January 11th, 2023 by Rieders Travis in Medical Malpractice

Lahr v. Young, Pa. No. 2021-C-0010 (C.P. Lehigh June 21, 2022) (Caffrey, J.)  There are three event reports regarding events on the Labor and Delivery Unit involving Hannah Lahr and/or her infant. Two of the event reports are dated August 14, 2019. One event report is dated August 15, 2019. The Patient Safety Office investigated the events described in the event reports, and during the course of this investigation, Meg Snyder, a Patient Safety Officer, led a committee consisting of frontline staff and leadership personnel that conducted a root cause analysis. At the conclusion of its investigation, the Patient Safety Office classified two of the three event reports as “incidents” and one event report as a “non-event,” and in accordance with the provided taxonomy, reported the two events classified as “incidents” to the Pennsylvania Patient Safety Authority. Young received the three event reports in electronic form and, upon evaluation, determined that the events described in the event reports should be submitted to peer review. Although Young typically uploads summaries of event reports into the electronic peer review file, she does not know whether she uploaded summaries of the event reports regarding Hannah Lahr and/or her infant into the electronic peer review electronic file. Clinical questions that arose during the root cause analysis were uploaded to the electronic peer review file. On September 6, 2019, the Obstetrics Peer Review Committee reviewed the electronic peer review data for purposes of a peer review. Because Risk Management is not part of the investigation and peer review process under the Patient Safety Reporting Policy, Coleman, the Administrator for Risk Management, reviews event reports only when, for litigation purposes, outside counsel has requested that she determine whether an event report has been filed. Outside counsel requested that Coleman assist Browning in producing the event reports for the Court’s in-camera review. Coleman asked Browning to place the event reports in an envelope for delivery to outside counsel. Before Coleman gave the envelope to outside counsel, she removed the event reports from the envelope and reviewed them to ensure that they were the correct event reports. Coleman read enough of the event reports to ensure that she had the right reports. A “review committee” is “an entity or an individual engaged in peer review.” Troescher v. Grody, 869 A.2d 1014, 1022 (Pa. Super. 2005). The term “peer review” is defined by the PRPA as “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 ….” 63 P.S. § 425.2. Under the PRPA, a “professional health care provider” includes “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.” 63 P.S. § 425.2(1). The event reports in this case, unlike the “incident reports” described in Venosh, were not generated so that Risk Management could document and investigate a potential claim. Risk Management is not part of the evaluation process initiated by the submission of an event report in accordance with the Patient Safety Reporting Policy. Risk Management reviews event reports only when, for litigation purposes, outside counsel has inquired as to whether an event report has been filed. Furthermore, the event reports in this case, unlike the “incident reports” described in Ungurian, were not generated merely for the purpose of documenting an incident or event. Instead, the event reports were generated in accordance with the Patient Safety Reporting Policy, which was adopted to comply with, and implement, the provisions of the MCARE Act. The submission of an event report in accordance with the Patient Safety Reporting Policy triggers the initiation of an internal process designed to evaluate the care provided by medical professionals, a process which, under certain circumstances, includes “peer review” as defined under the PRPA. However, the Defendants must establish that the event reports in this case were actually utilized by a peer review committee. See Treible, 75 Pa. D. & C. 4th at 27 (“[T]o sustain its claim of peer review privilege, LVH had the burden of demonstrating that the documents at issue were in fact utilized by a peer review committee. Unless the [quality assurance review] forms were part of the proceedings or records of a review committee, the [PRPA] by its terms does not apply.”). According to Young, if an event identified in an event report is sent to peer review, she solicits responses from the persons involved in the event, and then uploads these responses and a summary of the event report into an electronic peer review file. It is not clear whether a peer review committee’s review of merely a summary of an event report is sufficient to trigger the protection afforded by the PRPA. However, even if it is, Young cannot confirm that she uploaded a summary of the event reports to the electronic peer review file. As a result, the record does not demonstrate that the information contained in the event reports was reviewed by the Obstetrics Peer Review Committee. See Treible, 75 Pa. D. & C. 4th at 28 (“In the absence of any evidence that the documents at issue were ever utilized by a review committee, the claim of peer review privilege must fail.”). See also Atkins, 634 A.2d at 260 (holding that peer review privilege did not apply to a document that “was not derived from, nor part of an evaluation or review by a peer review committee”). Furthermore, the in-camera inspection reveals that each of the event reports at issue contains a strictly factual description of the event that, as confirmed by the event report itself, is recorded in the patient’s medical records. The event reports also contain other objective information that is in the patient medical records or otherwise already available to Plaintiff, such as the time of the event, location of the event, staff involved in the event, and witnesses to the event. As such, the event reports consist entirely of information “otherwise available from original sources.” See Atkins v. Pottstown Memorial Medical Center, 634 A.2d 258, 260 (Pa. Super. 1993) (incident report not immune from discovery under the PRPA because it reported an incident “based on information also available to plaintiffs,” and thus, contained information “otherwise available from original sources”). The event reports are not the product of the type of review and evaluation of medical providers that the PRPA contemplates as privileged and confidential. See Atkins, 634 A.2d at 260 (incident report consisting of information available to plaintiffs “did not come within the need for confidentiality which the statute was intended to provide”). Because the record does not reflect that the information contained in the event reports was considered during peer review and, in addition, the event reports consist of information “otherwise available from original sources,” the event reports are not immune from discovery under the PRPA. The in-camera review of the event reports reveals that the healthcare worker is notified that he or she is reporting information pursuant to Act 13 (MCARE Act), and that the information reported is confidential, not discoverable, and not admissible in any civil or administrative action or proceeding. Moreover, the record reflects that the event reports were reviewed and processed in accordance with the Patient Safety Reporting Policy and the provisions of the MCARE Act. The event reports were received and processed by the Patient Safety Office. The events described in the event reports were investigated, and during the course of the investigation, a root cause analysis was performed. And two of the three event reports were classified as “incidents” and reported to the Pennsylvania Patient Safety Authority. Therefore, it is clear that the healthcare workers created the event reports in accordance with the provisions of the MCARE Act. However, Defendants must also demonstrate that the event reports were created in conformity with one of the reporting requirements specified in § 311(a): § 310(b) (responsibilities of patient safety committee); § 304(a)(5) or (b) (responsibilities of patient safety authority); § 306(a)(2) or (3) (responsibilities of patient safety authority); § 307(b)(3) (duties of hospital); § 308(a) (“A healthcare 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 healthcare worker knows that a report has already been made.”); § 309(4) (patient safety officer’s duty to report to patient safety committee); § 310(b)(5) (reporting duties of patient safety committee); or § 313 (duties of patient safety committee to report to patient safety authority). The event reports do not specify the reporting provision pursuant to which the event report was created. However, each event report was created by a frontline healthcare worker, and in view of the reporting parties identified in the reporting requirements specified in § 311(a), the event reports were obviously created pursuant to the “serious event or incident” reporting requirement in § 308(a). Furthermore, the event reports arise out of matters reviewed by a patient safety committee pursuant to § 310(b). As noted, the Patient Safety Office received and processed the event reports, conducted an investigation into the events described in the event reports that included a root cause analysis, classified the event reports, and reported the two event reports classified as “incidents” to the Pennsylvania Patient Safety Authority. “Not unlike the PRPA, Section 311(a) contains an ‘original source’ exception and provides that any materials ‘that would otherwise be available from original sources shall not be construed as immune from discovery … merely because they were presented to the patient safety committee or governing board of a medical facility.’” Venosh, 2013 WL 95993953 at *10 (citation omitted). There appear to be only federal district court and common pleas court decisions interpreting the “original source exception” in the MCARE Act.9 The Court finds instructive the rationale employed by Judge Carmen Minora in Davis v. Voyce, 05-CV 4126 (Lackawanna County June 17, 2009). The event reports in this case were solely prepared for compliance with § 308(a) and arise out of matters reviewed by a patient safety committee pursuant to § 310(b). Nevertheless, the event reports are not shielded from discovery by the MCARE Act, as they consist of information that is otherwise available from original sources. As noted above, each of the event reports at issue contains a strictly factual description of the event that, as confirmed by the event report itself, is recorded in the patient’s medical records. The event reports also contain other objective information that is in the patient medical records or otherwise already available to Plaintiff, such as the time of the event, location of the event, staff involved in the event, and witnesses to the event. As such, the event reports consist entirely of information “otherwise available from original sources.” “The collection and assembly of information from otherwise available sources does not gain the mantra of protected confidential material solely because of a form’s label ….” Id. at 5. Because the event reports consist of information that is “otherwise available from original sources,” the event reports are not immune from discovery under the MCARE Act.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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