Did business mgr.'s participation void peer review privilege?

CASE ON POINT: Piroli v. Lodico, 2006 P. Super. 291 (Pa. Super. 10/12/2006) A.2d -PA

ISSUE: Ordinarily, peer review records are not subject to disclosure in suits suit against hospitals and/or physicians on its staff or having privileges. However, in this unusual Pennsylvania case, an issue arose as to whether, because a hospital failed keep the records completely confidential, the hospital had waived the peer review privilege.

CASE FACTS: On September 17, 2001, Dr. Mark LoDico performed a transforaminal epidural steroid injection (a type of nerve block), at the C-7 level on Cathy Piroli. Cathy died the following day. On July 18, 2002, Cathy's husband, David Piroli, brought suit against Sewickley Valley Hospital, Dr. LoDico, and others. He alleged that Dr. LoDico punctured Cathy's left vertebral artery, and during the injection of a steroid and anesthetic solution, Cathy became unresponsive, and an ambulance transported Cathy to Sewickley Valley Hospital, which transferred her to Allegheny General Hospital that same day. Cathy died at Allegheny the following day, September 18. On January 28, 2003, during the course of discovery, Piroli filed a notice of his intention to serve a subpoena for a complete copy of the records in the possession of the defendants with regard to the treatment of Cathy by Dr. LoDico on September 17, 2001, "including but not limited to letters, medical reports, medical records photographs, films, expert reports, consultation reports, memorandum, summaries, audiotapes, videotapes and any other tangible things." The defendants filed an objection (tantamount to a motion to quash the subpoena) on the grounds that some of the material sought under the subpoena was not subject to disclosure under the peer review privilege. During the course of a hearing on the matter Glenn Daugherty, the hospital's Executive Director, testified that both he and a billing manager, both of whom were not professional health care providers, were present during peer review proceedings. The Court of Common Pleas of Allegheny County overruled the defendants' objections to the subpoena on the grounds that Pennsylvania's Peer Review Protection Act (PRPA) was not applicable since the peer review process had been conducted in the presence of, inter alia, the hospital's billing manager, who was not a health care provider. The court ordered the hospital to produce the records. The hospital (and other defendants) appealed.

COURT'S OPINION: The Superior Court of Pennsylvania reversed the judgment of the lower court and remanded the case back to the court. The court held, inter alia, that the licensed facility was required to comply with certain Pennsylvania regulations with regard to quality of care reviews. The court noted that "with active participation of the medical and nursing staff," ambulatory care facilities are required to "conduct an ongoing quality assurance and improvement program designed to objectively and systematically monitor and evaluate the quality and appropriateness of patient care, pursue opportunities to improve patient care and resolve identified problems." The court went on to observe that the program must include "peer-based review of clinical performance of individuals with clinical privileges." The court noted that the law dictates who must be on the quality assurance and improvement committee of an ambulatory care facility. Specifically, the committee "shall" consist of not only health care practitioners, but also a "representative of administration." Indeed, the PRPA includes "ambulatory care review" under the definition of "peer review." Thus, the court concluded that it would be onerous and unnecessary to require the facility to conduct essentially the same proceedings, one without the billing manager present and one with him present and, at the same time, comply with the regulations.

LEGAL COMMENTARY: The court rejected Piroli's argument that the "billing manager's presence alone, not the nature of his role, in the ... proceedings, is the controlling question" and that "the billing manager's role indicates the scope and purpose of the committee's work went beyond that of a traditional medical review team." Editor's Note: Despite the outcome in this case, hospital and all of those entrusted to participate in the peer review process, must be zealous in their efforts to ensure that there is neither no act or factor that will, in any way, infringe upon the confidentiality of the entire peer review process. Some may seriously question whether there should be anyone in attendance at any peer review proceeding who is not a necessary participant in the peer review process. Failure to do so may undermine the integrity of the confidentiality component of genuine peer review. This, we cannot afford to do!

A. David Tammelleo JD Editor & Publisher