Wednesday, January 11, 2023

Superior Court Analyzes Discoverability of Peer Review Documents in Medical Malpractice Case

In the case of Sanders v. Children’s Hosp. of Phila., No. 646 EDA 2021 (Pa. Super. Nov. 22, 2022 Bowes, J., McLaughlin, J., and Stabile, J.) (Op. by Bowes, J.) (McLaughlin, J., concurring/dissenting), the Pennsylvania Superior Court affirmed in part and reversed in part a trial court’s decision relative to a Defendant hospital’s challenges on alleged privileged documents in a Plaintiff’s medical malpractice wrongful death and survival action. The appellate court found that most of the documents and reports at issue were protected from discovery by the Peer Review Protection Act or the Medical Care Availability and Reduction of Error Act (MCARE Act).

According to the Opinion, the court involved twenty three (23) infants at the hospital who had allegedly contracted an adeno-virus in the hospital’s NICU. Testing allegedly revealed the presence of the virus on equipment used for an eye exam and the virus was allegedly transmitted to patients by doctors touching the equipment and then touching the patients.

A doctor who led the investigation into the matter reported to the Patient Safety Committee and held “safety huddles” using powerpoint presentations with members of the Infection Prevention and Control Department and the NICU doctors and nurses. Several conferences were also held by the Defendant medical providers as a result of which a root cause analysis report was created. The investigating doctor also published an abstract and an article about the method of transmission.

The Plaintiff sought documents at issue in discovery.

On appeal, the court ruled that certain documents were admissible and certain documents were privileged. In the opinion, the court provided a nice overview of the application of the Peer Review Protection Act and the Medical Care Availability and Reduction of Error Act.

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring and Dissenting Opinion by Judge McLaughlin can be viewed HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 13, 2022).  I also send thanks to Attorney Peter Faben of Lancaster, PA for bringing this case to my attention as well.

UPDATE:  In more recent developments in this matter, the Plaintiff filed a Motion for re-argument  en banc, which was granted, causing the above initial decision to be withdrawn.  Thereafter, the case was resolved prior to the on en banc arguments.  As such, the case was concluded without any decision from the full court.  

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