MEDICAL MALPRACTICE-PRIVILEGE

September 26th, 2022 by Rieders Travis in Medical Malpractice

Lahr v. Young, Pa. Civil No. 2021-C-0010 (C.P. Lehigh June 17, 2022) (Caffrey, J.)  Motion to compel by plaintiff granted by the court.  At issue were patient safety reports regarding plaintiff Hannah Lahr and Medina-Diaz.  The cases involved were medical malpractice.  Plaintiff sought production of patient safety reports regarding the two individuals.  Defendants contend that the reports were privileged under the Mcare Act and the Peer Review Protection Act.  The court conducted an in camera review.  The court defined a patient safety event as something requiring a patient safety report to the patient safety office.  Healthcare workers in training use factual information only when submitting an event report.  Opinions are not permitted.  However, the factual information a healthcare worker puts in an event report is not intended to supplant the patient’s medical records.  Therefore, factual information contained in the event report should also be contained in the patient’s medical records.  The patient safety officer’s role is defined in terms of the investigation.  The three event reports regarding events in this case were duly submitted during the course of an investigation.  The patient safety office and front line staff and leadership personnel conducted a root cause analysis.  At the conclusion, the three event reports were reported as “incidents” and “non-events”.  Young received the three event reports in electronic form, and upon evaluation determined that the events described in the event report should be submitted to peer review.  Although typically Young uploads summaries of event reports into the electronic peer review file, she does not know whether she uploaded summaries of the event reports regarding the people involved here.  Because risk management is not a part of the investigation and peer review process under the patient safety reporting policy, the individuals at the hospital review 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 the event reports be produced for in camera review.  Before the hospital personnel gave the envelope to outside counsel, she removed the event reports from the envelope and reviewed them to ensure they were the correct event reports.  The court discussed the Pennsylvania Peer Review Act and what it requires.  Even if the event reports were generated during the course of peer review and did not consist of information otherwise available from original sources, the event reports are not immune from discovery under the Peer Review Act.  Because the event reports are not “proceedings and records of a review committee”, the event reports consist of information “otherwise available from original sources” and the record does not establish that the information contained in the event reports were considered during peer review.  Therefore, the event reports are not immune from discovery under the Peer Review Act.  As to Mcare, the court again looked at Section 308(a) of the Act.  311(a) also contains the “original source” exception.  The event reports in this case were solely prepared for compliance with Section 308(a) and arise out of matters reviewed by a patient safety committee pursuant to Section 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, the event reports consist entirely of objective data and information as contained in the patient’s medical records and other non-confidential sources of information, such as a strictly factual description of the event, the time and place of the event, persons involved in the event, and witnesses to the event.  “The collection and assembly of information from otherwise available sources does not gain the mantra of protected confidential material solely because of a forms label.”  Because the event reports consist of information that is otherwise available from original sources, the event reports are not immune from the Mcare Act.  Plaintiff contends that Coleman’s review of the event reports constituted a breach of confidentiality that results in waiver of any privilege afforded by the two statutes.  This is moot.

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 ]