advisory committee, a veterinary review committee,
     a nursing advisory committee, any committee established
     pursuant to the medical assistance program, and any committee
     established by one or more State or local professional societies,
     to gather and review information relating to the care and
     treatment of patients for the purposes of (i) evaluating and
     improving the quality of health care rendered; (ii) reducing
     morbidity or mortality; or (iii) establishing and enforcing
     guidelines designed to keep within reasonable bounds the cost of
     health care. It shall also mean any hospital board, committee or
     individual reviewing the professional qualifications or activities of
     its medical staff or applicants for admission thereto. It shall also
     mean a committee of an association of professional health care
     providers reviewing the operation of hospitals, nursing homes,
     convalescent homes or other health care facilities.

63 P.S. § 425.2.

     In Reginelli, Monongahela Valley Hospital (MVH) contracted with UPMC

Emergency Medicine, Inc. (ERMI) to provide staffing and administrative

services for MVH’s emergency room. The plaintiff went to MVH’s emergency

room and received treatment from Dr. Boggs. Thereafter, the plaintiff pursued

a medical malpractice action against Dr. Boggs, MVH, and ERMI.

     During discovery, the plaintiff deposed Dr. Walther, an ERMI employee

who served as the director of MVH’s emergency department and Dr. Boggs’

supervisor.   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 the patients Dr. Boggs had treated.

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J-A06024-19



The plaintiff subsequently filed a discovery request seeking the complete

performance file for Dr. Boggs maintained by Dr. Walther. MVH, ERMI, and

Dr. Boggs raised various objection to the production of the file, including

assertions that it was privileged under the PRPA. Ultimately, the trial court

ordered MVH to supply Dr. Boggs’ performance file to the plaintiff, and this

Court affirmed the trial court’s order.

      The Pennsylvania Supreme Court granted allowance of appeal to

determine whether ERMI and MVH had any entitlement to the PRPA’s

evidentiary privilege with respect to the performance file. The Supreme Court

engaged in statutory interpretation of the pertinent provisions of the PRPA and

determined, “the PRPA’s evidentiary privilege is reserved only for the

proceedings and documents of a review committee.” Reginelli, 181 A.3d

at 304 (citation omitted) (emphasis in original).           The Reginelli Court

reasoned:

      the terms “review committee” and “review organization” are not
      interchangeable, as they connote distinct types of entities under
      the PRPA.      The first sentence of the definition of “review
      organization” defines the type of entity that constitutes a “review
      committee,” namely, “any committee engaging in peer review.”
      The second sentence, in contrast, contains no reference to peer
      review, and instead refers to a “hospital board, committee or
      individual” involved in the review of “the professional
      qualifications or activities of its medical staff or applicants thereto”
      by a “hospital board, committee or individual.”[fn10] This second
      category of “review organizations” does not involve peer review,
      as that term is defined in the PRPA, which is limited to the
      evaluation of the “quality and efficiency of services ordered or
      performed” by a professional health care provider. Review of a
      physician’s credentials for purposes of membership (or continued
      membership) on a hospital’s medical staff is markedly different

                                       -8-
J-A06024-19


      from reviewing the “quality and efficiency of service ordered or
      performed” by a physician when treating patients. Accordingly,
      although     “individuals     reviewing     the    professional
      qualifications or activities of its medical staff or applicants
      for admission thereto,” . . . are defined as a type of “review
      organization,”     such    individuals    are    not    “review
      committees” entitled to claim the PRPA’s evidentiary
      privilege in its section 425.4.

         [fn10] Professional “qualifications” would include, for
         instance, a physician’s continuing maintenance of his or her
         board certifications, and “activities” could include clinical
         research initiatives, continuing education, service on
         professional committees or organizations and, more broadly
         speaking, other qualifications deemed necessary by the
         hospital. Credentials review permits a hospital to retain,
         and then maintain, a medical staff of quality professionals.

Id. at 305-06 (citations and some footnotes omitted) (emphasis added).

      Therefore, the Reginelli Court indicated that the PRPA does not extend

its grant of an evidentiary privilege to materials that are generated and

maintained by entities reviewing the professional qualifications or activities of

medical staff “i.e., credentials review.”     Id. at 306.     Additionally, “the

performance file [in Reginelli] was not generated or maintained by MVH’s

peer review committee,” and the PRPA’s evidentiary privilege did not apply.

Id. at 296.

      Instantly, the trial court conducted an in camera review and determined

that the files at issue “consist entirely of credentialing materials of Drs. Piro

and Sabbar.” Trial Ct. Op. at 4 (unpaginated). This Court has conducted its

own review of the files, which the parties transmitted under seal with the

certified record. Our review confirms the trial court’s finding.




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J-A06024-19



       Regarding the applicability of the PRPA, the materials in the doctors’

personnel files are generated and maintained by Appellant’s credentialing

committee.      The PRPA’s protections do not extend to the credentialing

committee’s materials, because this entity does not qualify as a “review

committee.” See Reginelli, 181 A.3d at 306. Accordingly, the trial court did

not err in its interpretation of the PRPA, and Appellant is not entitled to relief

on its claim.5 See Yocabet, 119 A.3d at 1019.

       Order affirmed. Appellee’s application to strike Dr. Piro’s brief denied

as moot.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2019




____________________________________________


5In light of our disposition, we deny as moot Appellees’ application to strike
Dr. Piro’s brief.

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