by Mark Bauman | Feb 22, 2023 | Legal News, Other News
In an opinion authored by the Honorable Alice Beck Dubow, the Superior Court of Pennsylvania held that the Peer Review Protection Act (PRPA)[1] did not protect disclosure of professional opinions and performance evaluations of a surgeon which were obtained by a hospital credentialing committee from other physicians and which were reviewed before granting hospital privileges.
In Leadbitter v. Keystone Anesthesia Consultants, LTD, et al.,[2] Dr. Carmen Petraglia applied for an appointment to the medical staff of St. Clair Hospital. In considering Dr. Petraglia’s application, the hospital’s credentialing committee reviewed documents including: professional opinions relating to Dr. Petraglia’s competence; Professional Peer Review Reference and Competency Evaluation, which contained evaluation of Dr. Petraglia’s performance by other physicians; Ongoing Professional Practice Evaluation of St. Clair Hospital Summary Report, which contained performance related data that St. Clair Hospital compiled; and responses to St. Clair’s inquiry to the National Practitioner Data Bank. Following review, the credentialing committee recommended that St. Clair Hospital grant clinical privileges to Dr. Petraglia, and Dr. Petraglia accepted the appointment.
After accepting his appointment, Dr. Petraglia examined Plaintiff, James Leadbitter, and recommended spinal surgery. Dr. Petraglia performed two spinal surgeries on Mr. Leadbitter at St. Clair Hospital. Following the surgeries, Mr. Leadbitter suffered a series of strokes resulting in brain damage, blindness, motor weakness, and impairment of his extremities, which the Leadbitter’s alleged was the result of the negligence of the defendants.
After filing a Complaint, Plaintiffs served St. Clair Hospital with discovery requests seeking, “the complete credentialing and/or privileging file for Petraglia.” St. Clair Hospital responded by producing only those documents that it determined were discoverable and removing/redacting the portions it claimed were privileged. Following a second request for production of documents, St. Clair Hospital produced another tranche of documents but continued to assert that some portions of the credentialing file were privileged.
The Leadbitter’s filed a Motion to Compel the production of Dr. Petraglia’s unredacted credentialing file; in support they argued that the Pennsylvania Supreme Court’s decision in Reginelli v. Boggs[3] entitled them to review the complete unredacted credentialing file. In response, St. Clair Hospital argued that the PRPA shielded it from producing the requested documents. Following a hearing, the trial court, relying on Reginelli, granted Plaintiffs’ motion and Ordered St. Clair Hospital to produce Dr. Petraglia’s unredacted credentialing file. St. Clair Hospital filed a timely appeal.
On appeal, St. Clair argued that the professional opinions and performance evaluations of Dr. Petraglia that the credentialing committee obtained from other physicians were protected by the PRPA because they were peer review documents. The PRPA defines “peer review” 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.”[4] The Superior Court explained that since “professional health care providers”—other physicians—prepared the documents in questions, and because the documents evaluated the “quality and efficiency of services ordered or performed” by Dr. Petraglia, the documents met the statutory definition of “peer review” documents.
The Superior Court then analyzed the the PRPA in light of the Supreme Court’s holding in Reginelli, which interpreted the protection provided by the PRPA in terms of, inter alia, the entity that holds the peer review documents. In particular, the evidentiary privilege applies only to the peer review documents of a “review committee” and not of a “review organization.” A “review committee” is defined as “any committee engaging in peer review” and a “review organization” is defined as “any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.” In Reginelli, the Supreme Court focused on the fact that the peer review documents at issue were part of a file created and maintained by an “individual.” Since an “individual” reviewed the documents, and the PRPA includes “individuals” in its definition of a “review organization”, the PRPA privilege did not apply to those professional evaluations. Further, the Superior Court has explained that the PRPA does not shield from disclosure, evaluations that a credentialing committee generates.[5]
In Leadbitter the Superior Court explained that in order to determine the applicability of the PRPA privilege, it must be determined whether a “review organization” or a “review committee” reviewed the professional evaluations of Dr. Petraglia. Since St. Clair Hospital’s credentialing committee is a committee that reviewed the professional qualifications and activities of Dr. Petraglia following his application for hospital privileges at St. Clair Hospital, the credentialing committee was a “review organization” and therefore the PRPA privilege did not apply to the documents at issue. The Superior Court in Leadbitter, also pointed to the reasoning set forth in Reginelli, that “review of a physician’s credentials for purpose of membership on a hospital’s medical staff is markedly different from reviewing the quality and efficiency of services ordered or performed by a physician when treating patients.”
The Superior Court in Leadbitter, noted that it shared the observation of the dissent in Reginelli, that the distinction between a “review organization” and a “review committee” will result in the chilling effect upon free and frank discussion aimed to ensure and improve an appropriate quality of care that the PRPA strives to vitiate. On September 15, 2020 The Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal of the Superior Court’s decision to determine if the holding conflicted with the PRPA and misapplied Reginelli, by ordering the production of acknowledged “peer review documents” solely because they were maintained in a physicians’ credentialing file.
[1] 63 P.S. § 425.1, et seq.
[2] Leadbitter v. Keystone Anesthesia Consultants, LTD, et al., 229 A.3d 292 (Pa. Super. 2020).
[3] Reginelli v. Boggs, 645 Pa. 470 (2018).
[4] 63 P.S. § 425.2.
[5] Estate of Krappa v. Lyons, 211 A.3d 869 (Pa. Super 2019).
by Mark Bauman | Feb 22, 2023 | Legal News, Silicone Breast Implant Litigation
National
On November 17, 2006, the FDA announced that it approved the marketing of silicone gel-filled breast implants made by Allergan Corp. (formerly Inamed Corp.) and Mentor Corp. The FDA stated that “The extensive body of scientific evidence provides reasonable assurance of the benefits and risks of these devices. This information is available in the product labeling and will enable women and their physicians to make informed decisions.”
The approval comes with conditions, however, requiring the companies to continue to conduct post-marketing research for 10 years. They also must conduct a focus group study of the patient labeling and continue laboratory studies to further characterize types of device failure. Tracking of each implant is also required in the event that health professionals and patients need to be notified of updated product information.
See the press release.
Philadelphia County
On October 28, 2003, the Honorable Victor J. DiNubile, Jr., released all 300+ pending silicone breast implant cases in the Court of Common Pleas of Philadelphia County. Monthly status conferences are held with liaison counsel, Judge DiNubile and Mary McGovern of the Complex Litigation Center in Philadelphia. Numerous Case Management Orders have been promulgated, which establish deadlines for all of the cases. Since the stay was lifted in Philadelphia County, the majority of the cases have either been discontinued or judgments of non-pros have been entered. At this point, only two cases remain active. The first trial is scheduled to begin in March of 2005.
York County
The Honorable Emanuel Cassimatis is coordinating the litigation in York County. He issued a General Scheduling Order dated April 7, 2004 which lifted the stay and established deadlines for the cases pending in York County.
All Other Pennsylvania Cases
The Honorable R. Stanton Wettick, Jr. is coordinating the litigation in all counties except Philadelphia and York. By Orders dated December 4, 2003, he lifted the stay on all cases and established deadlines. By February 2, 2004, plaintiffs were to file Statements of Intent to Proceed in certain cases. By July 1, 2004, plaintiffs were to file Information Sheets in certain remaining cases. In response to those deadlines, numerous cases were discontinued or judgments of non pros were entered. No further deadlines have been set in the remaining cases.
by Mark Bauman | Feb 22, 2023 | General Liability and Casualty, Legal News
In Brown v. Greyhound Lines, Inc., 2016 PA Super 108 (Pa. Super. Ct. May 24, 2016), the Pennsylvania Superior Court reviewed issues concerning the attorney-client privilege and the work product doctrine in the context of attorney and third-party administrator communications.
The lawsuit commenced when 42 plaintiffs filed personal injury actions against Greyhound for injuries sustained in a bus accident. FirstGroup owns, operates, and/or controls Greyhound. Appellants Greyhound Lines and FirstGroup America appealed the trial court’s order to produce discovery requests.
One discovery request at issue concerned a mock deposition of the bus driver created for appellants’ counsel in preparation of a deposition in another case. Greyhound contended the trial court erred in concluding, “a recorded statement, videoed by a third party, transcribed by a Court Reporter is clearly within [the definition of a] discoverable statement identified by Rule 4003.4,” and argued that the mock deposition should be afforded protection under the attorney-client privilege.
Greyhound asserted two issues for review regarding the mock deposition. First, “whether communications between counsel for a party and the party’s claim administrator, which hired counsel, are protected by the attorney-client privilege.” (emphasis added). Second, in the alternative, “whether communications between counsel for a party and the party’s claim administrator, who is investigating on counsel’s behalf, are protected by the attorney-client privilege.” (emphasis added). The court waived both issues on the basis that Greyhound’s brief failed to sufficiently develop an argument and merely cited case law without applying it to the case at hand.
Even if Greyhound’s brief did sufficiently develop the issue to avoid waiver, the court explained, Greyhound failed to satisfy its initial burden of proof producing adequate facts to show privilege is applicable to the mock deposition. The court noted that the mock deposition was “never intended to be confidential.” Although it was unclear whether the videotape was actually shared, the trial court and Superior Court both noted it was clear that a court reporter and videographer were present while taking the bus driver’s statement. Therefore, the court concluded, “in the absence of an affidavit, statement, or testimony in support of the circumstance, Greyhound has not demonstrated a reasonable expectation that the videotaped statement would remain confidential.”
FirstGroup’s assertion that the trial court erred in ordering the production of the mock deposition was also waived. The court concluded that the issue was not before it, as FirstGroup failed to file a notice of appeal from the specific mock deposition order. The court also noted that FirstGroup’s brief adopted the arguments made by Greyhound, which it found insufficient. Therefore, the trial court’s order to produce the mock deposition was affirmed.
The second discovery request at issue was for the “contents of claim files, correspondence, and emails discussing the bus accident that were sent to or from any individual employed by Gallagher Bassett,” a third-party adjustment company which hired counsel and contractually handled claims and investigations for Appellants Greyhound and First Group. Greyhound and FirstGroup argued the information should have been afforded protection under the work-product doctrine. FirstGroup contended that although the information may have appeared at first to be a “recitation of investigative efforts of Gallagher,” it is clear after closer inspection that the documents “contain the mental impressions and/or legal theories that Gallagher Bassett intends to utilize in defending claims made by those injured in the bus accident.” The court found this argument to be conclusory, as FirstGroup failed to describe how or why the documents contained mental impressions.
Additionally, FirstGroup argued that the communications between counsel and Gallagher should have been afforded the protection of the attorney-client privilege because “unlike an insurance company, Gallagher is in a unique position and serves as a direct arm of Greyhound.” Gallagher was defense counsel “client representative,” and information relayed between Gallagher and its counsel should be afforded the same protection as if it were relayed directly to Greyhound. The court asserted, however, that FirstGroup cites no case law to support its contention. The issue was waived.
The court criticized appellants’ claim that any and all information contained in Gallagher’s file is privileged. Quoting the trial court, “Appellants have unreasonably and improperly claimed attorney-client privilege and mental impression privilege of Greyhound claims representatives [in order] to thwart proper discovery.” The trial court individually reviewed the hundreds of documents. Appellants, however, did not review the trial court’s decision “document by document,” and merely asserted the trial court erred in its ruling. Therefore, the court concluded, appellants failed to carry their burden of proof to claim privilege as to the second discovery request, and the trial court’s order was affirmed.
by Mark Bauman | Feb 22, 2023 | Commercial Litigation & Corporate Law, Legal News
In a recent decision, the Court of Common Pleas determined that claims for corporate negligence were sufficiently plead against a professional corporation. In Astleford v. Delta Medix, P.C., et al.[1], the trial court held that plaintiff’s claims for corporate negligence against Delta Medix, P.C. and Delta Medix, P.C. t/a The Center for Comprehensive Cancer Care (“Delta Medix”) was sufficiently plead to survive the preliminary objection phase. In the underlying case, the plaintiff filed suitagainst her treating physician as well as Delta Medix for radiating the wrong side of her neck/throat for treatment of squamous cell carcinoma.
In 2015, the plaintiff was diagnosed with squamous cell carcinoma the length of her right tonsil and into the soft palate and uvula. The defendant doctor scheduled the plaintiff for thirty-five (35) radiation treatments on the right side of her neck. After twenty-six (26) treatments, the defendant doctor notified the plaintiff that he had been radiating the wrong side of her neck. He offered her an additional seventeen (17) treatments on the right side of her neck, which was beyond the safe recommended dosage of radiation. Plaintiff’s complaint asserted claims for vicarious liability and corporate negligence against Delta Medix; and negligence, informed consent and intentional infliction of emotional distress against the defendant doctor.
After the complaint was filed, all defendants filed preliminary objections. Notably, the defendants argued that plaintiff’s claim of corporate negligence against Delta Medix could not be maintained because it is not a hospital or a health maintenance organization (“HMO”). Further, the defendants asserted that claims for corporate negligence have never been extended to the office of a physician or a private medical group. The defendants relied on the Supreme Court’s decision in Thompson v. Nason Hospital,[2] where a hospital’s liability in corporate negligencewas established, as well as, the Superior Court’s decision in Shannon v. McNulty[3], where the court determined that “an HMO is similar to a hospital in that the central role played by an HMO in the total health care of its subscribers is similar to that of a hospital’s role in the total health care of its patients.” The defendants argued that Delta Medix is a professional corporation providing specific cancer-related treatment services to its patients with a specialized focus regarding its scope and treatment, and therefore, cannot be classified as a comprehensive health care facility as referred to in Thompson.
In reaching its decision, the Court of Common Pleas relied on the 2012 Supreme Court decision in Scampone v. Highland Care Center, et al.[4] Scampone involved an action by a decedent’s estate against a nursing home and a corporation providing management services to the nursing home. The Court of Common Pleas opined that a fair reading of Scampone undercut the defendants’ argument that a claim for corporate negligence against Delta Medix could not stand. The Supreme Court in Scampone determined that “. . . a defendant is not categorically exempt from liability simply because appellate decisional law has not specifically addressed a theory of liability in a particular context. Categorical exemptions from liability exist . . . only where the General Assembly has acted to create explicit policy-based immunities. . . ” Id. at 599. Based on the Court of Common Pleas reading of the Supreme Court’s Scampone opinion, and in light of the fact that the defendants failed to point to any action of the General Assembly conferring the benefit of immunity on them, the Court of Common Pleas declined to extend immunity from corporate negligence claims.
Ultimately, the Court of Common Pleas found that the plaintiff pled sufficient facts to state a claim for corporate negligence against Delta Medix. Significantly, however, the Court noted that whether or not the claim survives is a question for another day.
[1] Astleford v. Delta medix, P.C., et al, 2016 Pa. Ct. Comm. Pl. (unpublished opinion)(June 8, 2016).
[2] Thompson v. Nason Hospital,527 Pa. 330, 591 A.2d 703 (Pa. 1991).
[3] Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998).
[4] Scampone v. Highland Park Care Center, et al., 57 A.3d 582 (Pa. 2012).
by Mark Bauman | Feb 22, 2023 | Legal Malpractice, Legal News
A unanimous Pennsylvania Superior Court panel reversed a $3.28M legal malpractice verdict against an attorney where Plaintiff-Appelle failed to timely file his claims within the two-year statute of limitations.
In the underlying matter in Lorenzo v. Milner v. Quaglia, Plaintiff-Appelle retained defendant attorney to defend him in foreclosure proceedings relating to commercial property Plaintiff-Appelle owned. A former tenant had vacated and vandalized the property on April 16, 2001, rendering the property un-rentable. Plaintiff-Appelle sought coverage from his insurance carrier. The insurance policy included a suit limitation clause prohibiting lawsuits after two years from the date the damage occurred. Accordingly, the date by which to file a lawsuit under the insurance policy was April 16, 2003. On November 5, 2003, the insurance carrier denied coverage of Plaintiff-Appelle’s claims.
Plaintiff-Appelle subsequently discharged defendant attorney and retained a second attorney who filed suit against Plaintiff-Appelle’s insurance carrier. The suit resulted in a $4 million verdict in favor of Plaintiff-Appelle and against the insurance carrier. The insurance carrier appealed the verdict and the Pennsylvania Superior Court reversed in February 2009.
On January 31, 2011, approximately eight years after the suit limitation clause had expired, Plaintiff-Appelle filed a legal malpractice action against defendant attorney for failure to file a timely claim against his insurance carrier.
Defendant attorney filed a Motion for Summary Judgment on the basis that the alleged breach of duty occurred in 2003, when the suit limitation expired, and that Plaintiff-Appelle’s claims should be barred because the two-year statute of limitations on legal malpractice claims had run. Plaintiff-Appelle argued that the statute of limitations was tolled during the pendency of the Superior Court appeal in the litigation against his insurance carrier. The trial court denied defendant attorney’s motion for summary judgment. At the conclusion of the trial, the jury returned a verdict in favor of Plaintiff-Appelle and against defendant attorney in the amount of approximately $3.28 million. Defendant attorney then filed an appeal to the Pennsylvania Superior Court.
The Pennsylvania Superior Court noted the application of the statute of limitations is a question of law reviewed de novo. Furthermore, Pennsylvania favors strict application of the statutes of limitation. Specifically, in legal malpractice claims the statute begins to run when the attorney breaches his or her duty, and is tolled only when the client, despite the exercise of due diligence, cannot discover such breach. The Court also noted that during the underlying insurance litigation, Plaintiff-Appelle testified that as of July 27, 2006, he was aware that his insurance policy contained a two-year suit limitation. Accordingly, the Court held that even applying the discovery rule, which would have tolled the statute of limitations until July 2008, the statute of limitations had run by the time Plaintiff-Appelle commenced suit three years later in 2011. In a footnote, the Court specifically rejected Plaintiff-Appelle’s argument that he could not file a legal malpractice action until the underlying litigation was finally resolved through the appeal process and reaffirmed Pennsylvania law that the statute of limitations is not tolled in legal malpractice actions until all appeals in the underlying actions have been exhausted.
