Reginelli v. Boggs’ Narrowing of Peer Review Privilege in Pennsylvania Is Here to Stay: Leadbitter v. Keystone Anesthesia Consultants
St. Clair Hospital (the “Hospital”) appealed an order granting James and Tammy Leadbitter’s Motion to Compel, which required the Hospital produce the complete credentialing and privileging file of defendant Dr. Carmen Petraglia.1
In June 2014, Dr. Carmen Petraglia (“Dr. Petraglia”) applied for appointment to the medical staff and orthopaedic surgery clinical privileges at the Hospital.2 In consideration of his application, the Hospital reviewed a number of documents, including professional opinions relating to his competence, a Professional Peer Review Reference and Competency Evaluation, which contained evaluations of his performance submitted by other physicians, and an Ongoing Professional Practice Evaluation of St. Clair Hospital Summary Report, which contained performance-related data compiled by the Hospital.3 After reviewing these documents, the Hospital’s Credentialing Committee recommended the Hospital grant clinical privileges to Dr. Petraglia, which the Hospital did.4 Five months later, Dr. Petraglia performed two spinal surgeries on the plaintiff, James Leadbitter, after which Mr. Leadbitter suffered a series of strokes, resulting in permanent damage to his brain and extremities.5
James Leadbitter and his wife (“Plaintiffs”) filed complaints in Pennsylvania state court, alleging various theories of negligence against the Hospital, Dr. Petraglia, and others.6 In May 2017, Plaintiffs requested the Hospital produce Dr. Petraglia’s “complete credentialing and/or privileging file.”7 In response, the Hospital redacted portions of the credentialing file it claimed were privileged and produced only those documents it deemed discoverable.8 Plaintiffs filed a Motion to Compel production of Dr. Petraglia’s complete and unredacted credentialing file, arguing that they were entitled to the documents under the Pennsylvania Supreme Court’s decision in Reginelli v. Boggs, 645 Pa. 470, 181 A.3d 293 (2018).9 In its response, the Hospital argued that the credentialing file was protected from discovery under Pennsylvania’s Peer Review Production Act (63 P.S. § 425.1, et seq.) (“PRPA”) and the Health Care Quality Improvement Act (42 U.S.C. § 11101) (“HCQIA”).10
The trial court granted Plaintiffs’ Motion to Compel and ordered the Hospital to produce Dr. Petraglia’s unredacted credentialing file. The Hospital appealed and argued (1) the professional opinions and performance evaluations relating to Dr. Petraglia’s competence and his Ongoing Professional Practice Evaluation are protected from disclosure under PRPA, and (2) responses to statutorily required inquiries of the National Practitioner Data Bank (“NPDB”) are protected from disclosure under the HCQIA and 45 C.F.R. § 60.20(a) (stating that information reported to the NPDB is confidential and shall not be disclosed except in certain circumstances.)11
Professional Opinions, Performance Evaluations, and Ongoing Professional Practice Evaluation Not Protected Under Pennsylvania Law
The Hospital argued that the professional opinions and performance evaluations of Dr. Petraglia are peer review documents and therefore are not discoverable under PRPA.12 The Superior Court of Pennsylvania agreed that these documents are peer review documents as defined in PRPA because they were prepared by professional health care providers and the documents evaluated the quality and efficiency of services ordered or performed by Dr. Petraglia.13 However, the court stated that PRPA’s application must be analyzed in light of the Supreme Court of Pennsylvania’s holding in Reginelli.14
In Reginelli, the Supreme Court of Pennsylvania held that the peer review privilege only applies to peer-reviewed documents of a “review committee” and not to the documents of a “review organization.”15 The Reginelli court stated that PRPA defines a “review committee” as “any committee engaging in peer review” and a “review organization” as “any hospital Board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.”16 Further, the Reginelli court concluded that credentialing review is not “entitled to protection from disclosure under PRPA’s evidentiary privilege” because “[r]eview of a physician’s credentials for purposes of membership (or continued membership) on a hospital’s medical staff is markedly different from reviewing the ‘quality and efficiency of service ordered or performed’ by a physician when treating patients.’”17 Stated simply, the Supreme Court of Pennsylvania held that credentialing documents were not entitled to the peer review privilege under Pennsylvania law.
“[r]eview of a physician’s credentials for purposes of membership (or continued membership) on a hospital’s medical staff is markedly different from reviewing the ‘quality and efficiency of service ordered or performed’ by a physician when treating patients.’” – Regnelli court
Consequently, following Reginelli, in Estate of Krappa v. Lyons, the Superior Court of Pennsylvania held that the PRPA privilege does not shield evaluations generated by a credentialing committee from disclosure.18 Here, the court found that the Hospital’s credentialing committee was a “review organization” because it reviewed the professional qualifications and activities of Dr. Petraglia when considering his application for privileges at the Hospital.19 Thus, the PRPA privilege did not apply and the credentialing file was not protected from disclosure.20
NPDB Query Responses
Under the HCQIA, hospitals are required to report certain information to the NPDB and request information from the NPDB at the time a physician applies for privileges and every two years thereafter.21 As a result, the court stated that the purpose for which the information is used is credentialing.22 While the HCQIA protects information reported pursuant to the HCQIA as confidential, it does not prevent the disclosure of such information by a party that is authorized to make the disclosure under state or federal law. As the court concluded in the first issue, professional evaluations in Dr. Petraglia’s credentialing file are not protected from disclosure. As a result, because the HCQIA’s confidentiality provisions follow state law, the court found that the HCQIA does not prohibit the production of the NPDB query responses.23
This case marks the third time Pennsylvania courts have held that documents created for the purpose of credentialing are not entitled to peer review protection under PRPA, signaling that Reginelli’s narrow interpretation of the law will have a lasting impact on the credentialing and privileging process in Pennsylvania. What is yet to be seen is whether, and to what extent, this decision will corrupt the credentialing process by chilling evaluators’ candor, as suggested by Reginelli’s dissent.24
1 Leadbitter v. Keystone Anesthesia Consultants, No. 1414 WDA 2018, 2020 WL 702486, at *1 (Pa. Super. Ct. Feb. 12, 2020).
5 Leadbitter, at *2.
10 Leadbitter, at *2.
11 Id. at *3.
15 Leadbitter, at *3 (citing to Reginelli at 305-306).
16 Id. at *4 (citing to Reginelli at 305).
17 Leadbitter, at *4.
18 Id. at *4; 211 A.3d 869, 875 (Pa. Super. 2019).
19 Leadbitter, at *4.
21 Id. at *5 (citing 42 U.S.C. §§ 11133, 11135).
22 Id. at *5.
23 Id. 24 Reginelli, at 315 (Wecht, J., dissenting).