J-A22021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MEGAN AND JORDAN SMITH,                    :   IN THE SUPERIOR COURT
                                               :      OF PENNSYLVANIA
                   Appellees                   :
                                               :
                       v.                      :
                                               :
    ERIC SCHAFF, M.D. AND                      :
    ALLENTOWN WOMEN’S CENTER,                  :
    INC.,                                      :
                                               :
                  Appellants                   : No. 610 EDA 2019



                 Appeal from the Order Dated January 18, 2018
             in the Court of Common Pleas of Northampton County
                Civil Division at No(s): No. C48-CV-2016-11135

BEFORE:      MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED OCTOBER 18, 2019

       Eric Schaff,     M.D.    and    Allentown   Women’s Center, Inc.   (AWC)

(collectively, Appellants) appeal from an order denying a motion for protective

order and requiring the disclosure of certain medical information and reports,

which they contend are privileged and confidential.1 Upon review, we reverse


____________________________________________
1 As discussed infra, Appellants asserted claims of privilege and confidentiality
in their motion for protective order. “[I]n general, discovery orders are not
final, and are therefore unappealable. However, discovery orders involving
privileged material are nevertheless appealable as collateral to the principal
action pursuant to Pa.R.A.P. 313.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056
(Pa. Super. 2008) (internal citations and quotation marks omitted); see also
Buckman v. Verazin, 54 A.3d 956, 959 (Pa. Super. 2012) (holding order
compelling discovery of a confidential non-party medical information satisfied
the elements of being a collateral order because “once disclosed, the
confidentiality attaching to this information is lost”).

* Retired Senior Judge assigned to the Superior Court.
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in part, vacate in part, and remand for proceedings consistent with this

memorandum.

     The trial court provided the following background.

           This medical professional liability action began with
     [Appellees,] Megan and Jordan Smith [(the Smiths)], filing a
     complaint against [Appellants], on December 23, 2016. [The
     Smiths] allege that, on March 21, 2015, the negligence of
     [Appellants] caused perforations to Megan Smith’s uterus during
     an abortion procedure. [The Smiths] claim that, as a result of
     these perforations, Megan Smith suffered a uterine hemorrhage
     on April 8, 2015, which required an emergency hysterectomy at
     Lehigh Valley Hospital [(LVH)].

           A few days later, AWC notified Megan Smith that a serious
     event report was made by AWC regarding the emergency surgery
     at LVH. Specifically, the nursing director at AWC sent the
     following letter dated April 14, 2015:

           Dear Megan[,]

           Please be informed that, in compliance MCARE Act, a
           report of a serious event has been made by [AWC] to
           the Pennsylvania Department of Health and the
           Patient Safety Authority in regard to the clinical care
           that you received at [LVH] on 4/8/15. This report
           does not contain any information that could identify
           you.

     [The Smiths’ Brief in Opposition to Appellants’            Motion,
     10/19/2018, at 4, Exhibit B (emphasis added)].

           On June 28, 2018, [the Smiths] sent to [Appellants’] counsel
     discovery requests, one of which requested the production of the
     serious event reports made by AWC.

Trial Court Opinion, 3/18/2019, at 1-2.

     Relevant to this appeal, the Smiths requested the following item(s):

“Please supply all reports of all serious events [AWC] made to the


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Pennsylvania Department of Health and the Patient Safety Authority between

January 1, 2014, and December 31, 2016. Any patient identity information

contained in these documents may be redacted, with or without the production

of a ‘privilege log.’” The Smiths’ Supplemental Request for Production of

Documents, at ¶ 4.

        In response to this request, on August 17, 2018, Appellants filed a

motion for protective order. Appellants asserted that “serious event reports”

are “expressly precluded from discovery under the MCARE Act’s Patient Safety

provisions. See 40 P.S. § 1303.311(a).” Motion for Protective Order,

8/17/2018, at ¶¶ 6(a), 21-28. Appellants also sought protection pursuant to

the Peer Review Protection Act (PRPA), 63 P.S. §§ 425.1-425.4. Id. at ¶ 19.

In addition, Appellants asserted that “the burdens associated with responding

to [the Smiths’] broad request far outweigh any marginal relevance.” Brief in

Support of Motion for Protective Order, 9/18/2018, at 7.          Furthermore,

Appellants requested that the trial court undertake in camera review of the

documents pursuant to Yocabet v. UPMC Prebyterian, 119 A.3d 1012 (Pa.

Super. 2015). Id. at 14. The trial court held oral argument on the motion.2

Following argument, the trial court ordered the Smiths to file a responsive

brief and scheduled an additional oral argument.3


____________________________________________
2Although Appellants requested the transcript of this oral argument in their
notice of appeal, it is not included in the certified record.

3   It is not clear from the record whether this oral argument was held.

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       On October 19, 2018, the Smiths filed a response arguing that the trial

court should deny Appellants’ motion for protective order for several reasons.

First, they argued that their claim for punitive damages permitted this

discovery. They also claimed that the contentions set forth by Appellants in

support of their motion for protective order were not specific enough to

warrant the relief requested.         The Smiths further argued that neither the

MCARE Act nor the PRPA precludes production of this discovery. On January

18, 2019, the trial court denied Appellants’ motion for protective order, which

meant that Appellants were required to disclose to the Smiths all serious event

reports from AWC for a three-year period.

       On February 19, 2019, Appellants timely filed a notice of appeal.4 The

trial court did not order Appellants to file a concise statement of errors



____________________________________________
4 Also on February 19, 2019, Appellants filed a motion for reconsideration of
the trial court’s denial of the protective order, or in the alternative, a
certification for immediate interlocutory appeal pursuant to 42 Pa.C.S.
§ 702(b) (governing interlocutory appeals by permission). In their motion for
reconsideration, Appellants requested the trial court conduct in camera review
to determine which documents should be protected. Motion for
Reconsideration, 2/19/2019, at 3-4. In support of their motion, Appellants
attached as Exhibit E, a “redacted copy of the Serious Event Report, pertaining
to [Megan Smith], which demonstrates that this Report was submitted to the
Pennsylvania Department of Health and/or Patient Safety Authority, through
the established ‘Patient Safety Reporting System.’” Id. at 9. Appellants also
attached a privilege log which “identified meeting minutes of [AWC’s] internal
‘Medical Advisory Committee,’ ‘Quality Assurance Committee and
Improvement Committee,’ and ‘Patient Safety Authority,’ which referenced
[Megan Smith].” Id. at 10.




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complained of on appeal, but the trial court did file an opinion pursuant to

Pa.R.A.P. 1925(a).

       On appeal, Appellants set forth three issues for our review, which we

have reordered for ease of disposition.

       I. Whether the trial court erred and abused its discretion when it
       denied Appellants’ request for a protective order, and ordered
       Appellants to produce reports of [s]erious [e]vents pertaining to
       – and clearly implicating the privacy rights of – unrepresented,
       non-party patients, where such information is confidential,
       privileged, and beyond the scope of discovery under Pennsylvania
       law, including this Court’s decision in Buckman[, supra]?

       II. Whether the trial court erred and abused its discretion when
       it denied Appellants’ request for a protective order, and ordered
       Appellants to produce all reports of [s]erious [e]vents made to the
       Pennsylvania Department of Health and Patient Safety Authority
       from January 1, 2014 to December 31, 2016, where the requested
       information is privileged, and expressly precluded from discovery,
       under Chapter 3 of the MCARE Act and the [PRPA]?

       III. Whether the trial court erred or abused its discretion when it
       denied Appellants’ request for a protective order, and ordered
       Appellants to produce all reports of [s]erious [e]vents requested
       by [the Smiths], before conducting [] in camera review to
       evaluate claims of privilege as required under Pennsylvania law,
       including this Court’s decisions in Yocabet[, supra,]and related
       cases?

Appellants’ Brief at 8-9.


____________________________________________

      On March 18, 2019, the trial court denied the motion for reconsideration,
as well as Appellants’ request for permission to appeal the interlocutory order.
The trial court concluded that “[i]n their original motion for a protective order,
[Appellants] failed to aver, let alone prove,” the elements required under the
MCARE Act. Trial Court Opinion, 3/18/2019, at 4. In addition, the trial court
concluded that these documents were not protected by the PRPA because they
concerned care “Megan Smith received at LVH, not the care she received at
AWC.” Id.

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      We begin with Appellant’s claim that the trial court erred in ordering the

production of all serious event reports submitted by AWC for a three-year

period. Appellants’ Brief at 38-42. According to Appellants, these documents

are confidential, “contain[] sensitive medical information about reproductive

care, [and] clearly implicate the privacy rights of unrepresented, non-party

patients.” Id. at 38. Thus, Appellants argue the trial court erred in ordering

their production. The Smiths do not respond to this argument; rather, they

contend that the information requested from AWC is relevant not just to their

negligence claim, but also to their punitive damages claim related to the care

Mrs. Smith received at AWC after the procedure performed by Dr. Schaff. The

Smiths’ Brief at 16.

      “Generally, in reviewing the propriety of a discovery order, our standard

of review is whether the trial court committed an abuse of discretion.

However, to the extent that we are faced with questions of law, our scope of

review is plenary.” Gallo v. Conemaugh Health Sys., Inc., 114 A.3d 855,

860 (Pa. Super. 2015).

      In support of their claim, Appellants rely upon this Court’s opinion in

Buckman, supra. That case involved a medical-malpractice action where

Mrs. Buckman asserted that Dr. Gary Verazin negligently performed her

sigmoid colectomy and colostomy. During discovery, Mrs. Buckman requested

from the hospital defendant “medical records of all sigmoid colectomy and/or

anterior resection procedures conducted by Dr. Verazin in the five (5) years


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prior to the” date of Mrs. Buckman’s surgery. Buckman, 54 A.3d at 958. The

trial court granted the Buckman’s motion to compel that discovery and Dr.

Verazin and the hospital defendants (the Defendants) appealed. Upon review,

this Court concluded the trial court erred in granting Mrs. Buckman’s motion

to compel because “[t]he information relating to third parties that have not

given their consent is confidential and is not relevant to the instant negligence

claim in that actions taken by Dr. Verazin when operating on other patients is

not probative of what his actions were when caring for Ms. Buckman.” Id. at

964.

       Based on the foregoing, it is clear the trial court erred by not taking into

account the privacy and confidentiality of medical information related to non-

parties in this case. The trial court did not address these concerns in any

respect in its opinion, despite the fact that Appellants raised this issue in the

trial court. See Motion for Protective Order, 8/17/2018, at 12-13; Brief in

Support of Motion for Protective Order, 9/18/2018, at 9. Having concluded

that the trial court should have taken these issues into account, we now

consider whether this error requires that we reverse the trial court’s order

denying Appellant’s motion for protective order.

       “[I]n Pennsylvania, there is a well-established balancing test that must

be satisfied in order to disclose an individual’s medical information without

permission[.]” Lykes v. Yates, 77 A.3d 27, 31 (Pa. Super. 2013).

           [W]e must engage in the delicate task of weighing
       competing interests. The factors which should be considered in

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      deciding whether an intrusion into an individual’s privacy is
      justified are the type of record requested, the information it does
      or might contain, the potential for harm in any subsequent
      nonconsensual disclosure, the injury for disclosure to the
      relationship in which the record was generated, the adequacy of
      safeguards to prevent unauthorized disclosure, the degree of need
      for access, and whether there is an express statutory mandate,
      articulated public policy, or other recognizable public interest
      militating toward access.

Buckman, 54 A.3d at 961 (quoting Stenger v. Lehigh Valley Hosp. Center,

609 A.2d 796 (Pa. 1992)).

      In considering whether the Smiths should have access to this

information, we first point out that they have articulated no specific need for

it. According to the Smiths, they have asserted a negligence claim against

Appellants for their conduct in March and April 2015. See The Smith’s Brief in

Opposition to Motion for Protective Order, 10/19/2018, at 5. The Smiths go

on to assert that Appellants’ conduct in caring for Megan Smith was so reckless

as to give rise to their claim for punitive damages. Id. at 7.     The Smiths

primarily focus their argument on their need for information about Megan

Smith’s medical condition, not about why they need three years worth of

medical information related to other patients at AWC. Id.       Based on the

foregoing, we conclude that the Smiths have utterly failed to satisfy us that

they indeed need the information they requested. Moreover, the information

requested is undoubtedly sensitive medical information. We see no reason

that such private information should be disclosed when the Smiths have

articulated no compelling reason for needing it. Accordingly, we conclude the


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trial court erred in denying Appellants’ motion for protective order with respect

to the three years worth of serious event reports from AWC.

       We now consider the other document subsumed within the Smiths’

discovery request. The Smiths’ requested the serious event report related to

Megan Smith’s care at AWC (Smith Report). Megan Smith is a party to this

action, and therefore clearly has consented to the disclosure of her private

medical information. Moreover, the Smith Report is clearly relevant to this

matter.     However, it is Appellants’ contention that the Smith Report is

precluded from discovery pursuant to the MCARE Act and the PRPA.

       In considering this issue, we point out that Appellants have already

disclosed a very redacted version of the Smith Report in their motion for

reconsideration. See Motion for Reconsideration, 2/19/2019, at Exhibit E.

However, Appellants continue to assert privileges pursuant to the MCARE Act

and the PRPA with respect to the Smith Report.5 On appeal, it is the Smiths’

contention that the Smith Report “is redacted to the point of irrelevancy,” and

that the privileges asserted do not apply. The Smiths’ Brief at 11.

       We decline to consider this issue in the first instance. Here, Appellants

filed both a notice of appeal and motion requesting the trial court certify this

order for interlocutory appeal.           This dual path is appropriate in these


____________________________________________
5 Appellants also attached exhibits relating to the system through which this
report was prepared and a privilege log explaining that the serious event
report is privileged under the MCARE Act. See Motion for Reconsideration,
2/19/2019, at Exhibits C, D.

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circumstances. See 20 West’s Pennsylvania Practice § 313:3 (“To the extent

that it is not clear that a particular order is appealable as a matter of right as

a collateral order, counsel has the choice of filing a notice of appeal (or a

petition for review) on the assumption that it is a collateral order, or pursuing

an interlocutory appeal by permission, on the assumption that the

requirements of a collateral order will not be found, or both. Although pursuit

of both routes likely will cause confusion and consume unnecessary lawyer

and court time, it may be the only way to protect the right to an immediate

appeal.”). However, it is clear that more information is now available to the

trial court, and the trial court abused its discretion by not determining in the

first instance whether Appellants have appropriately asserted a privilege

related to the MCARE Act or PRPA. It was the trial court’s position

        that in Appellants’ original motion for a protective order,
        [Appellants] failed to aver, let alone prove, [they have satisfied
        the requirements of the MCARE Act6]. For example, [Appellants’]
        original motion is remiss of any averment that the serious event
        report was made at the request of AWC’s patient safety
        committee. Without such proof, [Appellants] did not sustain their
        burden, and [the trial court] could not enter a protective order.


____________________________________________
6   According to the trial court,

        [t]he specific language of the MCARE Act required [Appellants],
        when seeking their protective order, to provide that these serious
        event reports (1) were solely created in order to comply with
        reporting requirements, (2) arose from a matter reviewed by a
        patient safety committee, and (3) were not otherwise available
        from an original source. 40 P.S. § 1303.311(a).

Trial Court Opinion, 3/18/2019, at 3.

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Trial Court Opinion, 3/18/2019, at 4.

      Appellants subsequently provided additional information, including a

privilege log specifically setting forth the privilege, as well as additional

information about the report and reporting system. “[T]he trial court is in the

best position to weigh fairly the competing needs and interests of parties

affected by discovery.” Stenger, 554 A.2d at 960 (quoting Seattle Times

Co. v. Rhinehart, 467 U.S. 20, 33 (1984)). Thus, we vacate the portion of

the order denying the motion for protective order regarding the Smith Report

and remand for the trial court to take any actions it deems appropriate to

make this determination in the first instance.

      Order reversed in part and vacated in part.         Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/19




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