Are Your Performance Reviews Litigation Protected?

Are your physician performance reviews confidential or are they in danger of being discovered during litigation?

A recent decision by the Pennsylvania Supreme Court suggests that the answer may depend on a number of different factors, including the employment status of the person being evaluated, the entity conducting the evaluation, and the purpose of the assessment being conducted.

Value-Based Purchasing

Value-based purchasing and pay for performance programs are increasingly popular. Medicare and Medicaid and many private insurers have implemented programs that reimburse hospitals based on quality of treatment—including, for example, patient reviews of their care. As healthcare systems have become more outcome oriented, information about specific physician performance, particularly when collected through methods including peer evaluation may have unintended consequences.

When physicians participate in these peer review programs, they may assume that the information provided within these reviews will be kept confidential in the event of a lawsuit. They may even believe that this information is protected by the “peer review privilege.”

Peer Review Privilege

The peer review privilege was created to foster candid discussion about medical care with an overall goal of improving healthcare. A quality peer review program requires that parties are able to openly discuss issues without fearing that the information will be made public. The documents that are the product of these programs often include frank assessments about what was done right and wrong in medical care. The peer review privilege was intended to alleviate worry about the potential liability and negative consequences that evaluating colleagues may create.

Indeed, each of the 50 states has enacted some form of medical peer review statute, which offer varying degrees of protection to the documents that are used by a peer review committee. Similarly, the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) provides a peer review privilege when claims are subject to federal jurisdiction.

The scope of what is protected by the peer review privilege varies considerably from state to state. Some states have narrow statutes that limit the protected information to the peer review committee’s formal proceedings and internal records. These jurisdictions do not want information to be able transformed into protected information because it is reported at a later point in time.

Other states interpret the privilege statutes more broadly, including incident reports within the scope of the privilege. These jurisdictions reason that candid incident reports are necessary to the development of the patient safety goals of the peer review process.

Limitations on Peer Review Privilege

In a recent decision by the Pennsylvania Supreme Court, Reginelli v. Boggs, the justices ruled 4-3 that peer review documents are covered under the Peer Review Protection Act (only if they are generated by organizations that are regulated by the state to operate in the healthcare industry. The Pennsylvania peer review privilege, Peer Review Protection Act, 63 P.S. §§ 425.1-425.4 (“PRPA”), protects the “proceedings and documents of a review committee” conducting peer review activities by professional health care providers in conformity with its provisions.

The court had a opportunity to review this privilege when a hospital and a staffing company claimed that the peer review evidentiary privilege prevented the disclosure of the performance file of Marcellus Boggs, M.D. Dr. Boggs was an employee of Emergency Resource Management, Inc. (ERMI) but worked in the Monongahela Valley Hospital (MVH) emergency room. Dr. Boggs’ performance file was prepared and maintained by his supervisor Brenda Walther, M.D., the director of MVH’s emergency department. Dr. Walther was also an employee of ERMI.

In 2011, Eleanor Reginelli was brought into MVH’s emergency room for reported gastric discomfort and was treated by Dr. Boggs. Days after being discharged, Reginelli suffered a heart attack. Reginelli and her husband filed a lawsuit against Dr. Boggs, MVH, and ERMI, alleging that Dr. Boggs was negligent in his treatment, that MVH was liable for corporate negligence, and MVH and ERMI were vicariously liable for the actions of their agents or employees.

The Reginellis filed a motion to compel the discovery of Dr. Boggs’ performance file. MVH argued that the performance file was protected under the PRPA because it was created to review the services provided in their emergency room. The trial court ruled that the file was not covered by the PRPA and granted the Reginelli’s motion to compel.

Dr. Boggs, MVH, and ERMI appealed the decision to the Superior Court. The Superior Court agreed with the trial court and concluded that ERMI was not entitled to claim the PRPA evidentiary privilege because it was an independent contractor and MVH could not claim the privilege because it did not create or maintain the file. The court also noted that even if either party could claim the privilege, it had been waived when ERMI shared the file with MVH.

When the parties appealed the decision of the Superior Court, the Pennsylvania Supreme Court looked to the statutory language of PRPA. The court examined the definitions of “professional health care provider” a “review organization” and the language of the evidentiary privilege, which states, “The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee…”

The court determined that ERMI did not fit within the definition of “professional health care provider.” The PRPA defines a “professional health care provider” as:

(1) individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:

(i) a physician;
(ii) a dentist;
(iii) a podiatrist;
(iv) a chiropractor;
(v) an optometrist;
(vi) a psychologist;
(vii) a pharmacist;
(viii) a registered or practical nurse;
(ix) a physical therapist;
(x) an administrator of a hospital, nursing or convalescent home or other health care facility; or
(xi) a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility; or

(2) individuals licensed to practice veterinary medicine under the laws of this Commonwealth.

ERMI argued that it was close enough to a “physician” to qualify because it is a “physician organization comprised of hundreds of individual emergency medicine physicians…that exists specifically to provide emergency medical services” and that it qualified as a corporation operating a hospital because it is a corporation that “provides staffing and Emergency Services to hospitals.” The court rejected both arguments.

Writing for the majority, Justice Christine Donohue stated, “No principled reading of the definition of “professional health care provider” permits any entity to qualify if it is not approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of Pennsylvania. As such, while ERMI is an organization that is comprised of hundreds of “professional health care providers” (namely, physicians), it is not itself a “professional health care provider” because it is unregulated and unlicensed.”

The court also noted that PRPA’s evidentiary privilege only applies to proceedings and documents of a review committee, which had a specific definition. The court noted that Dr. Walther was not a member of the hospital’s peer review committee and that PRPA is limited to the type of review that occurs when evaluating of the “quality and efficiency of services ordered or performed’ by a health care provider. The court found that while Dr. Walther may qualify as a review organization that conducted a review of physician’s credentials, the PRPA did not protect that category of review.

Judge David Wecht filed a dissent, arguing that the majority opinion was contrary to the intent of the PRPA. Wecht said, “We have noted, and the Majority does not dispute, that the Act aims to encourage full and frank assessments of health care providers by other health care providers who are best qualified for that task. Whether the licensure, approval, or regulation requirement that undisputedly applies to MVH and its emergency department applies by extension to the contractor through its promise to ensure that the hospital complies with all state requirements seems beside the point: to exclude ERMI on the basis that it is not a professional health care provider under the expansive statutory definition would create a circumstance in which application of the peer review privilege to proceedings associated with a hospital department depends solely upon whether the hospital operates its own department or contracts with an outside corporate entity to do so.”

When Does the Peer Review Privilege Apply?

While Reginelli v. Boggs is one case under Pennsylvania law, it is a reminder that the peer review privilege does not automatically apply to all physician performance reviews. When considering whether a document will be protected by the privilege it is important to review the governing statute. Some factors to consider:

• The employment status of the person being evaluated – Does the physician in question work directly for the hospital or are they an independent contractor or working for another organization?
• The entity conducting the evaluation – Does the privilege only apply to specific classes of organizations? Does the person or committee conducting the evaluation fit within the protected class?
• The purpose of the assessment being conducted – Was the assessment conducted as a way to evaluate performance by peers or by a hiring committee or for financial compensation?