Documents and communications generated by a hospital during a governmental agency’s investigation of a failed medical procedure are not protected from discovery by the Pennsylvania Peer Review Protection Act, 63 P.S. §425.1 et seq., the Superior Court held in Yocabet v. UPMC Presbyterian and University of Pittsburgh Physicians, __ A.3d __ (No. 569 WDA 2014, 1230 WDA 2014, filed June 5, 2015). These consolidated appeals by UPMC Presbyterian Shadyside from pretrial discovery orders relate to two lawsuits arising from a kidney transplant. As a result of the procedure, the donee contracted Hepatitis C from the donor’s infected kidney. Both patients sued UPMC, and the Pennsylvania Department of Health (DOH), on behalf of the Centers for Medicare and Medicaid Services (CMS), conducted an investigation. During discovery the plaintiffs sought documents and interviews submitted by UPMC during the CMS/DOH investigation. The trial court rejected UPMC’s claim that the records were protected by the peer review privilege and allowed discovery. The trial court also allowed discovery of information about a UPMC board of directors meeting, holding that it was not protected by attorney-client privilege. UPMC appealed.
The Superior Court affirmed 2-1. Writing for the majority, Judge Bowes examined the plain language of the Peer Review Act’s confidentiality provision, which aims to “facilitate self-policing in the health care industry.” Thus, peer review occurs only when one professional health care provider is evaluating another professional health care provider. The Court concluded that the records tendered by UPMC for the CMS/DOH investigation were not protected under the Peer Review Act because neither DOH nor CMS are “professional health care providers.” The fact that these entities employ health care providers to conduct investigations is of no moment. The Court also rejected UPMC’s assertion that a record or document is automatically covered by the peer review privilege merely because it was forwarded to a peer review committee. As for the discovery of information presented at UPMC’s board meeting, the Court concluded that both the attorney-client privilege and the peer review privilege could be applicable and remanded the matter for the trial court to conduct in camera review.
In a concurring and dissenting opinion, Judge Strassburger agreed with the majority that the records UPMC produced during the CMS/DOH investigation were not protected by the peer review privilege. Judge Strassburger would also have affirmed the trial court’s order allowing discovery of the board meeting information. He opined that UPMC offered no evidence that the information related to a discussion with legal counsel, and failed to adequately develop its argument in support of its peer review privilege claim.