J-A15039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM KATES AND BEVERLY KATES,              IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
Appellees

                   v.

DOYLESTOWN HOSPITAL, ET AL.,

Appellant                                          No. 2718 EDA 2013


              Appeal from the Order Entered August 15, 2013
              In the Court of Common Pleas of Bucks County
                    Civil Division at No(s): 2011-02516


BEFORE: PANELLA, LAZARUS AND JENKINS, JJ.

MEMORANDUM BY JENKINS, J.                        FILED AUGUST 22, 2014



August 15, 2013 directing the Hospital to provide various records to

                                                                       eges

that the documents are privileged under the Peer Review Protection Act



affirm.

      The Kates allege in this action that various medical defendants,

including the Hospital, failed to

During discovery, the Kates demanded that the Hospital produce documents

                                    Benner, reviewed in preparation for her

                                                                        ee,



                                     1
J-A15039-14




compliance with accreditation by the Joint Commission on Accreditation of



     On April 11, 2013, the Kates filed a motion to compel the Hospital to

produce the documents in dispute. In response, the Hospital submitted the

following documents under seal to the court for in camera review:

                                                 spital personnel had
     completed the American Stroke Association's NI1-1 Stroke Scale
     program.


     made to the night hawk program (which deals with off hours x-ray
     review).

                                 nda of the Critical Care Quality Sub-
     Committee of the Patient Safety Committee.


     Stroke Committee's Minutes, which deal with the procedures to be
     used for the operation of the stroke program.

                                                          -mail chains between
     Stroke Committee members concerning practices and procedures the
     hospital will use in the operation of its stroke program.

                                                                    deals with
     stroke and disabled patients at the hospital.

                                  -mail chains between Stroke Committee
     members and a Jefferson University administrator exchanging the
     transfer agreement (which cannot be seen) between the two hospitals.

       Documents 24-26 are email chains regarding the procedures used

     requests by one doctor to another asking for their input on the
     treatment of a patient).

                                  etting forth the topics (procedures and
     practices) the Stroke Committee will need to be prepared to discuss in
     an upcoming phone call.

                                    -2-
J-A15039-14


Trial Court Opinion, pp. 3-41.




compel. On August 15, 2013, the court ordered the Hospital to produce the

above list of documents. The Hospital filed a timely appeal from the portions



the portions of the order that permitted the Hospital to withhold several

documents from production.


       The Hospital has the right to take an interlocutory appeal of this

discovery order pursuant to the collateral order doctrine embodied in

Pa.R.A.P. 313.       Gillard v. AIG Ins. Co., 15 A.3d 44, 56 (Pa.2011)

(collateral order doctrine permits appeal from discovery order requiring

disclosure over assertion of privilege). Our standard of review over appeals

from orders interpreting the PRPA is plenary. Dodson v. DeLeo, 872 A.2d

1237, 1241 (Pa.Super.2005).


       The lone issue on appeal is whether PRPA shields from production the

documents that the trial court ordered the Hospital to produce.




quality of care, reduce mortality and keep healthcare costs within reasonable

____________________________________________


1
 To eliminate confusion, we do not list the documents that the court found
were not subject to production.



                                           -3-
J-A15039-14


bounds. Trial Court Opinion, p. 6. To achieve these goals, there must be

honest and sometimes critical internal review of medical providers by their

peers. Id. The PRPA deems many internal review documents privileged to

facilitate accurate and comprehensive internal evaluations of medical

providers.


      The trial court observed, however, that the PRPA has two important

limitations. The first limitation is that

review committee



committee engaged in peer review, including...gather[ing] and review[ing]



                 any hospital board, committee or individual reviewing the

professional qualifications or activities of its medical staff or applicants for

admission thereto     Id. Peer review, in turn, is defined in pertinent part 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,... 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

under 63 P.S. § 425.4, which provides:




                                       -4-
J-A15039-14


            Provided, however, that information, documents or
            records otherwise available from original sources are
            not to be construed as immune from discovery or
            use 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.

Id. (emphasis added).    Under this limitation, a hospital may not shield a

document from production merely by giving it to a peer review committee.

A document not derived from nor part of an evaluation or review by a peer

review committee is not privileged. Dodson, supra, 872 A.2d at 1244.


      Read together, the trial court reasoned, the two limitations provide




Court Opinion, p. 8.


      The trial court held that the documents that it ordered the Hospital to

produce do not relate to peer review. Instead, the court said, the Hospital

simply labeled them privileged without good reason:


            Peer review necessarily involves evaluating the
            quality of care provided by medical professionals or
            evaluating the qualifications of medical care
            providers. Except for those portions that we held
            could be redacted, the documents/communications
            at issue were not used or made for the
            determination of staff privileges or for credentialing

                                    -5-
J-A15039-14


              purposes. These documents/communications were
              not used exclusively for quality assurance purposes
              by the Stroke Committee and are not incorporated
              exclusively within a physician's credentialing file.
              See Dodson, supra. Furthermore, Doylestown
              Hospital cannot point to a definitive action initiating
              the peer review process prior to the time these
              documents were created.         See Mazzucca [v.
              Methodist Hospital], 47 D. & C. 3d [55,] 60
              [(Phila. Cty. 1985)]. Quite simply, the emails,
              agenda and minutes we ordered discoverable are
              non-peer     review     business      records      and
              communications that are neither used, nor generated
              by the Stroke Committee for peer review purposes.

Id., pp. 8-

procedures for the operations of its stroke program or monitoring changes

with the Joint Commission's standards [does not] constitute[] a peer review

process. . . especially if those procedures relate to discussing the Joint

                                                                        Id., pp. 9,

11.


      The court continued:


              [T]he Kates' Motion for Production of Documents
              does not request any reports, documents or
              recommendations produced by the Joint Commission
              or exchanged between the Joint Commission and
              Doylestown Hospital: (1) The Motion requests
              minutes of the Stroke Committee in 2009 (2) The
              motion requests documents reviewed by Benner
              prior to the deposition, and (3) The Motion requests
              emails between Benner and the Stroke Committee.
              Furthermore, our Order explicitly exempts any
              documents, communications or evaluations produced
              by the Joint Commission or exchanged between the
              Joint Commission and Doylestown Hospital.


                                       -6-
J-A15039-14


Id., p. 10.

      The court concluded:


              peer review procedures may overlap with the Stroke
                                 rate or related peer review
              procedures. For instance, our in camera review of
              the disputed documents helped us identify and
              protect from discovery certain portions of the Stroke
              Committee minutes that involved actual peer review.
              Document 8, item 2.a, and Document 10, item 2,
              both are minutes that detail the Stroke Committee's
              report and discussions on problems regarding the
              efficiency and quality of care provided by medical
              personnel. We allowed those portions to be redacted.
              We are reluctant, however, to extend this same
              exemption to other information relating to the Stroke
              Committee's function of setting up the Stroke
              Program's policies and procedures[,] especially if
              those procedures relate to discussing the Joint
              Commission's publically published standards of
              accreditation.

              [The] Hospital would like the PRPA's confidentiality
              provision to extend to all communications of the
              Stroke Committee as well as every document derived
              by the Stroke Committee. Permitting such a broad
              request would be a clear misuse of the PRPA's
              confidentiality provision because it would allow
              hospitals to insulate their policy making decisions
              under the guise of peer review. It is beyond the
              PRPA's plain meaning.

              Therefore, [the] Hospital did not meet its burden of
              establishing t
              confidentiality provision extends to the documents
              and communications our order requires it to disclose.



Id., p. 11.




                                      -7-
J-A15039-14


     We have carefully reviewed the record, the briefs of both parties, and

the documents that are the subject of this appeal.   We agree with Judge




     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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