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Peer Reviews Initiated by Insurers Not Privileged

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A three judge panel upheld a Lackawanna County Court of Common Pleas ruling that the Pennsylvania Peer Review Protection Act’s (“PRPA”) privilege provision only applies to peer reviews initiated by a professional health care provider.  A medical peer review initiated by an insurance company for the purposes of deciding whether to maintain a business relationship with the doctors being reviewed is not privileged. 

The case at hand, Venosh v. Henzes, 1498 MDA 2013 (Pa. Super. Ct. July 11, 2014), involved a medical malpractice action against the plaintiff’s orthopedic surgeon.  Plaintiff alleged the defendant-doctor negligently injured her arteries and nerves during the surgery.  During the course of discovery, plaintiff served a discovery request asking for the production of any incident or event reports “which in any way reference facts surrounding the medical care of [plaintiff].”  Two reports were acknowledged, but defendant-doctor objected to the extent the request sought information that may be protected by the PRPA.  The reports at issue were reports initiated by Blue Cross with the purpose of determining whether or not it wanted to continue to cover defendant-doctor’s services. 

Plaintiff presented a discovery motion to the Special Trial Master, and the Master issued an order granting the motion and directing defendant-doctor to produce the event reports within twenty days.  Defendant-doctor appealed.  Defendant-doctor contended that the event reports were immune from discovery pursuant to section 311 of the Medical Care Availability and Reduction of Error Act (“MCARE”) and section 299b-22 of the Patient Safety Quality Improvement Act of 2005 (“PSQIA”).  Defendant-doctor argued the reports were prepared exclusively for the use of Patient Safety Improvement and Management Committee and were not shared with any other person or agency.  Additionally, defendant-doctor asked the Court to consider whether the incident reports were protected from discovery by the PRPA. 

The appellate court determined that the purpose of the PRPA was to protect peer reviews of one medical professional by another with the intention that it is a means of allowing the medical profession to “self police” the quality of its care.  Since Blue Cross was not a member of the medical profession it could not be involved in “self policing.”  The appellate court cited the Superior Court’s rulings in Yocabet v. UPMC Presbyterian, and McClellan v. Health Maintenance Organization, which defined peer review as a review that is initiated by a health care provider.

The PRPA grants qualified immunity for health care providers participating in a peer review process and establishes an evidentiary privilege applicable to peer review proceedings.  When a review is initiated by a non health care provider, such as an insurance company, without prompting from the health care provider, it falls outside the parameters of the PRPA.  For the foregoing reasons, the appellate court upheld the lower court’s ruling and required the defendant-doctor to produce the reports.


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