                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


 ESTATE OF LEONARD P. KRAPPA,                     : No. 323 MAL 2019
 DECEASED, BY AND THROUGH HIS                     :
 ADMINISTRATOR, LEONARD A. KRAPPA                 : Petition for Allowance of Appeal
 AND MARGARET KRAPPA, INDIVIDUALLY                : from the Order of the Superior Court
 AND IN HER OWN RIGHT                             :
                                                  :
                                                  :
               v.                                 :
                                                  :
                                                  :
 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                         :
                                                  :
                                                  :
 PETITION OF: COMMUNITY MEDICAL                   :
 CENTER                                           :


                              CONCURRING STATEMENT

JUSTICE WECHT                                           FILED: December 19, 2019

       I agree that the instant petition does not merit this Court’s review. While this case

suggests an issue of significant interest that may present itself in due course, it does not

properly frame that issue for our consideration now. Nonetheless, the issue is worth

mention, because it is likely to arise, recur, and materially affect many future disputes.
       Less than two years ago, this Court issued its decision in Reginelli v. Boggs, 181

A.3d 293 (Pa. 2018).1 In that case, this Court decided several interpretive questions

arising under the Peer Review Protection Act (“PRPA”), 63 P.S. §§ 425.1-425.4.2 The

PRPA creates a limited evidentiary privilege for certain records pertaining to physicians’

assessment of other physicians’ performance, i.e., “peer review.”3 The instant case

appears to be the first Superior Court opinion, published or otherwise, to apply Reginelli.

       In this matter, the files as to which the parties dispute the PRPA’s application were

compiled by a “credentialing committee” in service of determining whether to “credential”

and/or “recredential” two physicians subject to a medical malpractice suit. Estate of

Krappa v. Lyons, 211 A.3d 869, 871 (Pa. Super. 2019). Respondent-Plaintiffs sought

discovery of the committee’s unredacted files concerning these physicians. Petitioner-

Defendant Community Medical Center asserted privilege claims as to many of the

records, in furtherance of which it submitted privilege logs encompassing numerous

documents, the vast majority of which it specifically denominated “peer review



1     I authored a dissenting opinion.      See Reginelli, 181 A.3d at 308 (Wecht, J.,
dissenting).
2      Act of July 20, 1974, P.L. 564, No. 193, as amended.
3      The PRPA defines “peer review” in relevant part as follows:
       [T]he 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.
63 P.S. § 425.2.


                                   [323 MAL 2019] - 2
documents,” and some of which were described in ways that suggested the denomination

was apt. See, e.g., Privilege Log of the Credentialing File of Frank A. Piro, M.D., at 2 ¶ 8

(describing a “Medical Staff Peer Recommendation” as a “[p]eer [r]eview document

generated for . . . quality improvement purposes pursuant [to] MCARE.                Not for

redistribution outside [the] Committee.”).       Thus, Petitioner invoked the PRPA’s

protections. After reviewing the documents in camera, and considering arguments based

upon the then hot-off-the-presses Reginelli decision, the trial court determined that none

were protected by the privilege. On appeal, the Superior Court, which conducted its own

in camera review, agreed. Estate of Krappa, 211 A.3d at 871, 875.

       While Reginelli addressed a number of discrete questions of statutory

interpretation, the aspect of the case relevant to this matter drew a categorical distinction

between peer review and credentialing, as such. The Superior Court in this case relied

heavily upon this distinction. It is not necessary here to delve into the lengthy statutory

provisions at issue.4 It suffices to say that this Court interpreted the relevant provisions

to provide that “a review organization” is defined by the PRPA to encompass functionally

distinct peer review committees and credentialing committees. Only the work and files of

the former enjoy the PRPA privilege; files compiled for purposes of credentialing, as such,

are subject to discovery. See Reginelli, 181 A.3d at 305-06. In doing so, this Court

offered a relatively narrow definition of what comprises a “credentialing record.”

       The Court explained as follows:

       [A credentialing committee is] 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

4      The relevant provisions are reproduced at length in Reginelli and in the Superior
Court’s opinion. See Reginelli, 181 A.3d at 301-02; Estate of Krappa, 211 A.3d at 873.


                                    [323 MAL 2019] - 3
       individual.”10 [63 P.S. § 425.2.] This . . . 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. [Id.] Review of a
       physician’s credentials for purposes of membership (or continued
       membership) on a hospital’s medical staff is markedly different from
       reviewing the “quality and efficiency of service[s] 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,” [id.], are defined as a type of “review
       organization,” such individuals are not “review committees” entitled to claim
       the PRPA’s evidentiary privilege . . . .

       ________________
           10 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.

Reginelli, 181 A.3d at 305-06 (footnotes 11 and 12 omitted; emphasis added). I am

concerned that the marked difference posited by the Reginelli Court will prove more

difficult to discern in practice than it is to describe in the pages of a judicial opinion.

       The PRPA embodies the legislature’s effort to protect physicians who candidly

reveal concerns about the quality of care rendered by their peers to committees that

conduct such assessments, so as to ensure candid and reprisal-free physician

assessments by those who are most qualified and best positioned to make them. See

Reginelli, 181 A.3d at 300 (“[The PRPA] was enacted to serve the legitimate purpose of

maintaining high professional standards in the medical practice for the protection of

patients and the general public based upon the General Assembly’s determination that

because of the expertise and level of skill required in the practice of medicine, the medical

profession itself is in the best position to police its own activities.” (cleaned up)). Thus,



                                     [323 MAL 2019] - 4
the PRPA’s immunity and confidentiality provisions reflect the legislature’s effort “to foster

free and frank discussion by review organizations.” Id. (quoting Sanderson v. Frank S.

Bryan, M.D., Ltd., 522 A.2d 1138, 1140 (Pa. Super. 1987)); see 63 P.S. § 425.1,

Historical and Statutory Notes (“An Act providing for the increased use of peer review

groups by giving protection to individuals and data who report to any review group.”).

Such protection is not necessary with respect to essentially binary or anodyne inquiries,

such as as whether a physician has maintained board certifications, pursued continuing

education, conducted research, or otherwise attained certain qualifications—matters that

the Reginelli Court identified as part and parcel of credentialing as commonly understood.

Thus, to the extent these aspects of the credentialing and recredentialing processes can

be isolated, Reginelli established that such credential-related documents and

documentation of related activities are not privileged.

       As is so often the case, however, practical considerations may confound our effort

to draw clear distinctions in complex areas. This case anticipates a substantial difficulty

that lurks in the shadows cast by our bright line.

       Based upon the lower court opinions and the presentations of the parties, the

“committee” in possession of the records that are at issue in this case may in the course

of its work consider both peer review materials, as defined by the PRPA, and “credentials”

in the elementary qualifying sense we described in Reginelli. Indeed, it is not entirely

clear that Petitioner even has discrete peer review and credentialing committees, or that

any other hospital does so rather than, for example, relying upon one committee to

manage both processes. If and where this occurs, it may not suffice to reject the privilege




                                    [323 MAL 2019] - 5
claim based solely upon the fact that the name of the committee contains the word

“credentialing,” or where peer evaluations play materially into the credentialing inquiry.

       For example, if Petitioner’s privilege log had accurately described certain records

as consisting of peer review, properly understood, then the credentialing committee, as

part and parcel of the credentialing process, accepted peer review from other physicians.

This is hardly an unforeseeable result; there is no clear reason why a committee engaged

in assessing a physician’s fitness to affiliate, or continue to affiliate, with a given provider

would not seek out peer assessments or consider prior or current peer reports concerning

the quality of the physician’s care.

       Regardless of whether such records were sought from a committee named “peer

review” or “credentialing,” or whether they were utilized for purposes of assessing care in

itself or for purposes of determining whether a given physician deserved to be

credentialed or recredentialed at Community Medical Center, peer assessments are

precisely what the General Assembly sought to protect from discovery in the PRPA to

ensure that physicians freely and candidly assess each other’s performances. Allowing

disclosure simply because such documents were sought in connection with a

credentialing process rather than as a targeted committee review of the quality of a

physician’s care for its own sake would invite the chilling effect that the General Assembly

sought to prevent.

       In this case, however, I see no evidence that the lower courts did not appreciate

the distinction or that they allowed the committee label to drive their decision-making.5


5     Notably, Petitioner acknowledged in open court both the distinction between
credentialing and peer review files and that distinction’s putative legal effect:



                                       [323 MAL 2019] - 6
Indeed, from the bench, after reviewing the voluminous records in camera, the trial court

signaled that it deemed certain documents to reflect peer review, and that its order would

reflect that determination. Notes of Testimony, 4/10/2018, at 25-26 (“THE COURT: . . .

There were a handful of documents I thought qualified for the privilege, but like I said, the

vast majority I thought were discoverable. So now I’ll have to go through and . . . parse

them out.”). That the court evidently changed its view on further reflection and ordered

discovery of the entire credentialing committee file suggests nothing more than that it

ultimately determined that no records qualified as peer review, not that the court failed to

recognize a material distinction between credentialing and peer review materials. That

the Superior Court affirmed the trial court after conducting its own in camera review only

indicates that it found adequate support in the record for the trial court’s conclusions, and

I discern no basis for challenging that finding under the circumstances of this case.

Nonetheless, nothing in the Superior Court’s opinion signals any explicit recognition that

the peer review/credentialing distinction must be drawn practically based upon case-

specific considerations rather than mere nomenclature. Going forward, I think such

recognition is important.

       Courts should remain mindful of the potential for variability and overlap of different

providers’ peer review and credentialing processes, and should endeavor to balance the



       [COUNSEL FOR PETITIONER:] I will concede that there are some things
       in the credentialing file, the Doctor’s application that says where he went to
       school, whether he’s licensed in whatever states, those kinds of things,
       [Plaintiffs have] all that. But when you ask another physician to critique a
       physician who is an applicant to your hospital, that’s the very essence of
       peer review. That’s one peer commenting on the ability of another peer.
       That’s protected. And [Reginelli] does not say anything about that.
Notes of Testimony, 4/6/2018, at 11.


                                    [323 MAL 2019] - 7
importance of providing access to evidence that qualifies for discovery under the usual

permissive standard with the legislative mandate to protect peer review records from

discovery. Only by doing so can courts ensure that the people best qualified to assess

and police physician performance may do so forthrightly and without fear of reprisal. For

its part, this Court should avail itself of any future opportunity to further hone the law in

this challenging, consequential area of statutory interpretation.




                                    [323 MAL 2019] - 8
