J-A23019-15 & J-A23020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELEANOR REGINELLI AND                     IN THE SUPERIOR COURT OF
ORLANDO REGINELLI                               PENNSYLVANIA


                 v.

MARCELLUS BOGGS, M.D., AND
MONONGAHELA VALLEY HOSPITAL, INC.,
AND UPMC EMERGENCY MEDICINE, INC.,
D/B/A EMERGENCY RESOURCE
MANAGEMENT, INC.

APPEAL OF: MONONGAHELA VALLEY
HOSPITAL, INC.
                                              No. 1584 WDA 2014


            Appeal from the Order Entered August 29, 2014
          In the Court of Common Pleas of Washington County
                   Civil Division at No(s): 2012-5172


                                *****



ELEANOR REGINELLI AND                     IN THE SUPERIOR COURT OF
ORLANDO REGINELLI                               PENNSYLVANIA


                 v.

MARCELLUS BOGGS, M.D., AND
MONONGAHELA VALLEY HOSPITAL, INC.,
AND UPMC EMERGENCY MEDICINE, INC.,
D/B/A EMERGENCY RESOURCE
MANAGEMENT, INC.

APPEAL OF: UPMC EMERGENCY
MEDICINE, INC., AND MARCELLUS
BOGGS, M.D.
                                              No. 1585 WDA 2014
J-A23019-15 & A23020-15


                Appeal from the Order Entered August 29, 2014
              In the Court of Common Pleas of Washington County
                       Civil Division at No(s): 2012-5172


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED OCTOBER 23, 2015

       Appellants, UPMC Emergency Medicine, Inc., doing business as

Emergency Resource Management, Inc. (“ERMI”), Marcellus Boggs, M.D.,

and Monongahela Valley Hospital, Inc. (the “Hospital”), seek review of the

order directing the Hospital to produce specific documents over Appellants’

claim of privilege.1 After careful review, we affirm.

       The relevant factual and procedural history of this matter is as follows:

       In January 2011, [Appellee] Eleanor Reginelli (hereinafter “Mrs.
       Reginelli”) experienced chest pain, and was taken to [Appellant]
       Marcellus Boggs, M.D. (hereinafter “Dr. Boggs”), an employee of
       [Appellant] UPMC Emergency Medicine, Inc., d/b/a Emergency
       Resource Management, Inc. (hereinafter “ERMI”). In August
       2012, [Appellees] brought suit, alleging that Dr. Boggs’
       negligence resulted in permanent damage to Mrs. Reginelli’s
       heart.    In the course of discovery, [Appellees] learned Dr.
       Brenda Walther – an ERMI employee who was Dr. Boggs’
       supervisor at the Hospital – kept performance data for the
       emergency department physicians at the Hospital.

       [Appellees] requested this performance data, which included, but
       was not limited to, Dr. Boggs’ performance file. [Appellants]
       objected to this discovery request, and, on June 19, 2014, this
       [c]ourt heard argument on [Appellees’] motion to compel. On
       August 29, 2014, this [c]ourt granted Plaintiffs’ motion. . . .
____________________________________________


1
  Appellant Hospital filed an appeal and Appellants ERMI and Dr. Boggs filed
a separate appeal of the order. As the issues raised in the two appeals are
identical, we dispose of both appeals simultaneously in this memorandum.




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J-A23019-15 & A23020-15


       [Appellants] Boggs, the Hospital, and ERMI appealed,2 but only
       with regard to Dr. Boggs’ performance file.

Trial Court Opinion, 11/25/14, at 1-2.

       Appellants raise the following issues on appeal:

       1. Whether the August 29, 2014 [order] granting Plaintiffs’
          [m]otion to [c]ompel [d]iscovery[] is a collateral order
          appealable as of right pursuant to Pa.R.A.P. 313, when that
          order compels production of documents protected from
          production as privileged under the Pennsylvania Peer Review
          Protection Act[.]

       2. Whether the trial court committed an error of law in issuing
          its August 29, 2014 [order,] as it pertained to Plaintiffs’
          Document Request Number 10, requesting “the complete
          ‘performance file’ for [Dr.] Boggs maintained by Dr. Walther
          as she described during her recently reconvened deposition”
          when the evidence of record shows [the] file and documents
          contained therein are the result of the review and evaluation
          by the Director of Emergency Services at Monongahela Valley
          Hospital, Inc.[,] in accordance with the Pennsylvania Peer
          Review Protection Act[,] of the quality and efficiency of health
          care services being performed and provided to patients by
          other physicians, and therefore that file is privileged and
          protected from discovery under that act.

Brief for Appellant, Monongahela Valley Hospital, Inc., at 5-6.


____________________________________________


2
  The Reginellis assert that ERMI and Dr. Boggs are not aggrieved parties
and have no standing to appeal the order granting the motion to compel
since it compelled production from the Hospital only. However, ERMI and
Dr. Boggs take the position that they are aggrieved because Dr. Boggs’
performance file was created and maintained solely on behalf of ERMI. On
this basis, ERMI and Dr. Boggs assert that the performance file is privileged
as peer review. Thus, ERMI and Dr. Boggs have a direct interest in the
outcome. Cf. Harrison v. Hayes, 870 A.2d 326, 330 (Pa. Super. 2005)
(non-party entity which did not allege peer review privilege did not have
standing to appeal grant of motion compelling defendant hospital to produce
documents).



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J-A23019-15 & A23020-15



        We begin by considering whether the order compelling production of

Dr. Boggs’ performance file is an appealable order. Ordinarily,

        [a]n appeal may be taken only from a final order unless
        otherwise permitted by statute or rule. A final order is ordinarily
        one which ends the litigation or disposes of the entire case;
        however, “[a]n appeal may be taken as of right from a collateral
        order of an administrative agency or lower court.” Pa.R.A.P.
        313(a). A collateral order is defined under Pa.R.A.P. 313(b) as
        “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.”

Ben v. Schwartz, 729 A.2d 547, 550 (Pa. 1999).

        Instantly, the trial court has ordered disclosure of Dr. Boggs’

performance file, comprised of documents which Appellants assert are

confidential pursuant to the Pennsylvania Peer Review Protection Act (the

“Act”).3 Such orders are reviewable by this Court as collateral orders under

Pa.R.A.P. 313. First, “the issue of privilege is separate from the merits of

the dispute for purposes of the collateral order doctrine.”           Ben, supra at

552. Secondly, if the trial court granted disclosure in error, the confidential

nature of allegedly protected documents would be irreparably lost.                See

Dodson v. DeLeo, 872 A.2d 1237 (Pa. Super. 2005) (in professional

negligence     action,   order    requiring    disclosure   of   information   hospital

contended was protected from discovery pursuant to the Act was appealable


____________________________________________


3
    63 P.S. §§ 425.1-425.4.



                                           -4-
J-A23019-15 & A23020-15



collateral order since confidential nature of documents would be lost if

disclosed).   Thus, the order granting the Reginellis’ motion to compel

discovery is an appealable collateral order.

      Next, we turn to whether the trial court committed an error of law in

ordering the disclosure of Dr. Boggs’ performance file.       Appellants assert

that the performance file is protected from discovery pursuant to the Act. In

our analysis of whether the performance file is protected, we note that the

purpose of the Act is “to facilitate self-policing in the health care industry”

and that the “medical profession itself is in the best position to police its own

activities.” Dodson, supra at 1242.

      The medical profession regulates itself via peer review, defined as “a

procedure for evaluation by professional health care providers of the quality

and efficiency of services ordered or performed by other professional health

care providers.” Venosh v. Henzes, ___ A.3d ___, 2015 PA Super 169, *2

(filed August 7, 2015) (citing 63 P.S. § 425.2). Regarding peer review, the

Act mandates that “proceedings and records of a review committee shall be

held in confidence.” 63 P.S. § 425.4. However, “under the express terms of

the Act, ‘peer review occurs only when one professional health care provider

is evaluating another professional health care provider.’” Venosh, supra at

*2 (quoting Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1021 (Pa.

Super. 2015)).

      The parties dispute whether the contents of Dr. Boggs’ performance

file are privileged peer review records and whether Appellants may invoke

                                      -5-
J-A23019-15 & A23020-15



the protection of the Act. We note that the “party invoking a privilege must

initially set forth facts showing that the privilege has been properly invoked.”

Yocabet, supra at 1019.       As with other privileges, the privilege arising

under the Act applies only to information that remains private.            See

Dodson, supra at 1243 (peer review privilege could be invoked because

“documents were both generated and used exclusively by [] peer review

department”).

        Here, the alleged peer review was conducted by Dr. Walther, an ERMI

employee. Dr. Boggs’ performance file was “created and maintained solely

by Dr. Walther on behalf of her employer.” Reply Brief of ERMI and Boggs,

at 6.    The Hospital therefore cannot claim that the file is the Hospital’s

privileged peer review, since, as the trial court noted, “it is untenable that

the Hospital could claim a privilege for documents that it neither generated

nor maintained.” Trial Court Opinion, 11/25/14, at 2-3. Thus, any privilege

that may exist regarding Dr. Boggs’ performance file cannot be invoked by

the Hospital.

        ERMI and Dr. Boggs are also unable to claim privilege pursuant to the

Act.    First, ERMI, as an independent contractor staffing the Hospital’s

emergency room, is not an entity enumerated in the Act as being protected

by peer review privilege.    See 63 P.S. § 425.2; see also McClellan v.

Health Maint. Org. of Pennsylvania, 686 A.2d 801, 806 (Pa. 1996)

(professional health care providers that may conduct privileged peer review

are either direct health care practitioners or administrators of a health care

                                     -6-
J-A23019-15 & A23020-15



facility). Secondly, even if ERMI were considered to be an entity entitled to

assert the Act’s peer review privilege, Dr. Boggs’ performance file did not

remain exclusive. Instead, it is apparent that ERMI shared the file with the

Hospital, since the Reginellis sought the file from the Hospital and the

Hospital has provided it in camera.     Thus, any privilege for Dr. Boggs’

performance file that may have existed was destroyed via disclosure to the

Hospital.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2015




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