HomeMy WebLinkAbout2020-05740
JANE BETZ, Executrix of the : IN THE COURT OF COMMON PLEAS OF
Estate of Richard M. Betz, and in : CUMBERLAND COUNTY, PENNSYLVANIA
her own right, :
Plaintiff : CIVIL ACTION—MEDICAL PROFESSIONAL
: LIABILITY ACTION
v. :
:
UPMC PINNACLE WEST :
SHORE HOSPITAL t/a; d/b/a/ :
UPMC PINNACLE HOSPITAL; :
STEPHEN DeLUCA, D.O.; :
DEVIN OLSEN, D.O.; DANIEL :
SUMKO, D.O.; TODD C. :
SHAEFFER, D.O.; BRENNA :
HOUSER, CRNA; and :
RICHARD G. EVANS, :
Defendants : NO. 2020-05740 CIVIL TERM
IN RE OPINION PURSUANT TO PA. R.A.P 1925
HYAMS, J., September 7, 2022.
This case presents the issue of whether, in discovery in a medical professional
liability action, a hospital may withhold the identity of an employee who reported facts
contrary to the hospital’s position regarding the patient’s treatment on the ground that the
employee was a whistleblower. This issue arose in the context of a motion to compel
1
deposition testimony filed by the plaintiff,which was granted to a limited extent by the
2
court in accordance with a discovery master’s report and recommendation.
From this interlocutory order, and following the court’s denial of a motion to
3
amend the order pursuant to Section 702(b) of the Judicial Code,Defendant hospital has
4
filed an appeal to the Pennsylvania Superior Court.
1
Plaintiff’s Motion To Compel the Deposition of the Author of Incident Report EV20201798812, filed
May 16, 2022 (hereinafter Plaintiff’s Motion To Compel Deposition).
2
See Order of Court, dated July 19, 2022 (Hyams, J.).
3
42 Pa. C.S. 702(b); see Order of Court, dated August 1, 2022 (Hyams, J.).
4
Notice of Appeal, filed August 12, 2022.
1
The grounds for the appeal have been expressed by the defendant in a five-page
statement of errors complained on appeal as follows:
1. The trial court erred, as a matter of law, in granting Plaintiff’s Motion To
Compel the Deposition of the Author of the Incident Report EV20201798812 and
directing the Hospital to perform a reasonable search of the system utilized by the author
of the Initial Incident/Event Report EV20201798812 with a view toward determining the
identity of the reporter, and to serve a verified report of the result of that search upon
Plaintiff’s counsel.
2. The Medical Care Availability and Reduction of Error (MCARE) Act
precludes identifying and unmasking an anonymous reporter of a serious event submitted
through hospital’s patient safety plan reporting system.
3. Section 308(a) of the MCARE Act expressly provides, “A health care worker
who reasonably believes that a serious event or incident has occurred shall report the
serious event or incident according to the safety plan of the medical facility unless the
healthcare worker knows that a report has already been made.” 40 P.S. §1303.308(a).
4. “A health care worker who reports the occurrence of a serious event or
incident in accordance with subsection (a) or (b) shall not be subject to any retaliatory
action for reporting the serious event or incident and shall have the protections and
remedies set forth . . . the Whistleblower Law.” 40 P.S. § 1303.308(c) (citing 43 P.S.
§ 1421) (emphasis added).
5. The Whistleblower Law provides three categories of protections: (1)
protection from discharge, (2) protection from discrimination, and (3) protection from
disclosure of identity. 43 P.S. § 1423.
6. At issue, Section 3(c) of the Whistleblower Law provides “Disclosure
prohibition.—An appropriate authority to which a violation of this act was reported may
not disclose the identity of a whistleblower without the whistleblower’s consent unless
disclosure is unavoidable in the investigation of the alleged violation.” 43 P.S. § 1423(c).
7. The text of Section 308 of the MCARE Act and the incorporated protections of
Section 3 of the Whistleblower Act prohibits a hospital that receives a confidential report
from discharging, discriminating against, or, absent consent, disclosing the identity of the
author.
8. Here, Report EV20201798812 was submitted to the Hospital as an anonymous
Initial Incident/Event Report pursuant to its patient safety plan, the Hospital does not
have consent to identify the reporter; therefore, the Hospital is unable to unmask the
identity of the reporter.
9. The trial court erred as a matter of law in concluding Section 308 of the
MCARE Act and the incorporated protections of the Whistleblower Law did not provide
the author of the Report EV20201798812 with the protection of confidentiality from
subsequently being identified by the Hospital, unmasked in a civil lawsuit, and made to
testify.
10. Even if discovery in subsequent civil litigation could be considered an
“investigation” under Section 3 of the Whistleblower law, unmasking the identity of the
author is not unavoidable as the parties have unfettered access to the medical records and
can depose the individuals who were involved in the medical care at issue.
2
11. Although his reasoning was not expressly incorporated by this Honorable
Court, the Discovery Master reached an erroneous result based on his determination of
the legislative intent behind the Whistleblower Law.
12. The Discovery Master concluded that the General Assembly only intended to
discourage retaliation by the target of a whistleblower’s report to an agency by restricting
the agency’s right to disclose the identity of the reporter, the law does not purport to
preclude the target itself from ascertaining the reporter’s identity through other means.”
See Report and Recommendation at 11.
13. In reaching his interpretation, the Discovery Master read conditions into the
statute that are not provided by its text.
14. By concluding the only intent was to prevent retaliatory action by the
hospital, the Discovery Master failed to read the statute in its entirety. Trust Under
Agreement Taylor, 164 A.3d 1147, 1155 (Pa. 2017) (citing 1 Pa. C.S. § 1922(2); Housing
Auth. of the Cnty of Chester v. Pa. State Civil Service Comm., 730 A.2d 935, 945 (Pa.
1999) (observing all sections must be read together and construed in reference to the
entire statute).
15. The Discovery Master also provided considerable analysis regarding the
application of Section 311(a) of the MCARE Act, which applies to the discoverability
and admissibility of the documents and materials of a patient safety committee or
governing board of a medical facility and the corresponding protections of the Peer
Review Protection Act. See 40 P.S. §§1303.310-1303.311, and 63 P.S. §§ 425.1-425.4.
16. The Hospital did not object on the basis of Section 311(a), nor did it take the
position that the Report EV20201798812 is shielded from discovery under the Peer
Review Protection Act—to the contrary—the Report was produced in discovery.
17. Finally, the Discovery Master’s conclusion that a medical facility is permitted
to “ascertain the reporter’s identity” through other means, never answered the question at
issue of whether that identity is nonetheless protected from disclosure to third parties
such as Plaintiff.
18. The Hospital seeks an appeal of the Order of Court dated July 19, 2022 as a
collateral order subject to Pennsylvania Rule of Appellate Procedure 313.
19. A collateral appeal is appropriate under the requirements of separability,
importance, and irreparability because the sought discovery involves the question
regarding confidentiality protections afforded to a potential witness under Section 308 of
the MCARE Act. See Commonwealth v. Harris, 32 A.2d 243, 251 (Pa. 2011) (“orders
overruling claims of privilege and requiring disclosure are immediately appealable under
Pa. R.A.P. 313”); Buckman v. Verazin, 54 A.2d 956, 955 (Pa. Super. 2012) (allowing
collateral appeal of discovery order directing disclosure of confidential information).
20. The anonymity protections of Section 308 of the MCARE Act are separable
and collateral legal question \[sic\] from the main cause of action, the right involved is too
important to be denied review, and the postponement of an appeal will result in the
irreparable loss of anonymity by the requested witness and the disruption of patient safety
reporting. See Pa. R.A.P. 313.
3
21. The question of whether anonymous reporters of serious incidents are
afforded the protections of anonymity provided by the Whistleblower Law is also a
5
question of statewide importance and justifies an immediate collateral review.
This opinion in support of the court’s order is written pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
For present purposes, the facts alleged in Plaintiff’s most recent amended
6
complaintmay be summarized as follows. Plaintiff is Jane Betz, Executrix of the Estate
7
of Richard M. Betz and a resident of York County, Pennsylvania. Defendants are
89
various health care providers involved in the care and treatment of Plaintiff’s decedent
prior to his death while hospitalized at UPMC Pinnacle West Shore Hospital on June 18,
101112
2020.His death was preceded by respiratory failureinduced by prescribed opiates,
13
following knee surgery.
In this regard,
33. On 8 June 2020, \[Plaintiff’s decedent\] completed a preoperative
questionnaire which included a STOP-bang \[Snoring, Tiredness, Observed apnea, blood
Pressure, Body mass index, Age, Neck circumference and Gender\] evaluation. \[Plaintiff’s
decedent\] scored a 4 on this STOP—bang questionnaire, which requires that the patient
14
undergo a sleep study to rule out sleep apnea. . . .
** **
35. . . . \[Plaintiff’s decedent\] was at significant risk for compromise due to the
pre-operative assessment and STOP-bang results; in spite of that, none of the defendants
5
Statement of Errors for Appeal of Defendant UPMC Pinnacle West Shore Hospital, filed August 23,
2022.
6
Third Amended Complaint, filed June 24, 2021 (hereinafter Plaintiff’s Third Amended Complaint).
7
Plaintiff’s Third Amended Complaint, ¶1.
8
Plaintiff’s Third Amended Complaint, ¶¶2, 5-6, 9-10, 13-14, 17-18, 21-22.
9
Plaintiff’s Third Amended Complaint, ¶¶44, 55, 60, 65, 70, 75.
10
Plaintiff’s Third Amended Complaint, ¶44.
11
Plaintiff’s Third Amended Complaint, ¶35.
12
Plaintiff’s Third Amended Complaint, ¶43.
13
Plaintiff’s Third Amended Complaint, ¶39.
14
Plaintiff’s Third Amended Complaint, ¶33.
4
ensured that \[Plaintiff’s decedent\] underwent the required sleep study prior to the
surgery, and prior to prescribing him opiate medications. Those failures increased the risk
that \[Plaintiff’s decedent\] would suffer respiratory compromise and death, which
15
unfortunately happened to him as a result of the negligence of these defendants.
* * * *
39. \[Plaintiff’s decedent\] underwent the knee surgery and by all accounts it was
successful; however, . . . \[Plaintiff’s decedent was permitted\] to receive opiate
medications in spite of the very real risk of \[his\] having sleep apnea and therefore \[being\]
at risk for respiratory failure due to opiate effects on \[his\] brainstem and his respiratory
16
drive.
Particular allegations relating to Defendant UPMC Pinnacle West Shore Hospital
include the following:
2. Defendant, UPMC Pinnacle West Shore Hospital . . . (“the hospital”) is a
hospital for the treatment and care of patients, the business entity responsible for the acts
of the co-defendants herein, and operates the hospital out of the identified address \[in
Cumberland County, Pennsylvania\].
3. At all times material hereto, the hospital was, or may have been, the employer
of \[the individual defendants\] and other individuals involved with healthcare, clerical,
17
and administrative duties with respect to the care at issue in this lawsuit.
* * * *
46. The hospital is responsible for the acts and omissions of its agents, servants
and/or employees involved in the care at issue in this lawsuit, all of whom knew or
should have known of the facts and risks of post-operative complications of adults with a
high risk of having sleep apnea, the sensitivity of these patients to narcotic analgesics and
the increased risk of depressive respiratory effects after emergence from anesthesia
and/or when provided opiates as were provided to \[Plaintiff’s decedent\] post-operatively.
47. The hospital’s agents failed to assess \[Plaintiff’s decedent\] for this risk,
follow the chain of command and communicate the patient’s condition so he could be
monitored more closely at the hospital, and treat this patient with severe obstructive sleep
apnea in accordance with the standard of care. This deviation in the standard of care
resulted in the loss of chance of survival and ultimate death.
48. The following negligent acts and omissions of the hospital caused the death
of, increased harm to, and/or caused the loss of chance of survival to \[Plaintiff’s
decedent\]:
a. Failing to assess \[Plaintiff’s decedent, or seek information regarding
the diagnosis/severity of his sleep apnea due to the STOP-bang results;
b. Administering multiple opiates and failing to ensure continuous
monitoring for an adult with a high risk of having sleep apnea;
15
Plaintiff’s Third Amended Complaint, ¶35.
16
Plaintiff’s Third Amended Complaint, ¶39.
17
Plaintiff’s Third Amended Complaint, ¶¶2-3.
5
c. Failing to communicate the patient’s STOP-bank score and high risk
of having sleep apnea along the chain of command to assure that
\[Plaintiff’s decedent\] would continue to be monitored for respiratory
compromise;
d. Failing to assess level of consciousness post-operatively and readiness
for transfer to the floor, and the failure to properly and continuously
monitor \[Plaintiff’s decedent\] post-operatively, so that his real risk of
opiate induced respiratory compromise would be detected and therapies
could be implemented to protect \[Plaintiff’s decedent’s\] airway and
reverse the effects of the narcotics before respiratory compromise
became critical and life threatening;
e. Failure to assess for the effect of increased risk of depressive
respiratory effects hours after emergency from anesthesia, in an adult
with the real risk of sleep apnea;
f. Failure to communicate the need to continuously monitor \[Plaintiff’s
decedent\] postoperatively, in response to the increased risk of depressive
respiratory effects hours after emergence from anesthesia, in an adult
18
with the real risk of sleep apnea.
* * * *
50. The aforementioned personal injuries and losses of the decedent were caused
by named defendants, acting by and through its agents, servants and employees, in their
care of \[Plaintiff’s decedent\], who knew, or had reason to know, of the facts and risks of
post-operative complications of adults with the real risk sleep apnea, the sensitivity of
adults with sleep apnea, and the increased risk of depressive respiratory effects hours
after emergence from anesthesia and upon administration of post-operative opiates, but
failed to assess \[Plaintiff’s decedent\] for this risk or treat this patient with a real risk of
sleep apnea in accordance with the standard of care. This deviation in the standard of care
resulted in loss of the chance of survival and ultimate death.
51. The following negligent acts and omissions of the defendant, caused the
death of, increased harm to or caused the loss of chance of survival to \[Plaintiff’s
decedent\]:
a. Failure to select and retain competent physicians and nurses to treat
decedent and assure quality care for the decedent to make certain that
defendants would assess, treat, and monitor the decedent in accordance
with the standard of care, given the facts and risks of post-operative
complications of adults with sleep apnea;
b. Failure to formulate, adopt and enforce adequate rules and policies to
assure quality care for the decedent to make certain that defendants
would assess and treat the decedent in accordance with the standard of
care, given the facts and risks of post-operative complications of adults
with sleep apnea;
c. Failure to have in place a policy or procedure to assure that defendants
would assess and treat the decedent in accordance with the standard of
18
Plaintiff’s Third Amended Complaint, ¶¶46-48.
6
care, given the facts and risks of post-operative complications of adults
with sleep apnea;
d. Failure to oversee and supervise physicians and nurses, as to patient
care and assure that defendants would assess and treat the decedent in
accordance with the standard of care, given the facts and risks of post-
operative complications of adults with sleep apnea.
e. Failure to monitor the competence of the health care providers who
were acting as agents (expressed, implied, apparent, ostensible, or
otherwise), or servants of the hospital during \[Plaintiff’s decedent’s\]
anesthesia, surgery, and post-operative medication management and
monitoring to assure that defendants would assess and treat the decedent
in accordance with the standard of care, given the facts and risks of post-
19
operative respiratory complications of adults with sleep apnea.
2021
Wrongful deathand survivalactions have been pled by Plaintiff against all
Defendants.
22
In an answer to Plaintiff’s complaint,the defendant denies “that the care
provided to \[Plaintiff’s decedent\] fell below the standard of care or was otherwise
23
negligent, or that the care provided resulted in the alleged harm and damages.” The
defendant alleges, on the contrary, that any “injuries and damages claimed by Plaintiff
\[were\] the natural and progressive result of \[Plaintiff’s decedent’s\] medical conditions,
and not the result of any negligence by Answering Defendants or their employees, agents,
24
and ostensible agents.”
Plaintiff’s motion to compel deposition testimony, which is the subject of the
instant appeal, directed to Defendant hospital, was filed on May 16, 2022. The motion
19
Plaintiff’s Third Amended Complaint, ¶¶50-51.
20
Plaintiff’s Third Amended Complaint, ¶¶82-86.
21
Plaintiff’s Third Amended Complaint, ¶¶87-88.
22
Answer with New Matter of Defendants UPMC Pinnacle West Shore Hospital, Devin Olsen, D.O.,
Daniel Sumko, D.O. and Brenna Houser, CRNA to the Third Amended Complaint, filed August 4, 2021
(hereinafter Answer to Plaintiff’s Third Amended Complaint).
23
Answer to Plaintiff’s Third Amended Complaint, ¶¶46-48.
24
Answer to Plaintiff’s Third Amended Complaint, ¶92.
7
25
noted that Plaintiff commenced the present action in October of 2020,and it alleged
that
2. On 17 December 2021, Defendant, UPMC Pinnacle West Shore Hospital
produced four (4) incident reports in response to Plaintiffs’ Discovery Request.
3. Incident Report bearing Event Number EV20201798812 is authored by
“anonymous. . . .”
4. On 17 March 2022, counsel for Plaintiffs requested the depositions of the
individuals authoring the incident reports produced on 17 December 2021, specifically,
Anonymous, Erica Leber-Burnham, RN, Gurkirat Singh and Cathleen Markley. . . .
5. The depositions of Erica Leber-Burnham, RN and Gurkirat Singh have been
completed. The request for the deposition of Cathleen Marley has been withdrawn by
Plaintiffs.
6. On 29 March 2022, counsel for Plaintiffs requested the depositions \[sic\] of the
individual identified as “Anonymous. . . .”
7. Again, on 5 April 2022, counsel for plaintiff requested the depositions \[sic\] of
the individual identified as “Anonymous. . . .”
8. As of the writing of this Motion the deposition of "Anonymous” has not been
scheduled, and no valid reason provided by Defendants why the individual has not been
26
identified and produced.
The anonymous report in question, according to an attachment to Plaintiff’s
motion, was dated June 18, 2020, and read as follows:
Patient was given 6 x 0.5 mg of hydromorphone and 4 mg of morphine post-op in the
PACU \[Post-Anesthesia Care Unit\]. Based on chart documentation, the patient was
desatting \[incurring decreasing oxygen levels\] from the narcotics and required 3L NC
\[three liters of oxygen by nasal cannula\]. The patient was then transferred from the
PACU to WS4 without any bedside handoff to the floor RN. Floor RN found the
patient unresponsive and pulseless, and a code blue was activated. After a few days in
the ICU the patient was found to have anoxic brain injury due to his cardiac arrest.
27
Care was withdrawn and the patient died during the admission.
Relief requested by Plaintiff was an order (a) compelling Defendant hospital to
supply a firm date for the deposition of “Anonymous” within five days and (b) directing
28
that the deposition take place within twenty days.
29
In an answer to Plaintiff’s motion, Defendant hospital argued as follows:
25
Plaintiff’s Motion To Compel Deposition, ¶1.
26
Plaintiff’s Motion To Compel Deposition, ¶¶2-8.
27
Defendant’s Answer to Plaintiff’s Motion To Compel Deposition, Exhibit B (emphasis added).
28
Plaintiff’s Motion To Compel Deposition, ¶12; cf. id., proposed order.
8
. . . Sections 307 and 308 of the MCARE Act expressly codify a patient safety
program in which health care workers are to report serious events to the hospital
administration so that they may be investigated and patient safety can be continually
improved. 40 P.S. §§1303.307-1303.308. In order to encourage reporting, the MCARE
Act provides that “A health care worker who reports the occurrence of a serious event or
incident . . . shall have the protections and remedies set forth in . . . the Whistleblower
Law.” 40 P.S. § 1303.308 (citing 43 P.S. § 1421).
In short, a reporter of a serious event or incident is entitled to the same protection
as a whistleblower. Section 2 of the Whistleblower Law describes the protections
afforded to whistleblowers, including that the report recipient “may not disclose the
identity of a whistleblower without the whistleblower’s consent unless disclosure is
unavoidable in the investigation of the alleged violation.” 43 P.S. 1423. Investigation
under this section relates to a regulatory or criminal investigation of the reported incident
30
by the entity receiving the report, not civil litigation discovery from a third-party.
,* * * *
The anonymous reporter also has a First Amendment right to speak anonymously
31
that must be protected.
* * * *
Plaintiff, most tellingly, does not have the need . . . to destroy the anonymity of
the reporter. The medical providers, who have firsthand knowledge of the care \[provided
to Plaintiff’s decedent\], have been identified and are being deposed. To the extent the
anonymous reporter was involved in the relevant care, the individual’s testimony will be
obtained. To the extent the anonymous reporter was not involved in the relevant care, but
only later learned of the care, such information is not “necessary” to Plaintiff’s claims
32
and has questionable veracity and weight.
* * * *
\[S\]econd hand reports and analysis submitted under the Patient Safety Plan are
also protected as peer review materials. . . . UPMC Pinnacle West Shore Hospital
reserves the right to raise Peer Review privilege protections, if applicable, if the
33
anonymity of the authority \[sic\] of Incident Report EV2021798812 \[sic\] is destroyed.
29
Response to Plaintiffs’ Motion To Compel the Deposition of the Author of Incident Report
EV20201798812, filed June 14, 2022 (hereinafter Defendant’s Answer to Plaintiff’s Motion To Compel
Deposition).
30
Defendant’s Answer to Plaintiff’s Motion To Compel Deposition, ¶8.
31
Defendant’s Answer to Plaintiff’s Motion To Compel Deposition, ¶8.
32
Defendant’s Answer to Plaintiff’s Motion To Compel Deposition, ¶8.
33
Defendant’s Answer to Plaintiff’s Motion To Compel Deposition, ¶8 n.1 (emphasis added).
9
An argument/hearing was held by the discovery master on Plaintiff’s motion to
34
compel a deposition on July 18, 2022.At this proceeding, as indicated in a Report and
Recommendation issued by the discovery master,
counsel werein agreement thatthe factual allegations in the serious event or incident
report at issue were in dispute. Counsel for Defendant UPMC West Shore Hospital
represented that neither he nor the hospital knew the identity of the reporter, although it
was not represented that such information could not be extracted from the hospital’s
reporting system; counsel for Plaintiff accepted the representation that the reporter’s
identity was not known at this time. Counsel for Defendant hospital also advised that the
defendant was not claiming that the report itself, as opposed to the identity of its author,
was protected from disclosure under the MCARE Act. No evidence was presented at the
argument/hearing that the report had been prepared for or submitted to a peer review
committee.
It was also indicated that thus far none of the deponents having first-hand
knowledge of the care received by Plaintiff’s decedent had acknowledged authorship of
35
the report.
The Report and Recommendation issued by the discovery master included a
review of the general principles of discovery in Pennsylvania and an analysis of
applicable provisions of the MCARE Act, the Peer Review Protection Act and the
36
Whistleblower Law. Ultimately, an order providing a limited form of relief in response
to Plaintiff’s motion was recommended by the master and entered by the court:
AND NOW, this 19th day of July, 2022, upon consideration of Plaintiff’s Motion
To Compel the Deposition of the Author of Incident Report EV20201798812, filed May
16, 2022, and pursuant to a recommendation contained in the attached Discovery
Master’s Report and Recommendation, the motion is granted to the extent that Defendant
UPMC Pinnacle West Shore Hospital is directed to perform a reasonable search of the
system utilized by the author of Initial Incident/Event Report EV20201798812 with a
view toward determining the identity of the reporter, and to serve a verified report of the
result of that search upon Plaintiff’s counsel within 45 days of the date of this order.
NOTHING IN THIS ORDER is intended to require the defendant to perform an
investigation beyond a review of the system (including an examination of metadata
associated with the report).
34
See Notice of Discovery Master’s Argument/Hearing on Plaintiff’s Motion To Compel Deposition,
filed June 29, 2022.
35
Discovery Master’s Report and Recommendation, at 7.
36
Discovery Master’s Report and Recommendation, at 8-11, filed July 18, 2022 (hereinafter Discovery
Master’s Report and Recommendation).
10
37
NO OTHER RELIEF is afforded to either party at this time.
From this order, the defendant has filed an appeal to the Pennsylvania Superior
Court.
STATEMENT OF LAW
Discovery in general. As a general rule, “a party may obtain discovery regarding
any matter, not privileged, which is relevant to the subject matter involved in the pending
action, whether it relates to the claim or defense of the party seeking discovery or to the
claim or defense of any other party, including the existence, description, nature, content,
custody, condition and location of any books, documents, or other tangible things and the
38
identity and location of persons having knowledge of any discoverable matter.” “The
party objecting to discovery generally bears the burden of establishing that the requested
information is not relevant or discoverable. . . . Any doubts regarding relevancy are to be
39
resolved in favor of discovery.”
Discovery may be obtained by “one or more of the following methods: depositions
upon oral examination . . . or written interrogatories . . . ; written interrogatories to a
party . . . ; production of documents and things and entry for inspection and other
purposes . . . ; physical and mental examinations . . . ; and requests for admission . . . .”
Pa. R.C.P. 4001(d).
Under Pennsylvania Rule of Civil Procedure 4019, “\[t\]he court may, on motion,
make an appropriate order if . . . “a party . . . , after notice . . . , fails to appear before
40
the person who is to take the deposition,” or “a party otherwise fails to make
41
discovery or to obey an order of court respecting discovery.”
37
Discovery Master’s Report and Recommendation, Recommended Order; Order of Court, dated July 19,
2022 (Hyams, J.).
38
Pa. R.C.P. 4003.1(a).
39
Sharp v. Travelers Personal Security Insurance Co., 36 Pa. D. & C.5th 521, ___, 2014 WL 8863084, at
5 (Lackawanna County, March 7, 2014) (citations omitted).
40
Pa. R.C.P. 4019(a)(1)(iv).
41
Pa. R.C.P. 4019(a)(1)(vii).
11
42
MCARE Act. Under the MCARE Act, certain reports are required of health care
workers at medical facilities
A health care worker who reasonably believes that a serious event or incident has
occurred shall report the serious event or incident according to the patient safety plan of
the medical facility unless the health care worker knows that a report has already been
made. The report shall be made immediately or as soon thereafter as reasonably
practicable, but in no event later than 24 hours after the occurrence or discovery of a
43
serious event or incident.
“A health care worker who reportsthe occurrence of a serious event or incident...shall
not be subject to any retaliatory action for reporting the serious event or incident and
44
shall have the protections and remedies set forth in the . . . the Whistleblower Law.
The Whistleblower Law provides that “an appropriate authority to which a
violation of this act was reported may not disclose the identity of a whistleblower without
the whistleblower's consent unless disclosure is unavoidable in the investigation of the
45
alleged violation.”
Also under the MCARE Act, certain items are not subject to discovery:
Any documents, materials or information solely prepared or created for the purpose of
compliance with section 310(b) or of reporting under section 304(a)(5) or (b), 306(a)(2)
1
or (3), 307(b)(3), 308(a), 309(4), 310(b)(5) or 313 which arise out of matters reviewed
by the patient safety committee pursuant to section 310(b) or the governing board of a
medical facility pursuant to section 310(b) are confidential and shall not be discoverable
or admissible as evidence in any civil or administrative action or proceeding. Any
documents, materials, records or information that would otherwise be available from
original sources shall not be construed as immune from discovery or use in any civil or
administrative action or proceeding merely because they were presented to the patient
safety committee or governing board of a medical facility.
40 P.S. §1303.311(a).
However, “under the plain language of section 311(a), documents are protected
from discovery only if: (1) they were ‘solely prepared or created for the purpose of
compliance with’ the MCARE Act's “serious events” reporting requirements or the
42
40 P.S. §§1303.101 et seq.
43
40 P.S. §1303.308(a).
44
40 P.S. §1303.308(c).
45
43 P.S. 1423(c).
12
patient safety committee's responsibilities under section 310(b); (2) they ‘arise out of
matters reviewed by the patient safety committee ... or the governing board’ pursuant to
section 310(b); and (3) they are not otherwise available ‘from original sources.’” Venosh
v. Henzes, 31 Pa. D. & C.5th 411, ___, 2013 WL 9593953, at 10 (Lackawanna County
th
2013); see also Listerick v. Singh, 47 Pa. D. & C.5 193, 2015 WL 13779478 (2015).
Presumably, the burden of proof with respect to this exemption from discovery
rests upon the party seeking to exercise it.
Peer Review Protection Act. Under the Peer Review Protection Act,
\[t\]he 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 and no person who was in attendance at a
meeting of such committee shall be permitted or required to testify in any such civil
action as to any evidence or other matters produced or presented during the proceedings
of such committee or as to any findings, recommendations, evaluations, opinions or other
actions of such committee or any members thereof: Provided, however, That information,
documents or records otherwise available from original sources are not to be construed as
immune from discovery or used in any such civil action merely because they were
presented during proceedings of such committee, nor should any person who testifies
before such committee or who is a member of such committee be prevented from
testifying as to matters within his knowledge, but the said witness cannot be asked about
his testimony before such a committee or opinions formed by him as a result of said
committee hearings.
63 P.S. §425.4. In this context, a “review committee” refers to a committee that engages
in peer review. See Reginelli v. Boggs, 645 Pa. 470, 483, 181 A.3d 293, 301 (2018).
“Peer review” means the procedure for evaluation by professional health care
providers of the quality and efficiency of services ordered or performed by other
professional health care providers, including practice analysis, inpatient hospital and
extended care facility utilization review, medical audit, ambulatory care review, claims
review, and the compliance of a hospital, nursing home or convalescent home or other
health care facility operated by a professional health care provider with the standards set
by an association of health care providers and with applicable laws, rules and
regulations. . . .
63 P.S. §425.2.
“\[T\]he \[Peer Review Protection Act\] is designed to foster candor and frankness in
the creation and consideration of peer-review data by conferring immunity from liability,
as well as confidentiality – all with the objectives of improving the quality of care,
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reducing mortality and morbidity, and controlling costs.” Leadbitter v. keystone
Anesthesia Consultants, Ltd., ___ Pa. ___, ___, 256 A.3d 1164, 1169 (2021).
The burden of proof with respect to the Peer Review Protection Act is upon the
party claiming protection under it. Treible v. Lehigh Valley Hospital, Inc., 75 Pa. D. &
C.4th 22, 2005 WL 3947166 (Lehigh County 2005).
APPLICATION OF LAW TO FACTS
In recommending the limited and case-specific order recited above in response to
the defendant’s motion to compel a deposition, the master expressed his rationale as
follows:
It appears to the master that the protection in question afforded by the
Whistleblower Law is intended to discourage retaliation by the target of a
whistleblower’s report to an agency by restricting the agency’s right to disclose the
identity of the reporter; the law does not purport to preclude the target itself from
ascertaining the reporter’s identity through other means. Given that the type of protection
afforded in the Whistleblower Law is the basis for the defendant’s position pursuant to
the MCARE Act that the source of the report at issue can not lawfully be ascertained or
disclosed, and the absence of evidence of an association of the report with the peer
review process, for purposes of the Peer Review Protection Act, the master is in
agreement with Plaintiff’s position that defendant is not precluded from identifying and
46
revealing the source of the report at issue.
To this the court would add two points. First, it is not suggested by the defendant
that it cannot acquire the identity of the reporter, nor would such acquisition be unlawful.
While the defendant cites the Statutory Construction Act as a basis for its refusal to
disclose the identity of its employee, it is also a rule of statutory construction that it is to
be presumed “that the General Assembly does not intend a result that is absurd . . . or
unreasonable.” 1 Pa. C.S. §1922(1). Under the construction proposed by the defendant, a
hospital would be able to conceal in discovery the identity of an employee who has
rendered an account of an incident unfavorable to the hospital and with which the
hospital disagrees. The use by the target of a whistleblower of the statutes at issue as a
shield against discovery of wrongdoing does not, in the court’s view, comport with a
presumption of legislative rationality.
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Discovery Master’s Report and Recommendation, at 11.
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Second, although the defendant in its statement of errors complained of on appeal
faults the masterfor devoting a portion of his analysis to the Peer Review ProtectionAct,
it is noted that in its response to Plaintiff’s motion the defendant included the following
reservation:
\[S\]econd hand reports and analysis submitted under the Patient Safety Plan are
also protected as peer review materials. . . . UPMC Pinnacle West Shore Hospital
reserves the right to raise Peer Review privilege protections, if applicable, ifthe
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anonymity of the authority \[sic\] of Incident Report EV2021798812 \[sic\] is destroyed.
Without commenting on the propriety of reserving in a response to a discovery
motion a right to contest the motion on a different ground in the event the motion is
granted, it was appropriate, in the court’s view, for the master to discuss themerits of the
prospective issue.
BY THE COURT,
________________
Carrie E. Hyams, J.
DISTRIBUTION:
The Honorable Carrie E. Hyams
Judge, Cumberland County Court of Common Pleas
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Andrew Marth, Esq.
James E. Beasley, Jr., Esq.
THE BEASLEY FIRM, LLC
1125 Walnut Street
Philadelphia, PA 19107-4997
Attorney for Plaintiff
47
Defendant’s Answer to Plaintiff’s Motion ToCompel Deposition, ¶8 n.1 (emphasis added).
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Luke T. Weber, Esq.
Lauralee B. Baker, Esq.
Peter J. Faben, Esq.
BARLEY SNYDER
126 East King Street
Lancaster, PA 17602
Attorneys for Defendants UPMC Pinnacle West
Shore Hospital, Devin Olson, D.O., Daniel Sumko, D.O.,
and Brenna Houser, CRNA
Michael C. Mongiello, Esq.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN
Suite 201
100 Corporate Center Drive
Camp Hill, PA 17011
Attorney for Defendant Steven DeLuca, D.O.
Wiley P. Parker, Esq.
HENRY & BEAVER LLP
937 Willow Street
P.O. Box 1140
Lebanon, PA 17042-1140
Attorney for Defendant Todd C. Schaeffer, D.O.
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