Skip to main content


Betz v. UPMC Pinnacle W. Shore Hosp., 2023 Pa. Super. LEXIS 401, 2023 WL 5965065 (September 14, 2023) (Bowes, J.) UPMC Pinnacle West Shore Hospital (“the Hospital”) appeals from the order that granted the motion of Jane Betz (“Plaintiff”), directing the Hospital to take reasonable efforts to identify the author of an anonymous report concerning the care and death of Richard M. Betz (“Decedent”) at the Hospital. Specifically, the Hospital contends that the trial court erred in so doing because ascertaining the identity of the reporter would violate the whistleblower protections of the Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. §§ 1303.101-1303.910. As we find no error in the trial court’s interpretation and application of the pertinent statutes, we affirm. It is well-settled that evidentiary privileges are disfavored, and that their use should be permitted “only to the very limited extent that excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” BouSamra v. Excela Health, 653 Pa. 365, 210 A.3d 967, 975 (Pa. 2019) (cleaned up). Regarding the respective duties of the parties when a privilege is invoked, we have observed that “[t]he party invoking a privilege must initially set forth facts showing that the privilege has been properly invoked.” Yocabet v. UPMC Presbyterian, 2015 PA Super 132, 119 A.3d 1012, 1019 (Pa.Super. 2015) (cleaned up). “Once the invoking party has made the appropriate proffer, then the burden shifts to the party seeking disclosure to set forth facts showing that disclosure should be compelled either because the privilege has been waived or because an exception to the privilege applies.” Id. (cleaned up). At issue in the instant appeal is the Hospital’s claim that the identity of the author of the anonymous report is privileged from discovery based upon the provisions of the Whistleblower Law incorporated by reference into the MCARE Act. The section of the MCARE Act invoked by the Hospital states as follows in relevant part:

(a) Reporting.–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 serious event or incident.

. . . .

(c) Liability.–A health care worker who reports the occurrence of a serious event or incident in accordance with subsection (a) . . . shall not be subject to any retaliatory action for reporting the serious event or incident and shall have the protections and remedies set forth in [43 P.S. §§ 1421-1428], known as the Whistleblower Law.

(d) Limitation.–Nothing in this section shall limit a medical facility’s ability to take appropriate disciplinary action against a health care worker for failure to meet defined performance expectations or to take corrective action against a licensee for unprofessional conduct, including making false reports or failure to report serious events under this chapter.

40 P.S. § 1303.308. Hence, the MCARE Act guarantees (1) freedom from retaliation for reporting, and (2) the protections and remedies offered by the Whistleblower Law. While employers may not terminate or otherwise discriminate against an employee who made a good faith report to the employer or to an “appropriate authority,” the anonymity provision of the law makes no reference to employers, constraining only the “appropriate authority” from disclosing the identity of the employee. Therefore, we must determine whether the Hospital stands in the shoes of an “employer” or an “appropriate authority” for purposes of the Whistleblower Law’s incorporation into the MCARE Act. Our review of the pertinent provisions of the MCARE Act leads us to the ready conclusion that the Hospital is not an “appropriate authority” prohibited from disclosing the identity of the author of the anonymous report. The text of incorporated provisions of the Whistleblower Law in light of the reporting provisions of the MCARE Act makes it plain that the Hospital does not stand in the shoes of an “appropriate authority” that is bound to protect the identity of a whistleblower. Rather, the “appropriate authorities” at issue are the public entities involved in administering the patient safety provisions of the Act, namely the Patient Safety Authority and the Department of Health. The Hospital instead stands in the shoes of the Whistleblower Law’s concept of an “employer” for purposes of applying protections and remedies of the MCARE Act. We deem it no coincidence that the MCARE Act, as detailed above, contains no references to anonymous reporting in § 1303.308, which requires health care workers to make reports in accordance with the medical facility’s patient safety plan, but does allow for anonymous reporting to the authority after the internal report is made. See 40 P.S. § 1303.304(b). Indeed, the MCARE Act on its face contemplates that medical facilities will be aware of who authored reports made pursuant to the patient safety plan insofar as it expressly provides that medical facilities are permitted to discipline and take corrective action against health care workers who make false reports. See 40 P.S. § 1303.308(a). Moreover, our effectuation of the plain language of the statutes does not, as the Hospital suggests, violate the rules of statutory interpretation by rendering superfluous the MCARE Act’s incorporation of the Whistleblower Law. The MCARE Act itself merely states generally that a worker who reports an incident or serious event pursuant to § 1303.308(a) “shall not be subject to any retaliatory action for reporting the serious event or incident[.]” 40 P.S. § 1303.308(b). Through the additional incorporation of the protections and remedies of the Whistleblower Law, workers are specifically: (1) protected from discharge and other adverse employment actions, with the right to bring civil actions against the employer for violations for those guarantees, pursuant to 43 P.S. §§ 1423(a) and (b) and 1424(a); and (2) protected from having their identities involuntarily disclosed by the authority or the department in connection with a public investigation of a report, unless disclosure is unavoidable, pursuant to 43 P.S. § 1423(c). Thus, the incorporation of the Whistleblower Law into § 1303.308 of the MCARE Act is manifestly meaningful without adopting the Hospital’s position that it must keep the identity of the author of the anonymous report secret from Plaintiff. In sum, we hold that 40 P.S. § 1303.308(b) and 43 P.S. § 1423(c) do not preclude the Hospital from taking reasonable efforts to ascertain and disclose to Plaintiff the author of the anonymous report. Therefore, we have no cause to disturb the trial court’s order.