Court Precludes Discovery From Grand Rounds Conference by Peer Review Committee in Med Mal Case

In the case of Houwelingen v. Milton S. Hershey Medical Center, No. 1:22-CV-01388 (M.D. Pa. Aug. 21, 2024 Wilson, J.), the court denied a Motion to Compel in the medical malpractice case.

At issue was the discoverability of a PowerPoint presentation from a grand round conference.

According to the Opinion, a grand round conference involves patient-specific presentations at a medical facility which include the retrospective review of the care those patients received. Grand round presentations are used to evaluate the quality and efficiency of the healthcare those patients received and also review how to improve such treatment.

The court ruled, after an in camera review, that the Defendant hospital’s grand rounds PowerPoint presentation was protected from discovery under Pennsylvania Peer Review Protection Act.

In so ruling, the court noted that protected peer review committees need not specifically have the words “peer review” in their title, nor must they limit themselves to solely conducting peer review functions, in order to secure the protections of the act.

The court noted that the patient discussion portions of the grand rounds presentations involved professional healthcare providers assessing and critiquing the care provided by other such professionals.

The court also noted that the fact that the participants in the meeting received continuing medical education credits did not preclude a finding that the information sought in discovery was afforded the protection of Peer Review Act.

Anyone wishing to review this decision may click this LINK.

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.  

Court Rules That Peer Review Documents Sought In Medical Malpractice Action are Discoverable

In the case of Lahr v. Young, No. 2021-C-0010 (C.P. Leh. Co. Oct. 3, 2022 Caffrey, J.), the court ruled that patient safety reports that the Plaintiff sought in discover from the Defendants in this medical malpractice action were solely prepared for compliance with the Medical Care Availability and Reduction of Error Act reporting requirements. 

The court noted that the Peer Review Protection Act grants qualified immunity for healthcare providers participating in a peer review process and establishes an evidentiary privilege applicable to peer review proceedings to protect the process which is designed to improve the practice of medicine.

However, the court noted that these documents were not immune from discovery because they did not arise out of matters reviewed by a patient safety committee.  It was emphasized that the documents at issue consisted of information that was otherwise available from original sources.  As such, the court vacated a prior Order and issued a new Order granting discovery.

The court granted this Motion after an in-camera review of the documents at issue.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 6, 2022).

Source of image:  National Cancer Institute on www.unsplash.com.

"Psychological Autopsy" Report Related to Inmate Suicide Ruled Discoverable In Case Against Prison

In the case of Williams v. The GEO Group, Inc., No. 396 E.D.A. 2021 (Pa. Super. Aug. 24, 2022 Dubow, J., McLaughlin, J., and King, J.) (Op. by McLaughlin, J.), the court affirmed the trial court’s granting of a Plaintiff’s Motion to Compel discovery of a “psychological autopsy” report that the Defendant prepared after a prison inmate’s suicide.

This case arose out of the Plaintiff's decedent's suicide while an inmate in a private prison owned by the Defendant.    

In discovery, the Defendant had provided the Plaintiff with all requested documentation except a report called a "psychological autopsy."  The Defendant claimed that the document was protected as being privileged as a peer review document, as a work product document, and due to the attorney-client privilege.

The court found that this report was not privileged under the Peer Review Act.

The court additionally found that the report was not privileged under the scope of Pa. R.C.P. 4003.5 and was relevant under Pa. R.C.P. 4003.1.  As such, the appellate court affirmed the trial court's granting of a motion to compel the production of the report at issue.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 15, 2022).

Source of image:  Photo by Rodnae Productions on www.pexels.com.

Patient Safety Reports Ruled Admissible in Medical Malpractice Case

In the case of Lahr v. Young, No. 2021-C-0010 (C.P. Lehigh Co. June 17, 2022 Caffrey, J.), the Court ruled that Defendants failed to demonstrate the certain patient safety reports generated by the medical providers while Plaintiff was in hospital to give birth were immune from discovery in this medical malpractice suit under either the Peer Review Protection Act or the privilege afforded by the Medical Care Availability and Reduction Error Act. The court granted Plaintiff’s Motion to Compel.

Anyone wishing to review this decision, may click this LINK


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 30, 2022).

Source of images: www.pexels.com.

Trial Court Addresses Peer Review Privilege Claimed by Hospital

In the case of Limprevel v. Children’s Hospital of Philadelphia, No. 18082309 (C.P. Phila. Co. July 19, 2021 Foglietta, J.), the court found that a Defendant hospital failed to demonstrate that documents identified in its privileged log in this medical malpractice case were protected under the Peer Review Protection Act where the evidence illustrated that those documents were not in fact produced for a peer review.

In this Rule 1925 Opinion, the trial court recommended that the Superior Court affirm its Discovery Order.

According to the Opinion, this medical malpractice case arose out of an outbreak of an adenovirus in the neonatal intensive care unit in the Children’s Hospital of Philadelphia in 2016. The hospital medical director began an investigation into the outbreak. 

In this case, the Plaintiff sought certain discovery from the hospital, including materials relative to the notice provided to the medical director after receiving notification of the outbreak. 

The trial court ordered the hospital to produce certain documents and unredacted versions of other documents. The hospital filed this appeal, which prompted this Rule 1925 Opinion by the trial court. 

As stated, the court ruled that the documents at issue were discoverable because the hospital had failed to establish that the documents at issue were created for purposes of a peer review. As such, the court found that the peer review privilege did not apply.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 5, 2021).

Source of image:  Photo by Karolina Grabowska on Unsplash.com.

Notable Pennsylvania Supreme Court Decision on Scope of Peer Review Privilege (From August, 2021)

In the case of Leadbitter v. Keystone Anesthesia Consultants, No. 19 WAP 2020 (Pa. Aug. 17, 2021)(Op. by Saylor, J.)(Wecht, J., Concurring), the Pennsylvania Supreme Court issued a long-awaited decision relative to the scope of the Peer Review Protection Act.

In its decision, the court held that a hospital’s credentials committee qualified as a “review committee” for purposes of the Peer Review Protection Act to the extent it undertook peer reviews.

The Pennsylvania Supreme Court additionally held that the Federal Healthcare Quality and Improvement Act of 1986 protected from disclosure the responses provided by the National Practitioner Databank to queries submitted to it, regardless of any contrary state law.

This matter arose out of a medical malpractice action. The Plaintiff sought the credentialing file of a certain doctor.  The Plaintiff was seeking this information to support their claim that the hospital’s credentialing was inadequate and allegedly led to the injuries sustained by the Plaintiff during surgery.

During the course of discovery, the hospital, while providing portions of the credentialing file, refused to disclose certain documents that contained evaluations prepared by other practitioners of the Defendant doctor’s performance, as well as responses to queries submitted to the National Practitioner Databank.

After the Plaintiffs filed a Motion to Compel in this regard, these issues worked their way up the appellate ladder to the Pennsylvania Supreme Court’s decision summarized here.

The majority Opinion in the Pennsylvania Supreme Court Ledbitter noted that the Peer Review Protection Act privilege only applies to a “review committee,” which is a committee engaging in peer review. However, the Pennsylvania Supreme Court agreed with the hospital that a credentials committee is a “review committee” to the extent that it reviewed the quality and efficiency of care provided by a healthcare practitioner.

On the Federal Healthcare Quality and Improvement Act issues, the Pennsylvania Supreme Court found that the language of the statute and the purpose of the statute supported the hospital’s position that responses to the queries submitted to the National Practitioner Databank are privileged and that federal privilege trumps state law that would otherwise permit disclosure of that information.

Anyone wishing to review a copy of the Majority Opinion for this decision may click this LINK.  The Concurring Opinion by Justice Wecht can be viewed HERE.


I send thanks to Attorney Laura A. Endler, counsel for the Geisinger Health System, for bringing this case to my attention.

Source of image:  Photo by Hush Naidoo on Unsplash.com.

Peer Review Privilege for Hospital's Documents Reviewed

In the case of Gill v. Children’s Hospital of Philadelphia, No. 180900385 (C.P. Phila. Co. July 19, 2021 Foglietta, J.), the court addressed a Defendant hospital’s appeal of its Discovery Order granting the Plaintiff’s Motion to Strike the hospital’s privilege objections related to hospital documents and powerpoint presentations that were created following an outbreak of a virus in the neonatal intensive care unit.

The Defendants argued that the Peer Review Protection Act and the Medical Care and Availability and Reduction of Error (MCARE) Act served to protect from discovery the documents that the Plaintiff had requested in discovery.

In this Rule 1925 Opinion issued by the trial court, the trial court disagreed with the Defendant’s arguments.

The trial court noted that the creation date and the content of the hospital’s documents at issue indicated that they were not protected by the peer review privilege. The court also noted that the hospital had already disclosed some of the information at issue to third parties, which served to waive any claimed privilege.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 7, 2021).

Source of image:  Photo by National Cancer Institute on Unsplash.com.

Claims for Treble Damages and Attorney's Fees Dismissed in PRO Case

In the case of Stoner v. Erie Ins. Exchange, No. 2019 - CV -6978 (C.P. Dauphin Co. June 11, 2020 Cherry, J.), the court granted the carrier’s motion for partial judgment on the pleadings and dismissed a Plaintiff’s claims for treble damages and attorney’s fees in a PRO case.

According to the Opinion, this matter involved a PRO case filed by a chiropractor in Dauphin County. The chiropractor sought the payment of its medical fees from this First Party carrier after the medical benefits were stopped following a peer review. The chiropractor asserted that the peer review process was improperly instituted by the carrier. The Complaint also sought attorney’s fees and treble damages. 

The carrier filed a Partial Motion for Judgment on the Pleadings seeking to dismiss the claims for attorney’s fees and treble damages. The carrier asserted that, as a matter of law, a plaintiff cannot recover treble damages or attorney’s fees based upon the carrier’s decision to implement the peer review process.

The Plaintiff claimed, in part, that such damages were recoverable because he was seeking them based upon the carrier’s conduct before the PRO referral. 

The trial court judge in this Stoner case reviewed other cases on the issues presented and, despite the fact that another judge of the same Dauphin County Bench had previously ruled differently, decided to grant the carrier’s motion and thereby dismissed the claims for treble damages and attorney’s fees.

Anyone wishing to review this decision may click this LINK

I send thanks to Attorney Candace N. Edgar of the Camp Hill, PA office of Margolis Edelstein for bringing this case to my attention.

Pennsylvania Superior Court Addresses Discoverability of Documents in a Medical Malpractice Case

In the case of Ungurian v. Beyzman, No. 298 MDA 2019 (Pa. Super. April 28, 2020 Dubow, J., Lazarus, J., Stabile, J.), the court affirmed a trial court’s granting of a Motion to Compel the production of documents in a medical malpractice case that the Defendant had asserted were protected from production in discovery by the Patient Safety Quality Improvement Act and/or the Peer Review Protection Act.

The court ruled that the documents that the Plaintiff sought were not protected by the patient safety or peer review privilege. 

The court reiterated the rule that, to establish a patient safety work product protection in terms of documents, a defendant must produce sufficient facts to show that it prepared the document for reporting to a patient safety organization and also actually reported them to the patient safety organization. 

Here, the court found that the Defendant did not allege a connection to the patient safety organization and, therefore, failed to establish a right to confidentiality. 

The court also noted that the Defendant additionally admitted that another document existed outside of the patient safety evaluation system utilized by the hospital, which resulted in the Defendant forfeiting the privilege asserted with respect to that document. 

The court found that the Defendant's assertion of the peer review privilege failed because the Defendant did not identify members of the relevant review committees at issue. The court also noted that a document produced pursuant to an event reporting policy was an event report and not a peer review report. The court additionally emphasized that a peer review must be conducted by professional healthcare providers. 

In this matter, the court found that the Defendant did not establish that the individuals who conducted the review qualified under this rule of law to allow for any privilege to apply. 

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Eastern Federal District Court Takes a Closer Look at Interplay Between First Party Claims and Bad Faith Claims

The issue of bad faith claims in the first party benefits lawsuits was reviewed by the Eastern Federal District Court in the case of Shea v. USAA, No. 17-4455 (E.D. Pa. July 25, 2018 Surrick, J.).  The issues came before the court on the carrier's motion to dismiss.

Following the insured's involvement in a motor vehicle accident, the insured began to receive the benefit of her $100,000 in first party medical coverage under her own policy.  At some point after a peer review, the carrier stopped the payment of the benefits.  The Plaintiff filed a breach of contract claim, alleging violations of 75 Pa.C.S.A. Section 1797, and asserted bad faith conduct on the part of the carrier.

The court noted that there are conflicting Pennsylvania state and federal court decisions on the crucial issue of whether the MVFRL's provisions pertaining to peer reviews of first party medical benefits supplants claims for breach of contract, bad faith, and consumer protection law violations.  It was noted that, to date, the Pennsylvania Supreme Court has not addressed the proper interaction of these causes of action in the first party context.

In his decision in this Shea case, Judge R. Barclay Surrick of the Eastern District Federal Court lays out the issues and the law in great detail and in an easy-to-follow fashion.

The court rejected the defense contention that the MVFRL's peer review process preempts the existing common law remedy for breach of an insurance contract's implied covenant of good faith and fair dealing.  The Court ruled that 75 Pa.C.S.A. Section 1797, which lays out the framework for first party benefits, does not prohibit an action for damages arising from an alleged breach of the insurance contract's implied covenant of good faith and fair dealing where those damages are otherwise available under the facts alleged.

In reviewing the conflicting line of cases on the issue of whether a Section 1797 peer review claim can be asserted in the same case as a Section 8371 bad faith claim, the Shea court elected to side with what it termed as a growing number of cases that have fallen on the side of allowing both claims to be pled in a single action.  In the end, the court in Shea held that, where it is alleged that a carrier failed to follow the mandates of Section 1797, a plaintiff's remedies are not limited to those stated under Section 1797, but could also include the remedies allowed under the bad faith statute found at 42 Pa.C.S.A. Section 8371.

In the end, the court denied the carrier's motion to dismiss.

Anyone wishing to review this decision may click this Memorandum Opinion may click this LINK.

I send thanks to Lee Appelbaum, writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog, and from the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this case to my attention.

Pennsylvania Supreme Court to Tackle Discoverability of Peer Review Documents in Context of Med Mal Case

On July 7, 2016, the Pennsylvania Supreme Court granted allocatur in the case of Reginelli v. Boggs, to address the issue of whether a hospital can invoke privilege with regards to peer review documents prepared by an outside contractor and, if so, whether that privilege is waived when the third party shares those documents with hospital administration.  

A Superior court panel had previously ruled in a non-precedential Opinion in this case that the peer review documents created by a third party were not protected under the Peer Review Protection Act, thus affirming a Washington County trial court judge’s ruling. 

I send thanks to Attorney Thomas G. Wilkinson, Jr. of the Philadelphia office of Cozen O’Connor for bringing this notable news to my attention.   

Recent Medical Malpractice Decision of Note by Judge Terrence R. Nealon Reviewed in The National Law Review

The Vaccaro v. Scranton Quincy Hospital decision regarding discovery of internal hospital documents in a medical malpractice case issued by Judge Terrence R Nealon of the Lackawanna County Court of Common Pleas which was the subject of a December 17, 2015 post here on the Tort Talk Blog has also been reviewed by The National Law Review.

To review that January 27, 2016 National Law Review article entitled Peer Review Protection Act Does Not Shield All Internal Hospital Documents" written by Michael C. Ksiazek of Stark & Stark click this LINK.

Judge Nealon of Lackawanna County Rules on Discoverability of a Doctor's Credentials File Materials in Med Mal Case

In the recent Opinion in the case of Vaccaro v. Scranton Quincy Hospital Company, LLC, et.al., No. 2014-CV-7675 (C.P. Lacka. Co. Dec. 8, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed discovery issues raised by the Plaintiff in a medical malpractice action.  

In this matter, the Plaintiff sought to compel the Defendant hospital to produce the medical malpractice litigation history records that the hospital obtained relative to the Defendant Obstetrician in connection with the Obstetrician’s initial application or clinical privileges.  The Plaintiff also sought the production of the bi-annual “ongoing professional practice evaluation” reports prepared by the hospital with respect to the Defendant-Obstetrician.  Also at issue under the motion to compel, were two (2) warning letters that the hospital’s Chief Medical Officer and Medical Records Consultant forwarded to the Defendant-Obstetrician regarding delinquent medical records.  

The hospital contended that these “credentials file” materials were protected from discovery by the Peer Review Protection Act.  

Judge Terrence R. Nealon
Lackawanna County

After providing a thorough review of the Peer Review Protection Act in conjunction with the rules of discovery, Judge Nealon generally noted that, under the Peer Review Protection Act, records that are generated or maintained by hospitals in ordinary course of business, rather than as part of a peer review or quality assurance process by hospital “review organization,” are not shielded from discovery. 

Accordingly, the court ruled that the Obstetrician’s malpractice claims information compiled by the hospital in connection with the Obstetrician’s initial application for clinical privileges was not protected from discovery.   The court found that these documents were not prepared by or submitted to the Peer Review or a Patient Safety Committee.  The Court also noted that these documents were relevant to the Plaintiff’s corporate liability claim against the hospital for allegedly failing to select and retain only competent physicians.  

Judge Nealon also ruled that the two (2) written warnings prepared by the Medical Records Department representatives addressed to the Obstetrician did not involve the disclosure of peer review information that was developed as part of a quality assurance examination and, as such, these records were also found to be discoverable.  

The Court generally noted that the malpractice history materials and medical records warnings did not come with a blanket protection from the Peer Review Act merely by being placed in the Obstetrician’s credentials file.

The Court did otherwise also rule that the bi-annual professional practice evaluations which were submitted to the hospital’s Quality Management Department for the express purpose of assessing professional competence and improving the quality of patient care, and which were specifically classified as confidential and privileged peer review information, were immune from discovery under the Peer Review Protection Act.

Overall, the Plaintiff's motion to compel was granted in part and denied in part.

Anyone desiring a copy of this Opinion may click this LINK.