Without confidentiality, the peer-review process cannot be an effective tool for improving quality of care. A case before the Supreme Court of Pennsylvania could establish rules that narrow the scope of peer-review protected materials, harming the process.
At stake in Reginelli v. Boggs, is whether the Pennsylvania Peer Review Protection Act (PRPA) privilege against legal discovery should apply when an independent contractor of a hospital reviewed the performance of a physician on the hospital’s medical staff.
How the situation unfolded
Eleanor Reginelli presented to the emergency department at Monongahela Valley Hospital (MVH) with chest and back pains. Marcellus Boggs, MD, an emergency medicine physician at MVH, ordered and interpreted the results of an electrocardiogram and blood work. He diagnosed Mrs. Reginelli with gastro-esophageal reflux disease and discharged her that day.
Five days later, Mrs. Reginelli experienced the same symptoms. An ambulance transported her to the emergency department of a different hospital where she was told she was experiencing a heart attack. She subsequently suffered permanent heart damage.
Dr. Boggs was an employee of Emergency Resource Management, Inc. (ERMI), which had been hired as an independent contractor to staff MVH’s emergency department. Mrs. Reginelli and her husband sued Dr. Boggs, MVH and ERMI for medical liability.
As part of discovery in the case, the plaintiffs deposed Brenda Walther, MD, the medical director of the MVH emergency department and an ERMI employee. Dr. Walther disclosed that she maintained a performance file on Dr. Boggs, which included peer-review evaluation required by ERMI.
The plaintiffs called on MVH to produce the evaluation file, but MVH objected based on a claim of peer-review privilege in the PRPA. The trial court ordered production of the file, finding that MVH could not claim privilege for a document it had neither generated nor maintained. On appeal, the Pennsylvania Superior Court affirmed and the case is now on appeal before the Pennsylvania Supreme Court.
An agreement for unity in providing quality care
A 2010 “Emergency Department Services Agreement” outlined the relationship and respective duties between MVH and ERMI, noting that the hospital wished to have ERMI provide certain services to facilitate the operation of the emergency department, including the provision of qualified emergency medicine physicians.
The agreement also included materials on quality improvement and peer-review. ERMI was to conduct clinical reviews and provide regular reports to the hospital for its peer-review process. Hospitals commonly use independent contractors to fulfill staffing needs, and those employees then become members of the hospital staff as well as the contractor.
ERMI is a medical practice in the specialty of emergency medicine. During the contract’s term, it was the sole provider of emergency service to MVH. Dr. Walther, the ERMI employee who served as the emergency department’s medical director, was effectively the department chairman for MVH as well.
Monitoring physician performance and sharing the results was an integral part of measuring compliance with and achieving the quality of care goals. ERMI did not make decisions independently of MVH, and MVH could unilaterally choose not to re-credential a physician when it thought that action was warranted.
Medical organizations take a stand
“Peer review is an important tool in improving the quality of health care,” said the Litigation Center of the AMA and State Medical Societies in an amicus brief defending the PRPA. “The willingness to criticize peers that an effective review process requires cannot occur without ironclad confidentiality.”
“Here, the medical director of a hospital emergency department reviewed treatment records of a department physician,” the brief said. “That is the paradigm for protected activity under the Peer Review Protection Act.”
The Superior Court erred in concluding that ERMI had destroyed any privilege that may have existed by sharing Dr. Boggs’ performance file with MVH, the brief said. This fails to recognize the cooperative nature of the MVH-ERMI agreement. MVH chose to have the person best suited to evaluate the competency of the emergency department physicians, the department’s medical director, perform the reviews.
Both Dr. Walther and Dr. Boggs worked for a third party with whom the hospital had contracted to run and staff the emergency department. “Superior Court incorrectly thought that the entity’s status as an independent contractor deprived its work product of protection,” the brief said. “Nothing in the [PRPA] imposes that rule.”
“The performance review of a hospital emergency department physician by its medical director is a peer review-protected activity,” the brief said. “It is irrelevant that the hospital had contracted with a third party to staff and run the emergency department.”
Editor’s note: In a 4–3 decision, the Pennsylvania Supreme Court in March 2018 ruled that privilege against legal discovery provided by the PRPA did not apply in this case. The court opined that a physician organization comprised of hundreds of individual emergency physicians did not qualify as a professional health care provider under PRPA because it was not “approved, licensed or otherwise regulated to practice or operate in the health care field under [Pennsylvania] law.”
In the court’s dissenting opinion, justices disagreed, saying the hospital, ERMI and Drs. Walther and Boggs were collectively responsible for ensuring proper care was delivered. They reasoned that “the well-established statutory mechanism for [ensuring proper care] is professional peer review,” and that “nothing in the PRPA suggests that sharing review material among a chain of vertically integrated providers who collectively are responsible for a given health care facility should result in waiver of that confidentiality.”
