Sanders, C. v. The Children's Hosp.

J-A11003-22

2022 PA Super 199

CHRISTIANA SANDERS AND BRYAN : IN THE SUPERIOR COURT OF
SANDERS, AS CO-ADMINISTRATORS : PENNSYLVANIA
OF THE ESTATE OF M.S., AND :
CHRISTIANA SANDERS AND BRYAN :
SANDERS, IN THEIR OWN RIGHT :
:
:
v. :
:
:
THE CHILDREN’S HOSPITAL OF :
PHILADELPHIA :
: No. 646 EDA 2021
Appellant :

Appeal from the Order Entered March 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 171204286

SHEILA LIMPREVIL, AS CO- : IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF : PENNSYLVANIA
L.G.W., AND SHEILA LIMPREVIL, IN :
HER OWN RIGHT AND TERRELL :
WILLIAMS, AS CO-ADMINISTRATOR :
OF THE ESTATE OF L.G.W., AND :
TERRELL WILLIAMS, IN HIS OWN :
RIGHT :
:
:
v. :
:
:
THE CHILDREN’S HOSPITAL OF :
PHILADELPHIA :
: No. 648 EDA 2021
Appellant :

Appeal from the Order Entered March 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 180802309
J-A11003-22

COURTNEY GILL, AS : IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA
T.C.G., AND COURTNEY GILL AND :
TERRENCE GILL, IN THEIR OWN :
RIGHT :
:
:
v. :
:
:
THE CHILDREN’S HOSPITAL OF :
PHILADELPHIA :
: No. 659 EDA 2021
Appellant :

Appeal from the Order Entered March 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 180900385

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY BOWES, J.: FILED NOVEMBER 22, 2022

Before us are three consolidated interlocutory appeals from orders

which, inter alia, overruled the privilege objections of Children’s Hospital of

Philadelphia (“CHOP”) to the discovery requests of the appellees (collectively

“Plaintiffs”), who are the parents and estate administrators of three infants

who died after contracting an adenovirus in CHOP’s neonatal intensive care

unit (“NICU”).1 We affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion.

____________________________________________

1 This Court has jurisdiction over these appeals because they are from
collateral orders that are immediately appealable pursuant to Pa.R.A.P. 313.
See, e.g., Farrell v. Regola, 150 A.3d 87, 95 (Pa.Super. 2016) (“When a
party is ordered to produce materials purportedly subject to a privilege, we
have jurisdiction under Pa.R.A.P. 313.” (cleaned up)).

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I. Facts and Procedural History

Twenty-three infants, including Plaintiffs’ decedents, contracted an

adenovirus in CHOP’s NICU in the late summer of 2016. CHOP’s Infection

Prevention & Control (“IP&C”) Department became aware of the cluster of

adenovirus cases on August 22, 2016. It therefore began an investigation

pursuant to CHOP’s IP&C Plan “to find the cause and stop the outbreak,” led

by Dr. Julia Sammons, CHOP’s attending infectious disease physician, chair of

the IP&C Committee, and a member of CHOP’s Patient Safety Committee.

Sammons Deposition, 10/6/20, at 40. Dr. Sammons reported to Dr. Jan

Boswinkel, CHOP’s designated Patient Safety Officer pursuant to the Medical

Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. §§ 1303.101-

1303.910.

The fruits of the investigation were as follows. Dr. Sammons discovered

that the common event experienced by all infected babies was a retinopathy

of prematurity (“ROP”) eye examination. See Sammons Deposition, 10/6/20,

at 32.2 Subsequent testing of the equipment used in the examinations,

namely a hand-held lens and an indirect ophthalmoscope that never came in

contact with the patients, revealed the presence of the adenovirus. Id. at 32-

35. After observing the physicians perform ROP examinations, Dr. Sammons

____________________________________________

2 Dr. Sammons’s deposition appears in the certified record as Exhibit B to
Plaintiffs’ Reply to CHOP’s Response to Plaintiffs’ Motion to Strike Privilege
Objections filed on February 4, 2021.

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ultimately concluded that the virus was transmitted to each of the patients by

the doctor touching the contaminated equipment and then touching the

babies. Id. at 38-40. Accordingly, while CHOP had no hand hygiene or

equipment-specific cleaning policies for ROP examinations prior to the

outbreak, CHOP instituted both hand hygiene protocols and required bleach

cleaning of the equipment as a result of the investigation. Id. at 36, 123,

131.

In the process of gathering the information to make the above

discoveries, conclusions, and recommendations, the following meetings

occurred. Dr. Sammons reported to the Patient Safety Committee on August

25, 2016, regarding the investigation to date. The Committee requested that

Dr. Sammons persist with her efforts and continue to provide updates. See

Sammons Affidavit, 2/19/21, at 2-3.3 Between August 24 and September 6,

2016, Dr. Sammons periodically held “safety huddles” with members of the

IP&C Department and with doctors and nurses in the NICU, involving the

sharing of PowerPoint slides on August 24, 25, 29, 30, and 31, as well as

September 2, and 6, 2016. Id. at 4-5. While these safety huddles were

“frequently coordinated with the Patient Safety Officer,” many of these

meetings “were impromptu ad hoc meetings” outside of the established

____________________________________________

3 Dr. Sammons’s affidavit appears in the certified record as Exhibit A to
CHOP’s Supplemental Brief in Opposition to Plaintiffs’ Motion to Strike Privilege
Objections filed on February 19, 2021.

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Patient Safety Committee meetings for the collection and review of data. Id.

at 3; Sammons Deposition, 10/6/20, at 216. In addition to the sharing of

information, the meetings involved the evaluation of the actions of

professional health care providers, the quality of patient safety measures, and

recommendations for new or modified patient safety methods. Id. at 3.

On September 14 and October 12, 2016, Dr. Sammons and other

members of the IP&C Department reported to the IP&C Committee, utilizing

PowerPoint slides. These presentations involved the evaluation of IP&C and

NICU providers, discussions of possible improvements to health care quality,

and suggestions for new procedures and the monitoring of compliance

therewith. Id. at 6. A similar presentation, also including PowerPoint slides,

was given to CHOP’s Patient Safety Committee on September 22, 2016. Id.

CHOP held several Morbidity and Mortality (“M&M”) conferences related

to the outbreak. Specifically, on September 26, 2016, Dr. Sammons and other

doctors, utilizing PowerPoint slides, presented a Patient Safety M&M at

Dr. Boswinkel’s request as a subcommittee of the Patient Safety Committee.

Id. at 7-8. On October 4, 2016, PowerPoint presentations were made in

furtherance of “peer review and improving the quality of health care” to

professional health care providers at NICU and Ophthalmology M&M

conferences “to evaluate the services performed by other professional health

care providers, conduct practice analysis, and recommend improvements for

. . . services provided to CHOP patients.” Id. at 8-9. Similar programs, with

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slides, were presented at CHOP Ophthalmology Residents and Surgical

Division Chiefs M&M conferences on October 10 and 11, 2016, respectively,

as well as at the University of Pennsylvania’s Scheie Eye Institute’s M&M Grand

Rounds Conference on January 17, 2017. Id. at 9-11.

In the meantime, CHOP’s Patient Safety Committee directed a formal

root cause analysis (“RCA”) of the outbreak which resulted in an RCA report.

That report, which was submitted to the Patient Safety Committee,

summarized the gathering and evaluation of the information about the

outbreak and proposed a plan for preventing another one. Id. at 11. The

RCA report was presented to the Patient Safety Committee at its November

17, 2016 meeting.

Believing that the transmission of the virus through ophthalmology

equipment that does not come into direct contact with the patient was a novel

finding, Dr. Sammons also published an abstract and article about the

outbreak. Neither utilized any of the documents created during the course of

the investigation, but referenced the facts of the outbreak. Additionally, one

month after the outbreak, Dr. Monte Mills, the chief of CHOP’s Ophthalmology

Division, and Dr. Albert Maguire, an ophthalmologist who was not part of the

NICU treating team, exchanged emails concerning Dr. Maguire’s desire to

discuss the finding of the investigation in a paper. The subject of the email

was “NICU consult hygiene/infection control.”

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In December 2017 and August 2018, Plaintiffs filed survival and

wrongful death actions against CHOP alleging medical malpractice.

Specifically, Plaintiffs contended that CHOP was negligent in failing to follow

proper procedures for disinfecting the ophthalmology equipment. During the

course of discovery, Plaintiffs issued discovery requests to which the above-

identified documents were responsive. CHOP compiled a privilege log

identifying the documents and asserting privilege. CHOP also produced

affidavits from Drs. Sammons and Boswinkel asserting that the documents at

issue were created at the behest of CHOP’s Patient Safety Committee and

Officer for purposes of complying with its obligations pursuant to the MCARE

Act and “to conduct peer review.” See, e.g., Boswinkel Affidavit, 2/19/21, at

6.4

The trial court conducted an in camera review of the documents and

entertained written argument from the parties concerning the import and

consistency of the affidavits and the deposition testimony of Dr. Sammons

about the context and purposes of her investigation into the outbreak.

Thereafter, the trial court determined that CHOP failed to establish that certain

of the documents discussed above were privileged under the Peer Review

Protection Act (“PRPA”) or MCARE, and ordered their production to Plaintiffs.

____________________________________________

4 Dr. Boswinkel’s affidavit appears in the certified record as Exhibit B to
CHOP’s Supplemental Brief in Opposition to Plaintiffs’ Motion to Strike Privilege
Objections filed on February 19, 2021.

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This timely appeal followed, and both CHOP and the trial court complied with

Pa.R.A.P. 1925.

CHOP presents the following two claims on appeal:

1. Whether the trial court erred and abused its discretion
in concluding that a hospital failed to establish that certain
documents prepared for peer review and patient safety purposes
(including the hospital’s Root Cause Analysis, PowerPoint
presentations, meeting minutes, intranet postings and emails)
were protected from discovery by the [PRPA] or the [MCARE Act]
where: (1) the materials were prepared in accordance with the
statutes’ respective requirements; (ii) the hospital identified the
bases for each privilege on logs and affidavits; and (iii) the
hospital protected the documents from the public disclosure?

2. Whether the trial court erred and abused its discretion
in concluding that a defendant hospital waived its right to claim
protection under the PRPA and MCARE simply by publishing an
article and an abstract about the subject matter of documents
where: (1) the article and abstract merely referenced facts from
the privileged documents but did not disclose the documents
themselves; (ii) nothing in any statute or common law supports a
finding of waiver; and (iii) the article and abstract provided
potentially lifesaving information about a novel medical finding;
thus, any decision requiring the documents to be disclosed
violates public policy?

CHOP’s brief at 4. As CHOP’s two questions present intertwined concepts, we

address each aspect organically within our discussion rather than as distinct

issues.

II. Applicable Law

Initially, we note the general legal principles that guide our review. “The

issue of whether materials are privileged is a question of law.” Meyer-

Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 930, 937 (Pa.Super.

2016). Therefore, this Court conducts a de novo, plenary review. Id. To the

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extent that our review entails statutory interpretation, it also implicates

questions of law subject to de novo, plenary review. See, e.g.,

Commonwealth v. Chesapeake Energy Corp., 247 A.3d 934, 942 (Pa.

2021). “The object of all interpretation and construction of statutes is to

ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.

§ 1921(a). “The plain language of the statute is the best indicator of the

legislature’s intent. To ascertain the plain meaning, we consider the operative

statutory language in context and give words and phrases their common and

approved usage.” Chesapeake Energy Corp., supra at 942.

It is well-settled that evidentiary privileges are disfavored, and that their

use should be permitted “only to the very limited extent that excluding

relevant evidence has a public good transcending the normally predominant

principle of utilizing all rational means for ascertaining the truth.” BouSamra

v. Excela Health, 210 A.3d 967, 975 (Pa. 2019) (cleaned up). Regarding

the respective duties of the parties when a privilege is invoked, we have

observed that “[t]he party invoking a privilege must initially set forth facts

showing that the privilege has been properly invoked.” Yocabet v. UPMC

Presbyterian, 119 A.3d 1012, 1019 (Pa.Super. 2015) (cleaned up). “Once

the invoking party has made the appropriate proffer, then the burden shifts

to the party seeking disclosure to set forth facts showing that disclosure should

be compelled either because the privilege has been waived or because an

exception to the privilege applies.” Id. (cleaned up).

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A. The PRPA

Turning to the specific privileges at issue in this appeal, we first examine

the scope of the peer review privilege codified by the PRPA.5 Having

determined that, “because of the expertise and level of skill required in the

practice of medicine, the medical profession itself is in the best position to

police its own activities,” our legislature enacted the PRPA “to serve the

legitimate purpose of maintaining high professional standards in the medical

practice for the protection of patients and the general public[.]” Reginelli v.

Boggs, 181 A.3d 293, 300 (Pa. 2018) (cleaned up). The act encourages the

“the increased use of peer review groups by giving protection to individuals

and data who report to any review group[.]” Leadbitter v. Keystone

Anesthesia Consultants, Ltd., 256 A.3d 1164, 1169 (Pa. 2021) (cleaned

up). “These types of protections are viewed as helpful in fostering effective

peer review because of the perceived reluctance of members of the medical

community to criticize their peers and take corrective action.” Id. In sum,

“the PRPA is designed to foster candor and frankness in the creation and

consideration of peer-review data by conferring immunity from liability, as

well as confidentiality — all with the objectives of improving the quality of

____________________________________________

5 On August 29, 2022, Plaintiffs filed an application for post-submission
communication suggesting that we consider this Court’s decision in Williams
v. GEO Grp., Inc., ___ A.3d ___, 2022 PA Super 148, 2022 WL 3640469 at
*4 (Pa.Super. Aug. 24, 2022), in connection with the reach of the PRPA’s
privilege. Since that decision was withdrawn by order of October 19, 2022,
we deny the application.

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care, reducing mortality and morbidity, and controlling costs.” Leadbitter,

supra at 1169.

The confidentiality provision of the PRPA is as follows:

The proceedings and records of a review committee shall be held
in confidence and shall not be subject to discovery or introduction
into evidence in any civil action against a professional health care
provider arising out of the matters which are the subject of
evaluation and review by such committee and no person who was
in attendance at a meeting of such committee shall be permitted
or required to testify in any such civil action as to any evidence or
other matters produced or presented during the proceedings of
such committee or as to any findings, recommendations,
evaluations, opinions or other actions of such committee or any
members thereof: Provided, however, [t]hat information,
documents or records otherwise available from original sources
are not to be construed as immune from discovery or used in any
such civil action merely because they were presented during
proceedings of such committee, nor should any person who
testifies before such committee or who is a member of such
committee be prevented from testifying as to matters within his
knowledge, but the said witness cannot be asked about his
testimony before such a committee or opinions formed by him as
a result of said committee hearings.

63 P.S. § 425.4. The definition section of the PRPA includes the following

terms:

“Peer review” means 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, including practice analysis, inpatient hospital and
extended care facility utilization review, medical audit, ambulatory
care review, claims review, and the compliance of a hospital,
nursing home or convalescent home or other health care facility
operated by a professional health care provider with the standards
set by an association of health care providers and with applicable
laws, rules and regulations. . . .

“Professional health care provider” means:

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(1) individuals or organizations who are approved, licensed or
otherwise regulated to practice or operate in the health care field
under the laws of the Commonwealth, including, but not limited
to, the following individuals or organizations:

(i) a physician;

....
(viii) a registered or practical nurse;

....

(x) an administrator of a hospital, nursing or convalescent
home or other health care facility; or

(xi) a corporation or other organization operating a hospital,
nursing or convalescent home or other health care facility[.]

....

“Review organization” means any committee engaging in peer
review, including a hospital utilization review committee, a
hospital tissue committee, a health insurance review committee,
a hospital plan corporation review committee, a professional
health service plan review committee, a dental review committee,
a physicians’ advisory committee, a veterinary review committee,
a nursing advisory committee, any committee established
pursuant to the medical assistance program, and any committee
established by one or more State or local professional societies,
to gather and review information relating to the care and
treatment of patients for the purposes of (i) evaluating and
improving the quality of health care rendered; (ii) reducing
morbidity or mortality; or (iii) establishing and enforcing
guidelines designed to keep within reasonable bounds the cost of
health care. It shall also mean any hospital board, committee or
individual reviewing the professional qualifications or activities of
its medical staff or applicants for admission thereto. It shall also
mean a committee of an association of professional health care
providers reviewing the operation of hospitals, nursing homes,
convalescent homes or other health care facilities.

63 P.S. § 425.2. The term “review committee” is not defined in the PRPA, but

has been determined to mean “any committee that undertakes peer review.”

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Leadbitter, supra at 1176 (cleaned up). The word “proceedings” also is not

included in the definition section of the PRPA, but has been interpreted to

include a claim or other document received by a committee member in his

official capacity that initiates the peer review process. See Steel v.

Weisberg, 534 A.2d 814, 817 (Pa.Super. 1987).

Where a committee does not exclusively perform peer review functions,

“only peer-review documents are [subject to the privilege], and not the

committee’s documents more broadly.” Id. at 1178 n.19. The privilege does

not “protect non-peer review business records, even if those records

eventually are used by a peer review committee.” Dodson v. DeLeo, 872

A.2d 1237, 1243 (Pa.Super. 2005). As we explained:

a hospital cannot create protection for a document simply by
sending it to the peer review committee. On the other hand,
documents generated by a peer review committee specifically for
use in the peer review process are not discoverable simply
because some of the information contained therein is available
elsewhere. To hold otherwise would have a chilling effect on the
peer review process and would clearly run afoul of the purpose of
the statute.

Id. at 1244 (cleaned up).

In other words, the scope of the privilege afforded by the PRPA “is

limited to documents of a review committee that it utilized when it engaged

in peer review.” Id. (cleaned up). As such, the PRPA offers privilege only to

materials prepared in furtherance of “(i) evaluating and improving the quality

of health care rendered; (ii) reducing morbidity or mortality; or (iii)

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establishing and enforcing guidelines designed to keep within reasonable

bounds the cost of health care.” 63 P.S. § 425.2.

B. The MCARE Act

The MCARE Act was enacted to further the following policies: “to ensure

that medical care is available in this Commonwealth through a comprehensive

and high-quality health care system” and “to reduce and eliminate medical

errors by identifying problems and implementing solutions that promote

patient safety.” 40 P.S. § 1303.102(1), (5). The patient safety chapter of the

MCARE Act, 40 P.S. §§ 1303.301-1303.315, “relates to the reduction of

medical errors for the purpose of ensuring patient safety.” 40 P.S.

§ 1303.301.

For example, § 307(b)(3) requires medical facilities to develop and

implement patient safety plans that, inter alia, establish a system for its health

care workers to report serious events6 and incidents.7 Section § 309 provides

that a patient safety officer must “[e]nsure the investigation of all reports of

____________________________________________

6 A serious event is “[a]n event, occurrence or situation involving the clinical
care of a patient in a medical facility that results in death or compromises
patient safety and results in an unanticipated injury requiring the delivery of
additional health care services to the patient. The term does not include an
incident.” 40 P.S. § 1303.302.

7 The definition of the term “incident” excludes serious events and states that
it is “[a]n event, occurrence or situation involving the clinical care of a patient
in a medical facility which could have injured the patient but did not either
cause an unanticipated injury or require the delivery of additional health care
services to the patient.” 40 P.S. § 1303.302.

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serious events and incidents,” take any action “immediately necessary to

ensure patient safety as a result of any investigation,” and to report actions

taken as a result of an investigation to promote patient safety to the patient

safety committee. 40 P.S. § 1303.309(2)-(4). As for the composition of a

patient safety committee, the MCARE Act specifies as follows:

A hospital’s patient safety committee shall be composed of the
medical facility’s patient safety officer and at least three health
care workers of the medical facility and two residents of the
community served by the medical facility who are not agents,
employees or contractors of the medical facility. No more than
one member of the patient safety committee shall be a member
of the medical facility’s board of trustees. The committee shall
include members of the medical facility’s medical and nursing
staff. The committee shall meet at least monthly.

40 P.S. § 1303.310(a)(1).

Pursuant to § 308, “A health care worker who reasonably believes that

a serious event or incident has occurred shall report the serious event or

incident according to the patient safety plan of the medical facility unless the

health care worker knows that a report has already been made.” 40 P.S.

§ 1303.308(a).

Subsection 310(b) imposes on a medical facility’s patient safety

committee the obligations to:

(1) Receive reports from the patient safety officer pursuant to
section 309.

(2) Evaluate investigations and actions of the patient safety officer
on all reports.

(3) Review and evaluate the quality of patient safety measures
utilized by the medical facility. A review shall include the

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consideration of reports made under sections 304(a)(5) and (b),
307(b)(3) and 308(a).

(4) Make recommendations to eliminate future serious events and
incidents.

(5) Report to the administrative officer and governing body of the
medical facility on a quarterly basis regarding the number of
serious events and incidents and its recommendations to eliminate
future serious events and incidents.

40 P.S. § 1303.310(b).

Since a patient safety committee organized pursuant to § 310(a)(1) of

the MCARE Act includes members of the community that are not professional

health care providers, the patient safety committee cannot constitute a peer

review committee whose proceedings are protected by the PRPA. See

Ungurian v. Beyzman, 232 A.3d 786, 800 (Pa.Super. 2020) (“Because the

Patient Safety Committee includes members of the community served by

Hospital, the Committee is not exclusively comprised of ‘professional

healthcare providers.’ Accordingly, Hospital failed to satisfy its evidentiary

burden of proving the applicability of the PRPA privilege to the Patient Safety

Committee Meeting Minutes.”). Instead, the MCARE Act contains a separate

confidentiality provision which provides as follows in pertinent part:

(a) Prepared materials.--Any documents, materials or
information solely prepared or created for the purpose of
compliance with section 310(b) or of reporting under section . . .
307(b)(3), 308(a), 309(4), [or] 310(b)(5) . . . which arise out of
matters reviewed by the patient safety committee pursuant to
section 310(b) . . . are confidential and shall not be discoverable
or admissible as evidence in any civil or administrative action or
proceeding. Any documents, materials, records or information
that would otherwise be available from original sources shall not

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be construed as immune from discovery or use in any civil or
administrative action or proceeding merely because they were
presented to the patient safety committee . . . .
(b) Meetings.--No person who performs responsibilities for or
participates in meetings of the patient safety committee . . .
pursuant to section 310(b) shall be allowed to testify as to any
matters within the knowledge gained by the person’s
responsibilities or participation on the patient safety committee
. . . provided, however, the person shall be allowed to testify as
to any matters within the person’s knowledge which was gained
outside of the person’s responsibilities or participation on the
patient safety committee . . . pursuant to section 310(b).

(c) Applicability.--The confidentiality protections set forth in
subsections (a) and (b) shall only apply to the documents,
materials or information prepared or created pursuant to the
responsibilities of the patient safety committee . . . set forth in
section 310(b).

40 P.S. § 1303.311.

Hence, to be privileged pursuant to the MCARE Act, the materials must:

(1) be solely prepared for compliance with an enumerated MCARE Act duty,

(2) arise out of matters reviewed by the patient safety committee in

accordance with § 310(b), and (3) not be otherwise available from original

sources. See 40 P.S. § 1303.311(a). See also Venosh v. Henzes, 11 CV

3058, 2013 WL 9593953 (Lackawanna County C.C.P. July 17, 2013), aff’d,

105 A.3d 788 (Pa.Super. 2014) (unpublished memorandum) (gleaning from

the plain language of § 311 the foregoing three requirements for MCARE Act

confidentiality to apply).

III. Analysis

We now proceed to apply the above statutes to each of the documents

at issue in this appeal seriatim.

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A. The Root Cause Analysis Report

The trial court ruled that the RCA report was not protected because

“CHOP has failed to meet their burden in proving which specific privilege

applies supported by sufficient information proving that this report was

created specifically for the hospital’s event reporting system or peer review

committee meeting by including such information as who prepared the report

and when it was prepared.” Trial Court Opinion, 7/19/21, at 8.

The trial court’s conclusion is belied by the record. CHOP produced the

affidavit of Dr. Boswinkel, CHOP’s designated Patient Safety Officer pursuant

to the MCARE Act, who indicated that the report was prepared by a “root cause

analysis team” at the behest of the Patient Safety Committee. See Boswinkel

Affidavit, 2/19/21, at 5. The report was marked as confidential and annotated

with “Peer Review/MCARE Protected” and was submitted to the Patient Safety

Committee and presented at its November 17, 2016 official meeting. Id. at

6. The function of the root cause analysis report was to satisfy “the

responsibilities of the Patient Safety Committee under MCARE Act Section

310(b), including evaluating the quality of patient safety measures in place

and recommending steps to eliminate future series events and incidents,” as

well as the duty “as the Patient Safety Officer under MCARE Act Section 309(4)

to report to the Patient Safety Committee regarding actions taken to promote

patient safety.” Id. CHOP also produced Dr. Sammons’s affidavit which

indicated that she was a member of the root cause analysis team and that the

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team compiled the report and presented it to the Patient Safety Committee at

Dr. Boswinkel’s direction to evaluate the existing patient safety measures and

recommend steps to eliminate future serious events. See Sammons Affidavit,

2/19/21, at 11.

Plaintiffs rightly argue in their brief that the root cause analysis report

was not protected by the PRPA. See Plaintiff’s brief at 30-32. We agree that

CHOP did not establish that the PRPA privilege attached to the root cause

analysis. See Ungurian v. Beyzman, 232 A.3d 786, 798 (Pa.Super. 2020)

(concluding that the hospital’s failure to establish that the members of the

root cause analysis team were “professional healthcare providers” defeated a

claim of PRPA privilege).

However, Plaintiffs’ only argument against MCARE Act privilege is that,

because it “was created first to aid the response” to the outbreak and then

later submitted to the Committee, it was not “solely” created to satisfy MCARE

Act obligations and, consequently, was not privileged. Id. at 31 (quoting not

the evidence of record but COP’s appellate brief). We disagree.

The lack of detail as to the timing of the report’s creation or the

members of the root cause analysis team is immaterial to the applicability of

the MCARE confidentiality provision.8 The evidence of record detailed above

demonstrates that CHOP met its burden of establishing that the root cause

____________________________________________

8 Of note, this Court was not presented with a claim of MCARE Act privilege
in Ungurian v. Beyzman, 232 A.3d 786, 798 (Pa.Super. 2020).

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analysis report was (1) solely prepared for compliance with the MCARE Act

duties for the Patient Safety Officer to report, and the Patient Safety

Committee to receive, accounts of investigations into serious events and

suggestions to improve patient safety; (2) arose out of matters that were

indeed reviewed by the patient safety committee in accordance with § 310(b);

and (3) was not otherwise available from original sources. See 40 P.S.

§ 1303.311(a). Therefore, pursuant to § 311(a), the root cause analysis

document prepared for compliance with § 310(b) is itself subject to the

privilege. Thus, we reverse the portion of the trial court’s order directing

CHOP to produce the root cause analysis report stamped Sanders CHOP PRIV

000033-000039.

B. PowerPoint slides

As detailed in our factual history above, Dr. Sammons prepared and

presented PowerPoint slides on numerous occasions during and after the

outbreak, namely: in “safety huddles” between August 24 and September 6,

2016; at Infection Prevention & Control meetings on September 14 and

October 12, 2016; at M&M conferences held with CHOP personnel on

September 26, October 4, October 10, and October 11, 2016; and at the

Scheie Eye Institute M&M conference on January 12, 2017.

The trial court lumped all the PowerPoint presentations together and

concluded that the materials “were not created for purposes of peer review

triggering MCARE or PRPA protections.” Trial Court Opinion, 7/19/21, at 8.

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Rather, it determined that the documents were created in the course of

addressing and stopping the outbreak and that they were only later sent to

the peer review committee “in an effort to obtain privileged status.” Id. at 9.

Further, the court determined that, by “announcing the investigations,

findings, and remedial actions taken based upon the investigation” to the

public in the article and abstract, CHOP waived the right to PRPA and MCARE

protections concerning the investigation and remedial measures. Id. at 13.

CHOP contends that different privileges applied to different PowerPoint

presentations. Specifically, it asserts that the presentations at the “safety

huddles” are protected by MCARE; the presentation to the M&M conferences

and at the Scheie Eye Institute were peer review meetings protected by the

PRPA; and the presentations to the Infection Prevention & Control meetings

are protected by both acts. See CHOP’s brief at 40. CHOP argues that the

trial court’s focus on when the documents were created rather than the reason

for it is unsupported in the law. Id. at 41.

We first observe that the statutory privileges are not waived or

otherwise invalidated by the fact that details of how the outbreak occurred

and the measures that were ultimately implemented to reduce the risk of

future outbreaks may have been disclosed in a published article and abstract.9

____________________________________________

9 On appeal, Plaintiffs distance themselves from any claim that waiver was
applicable, insisting that the trial court did not rule that any of the documents
at issue were discoverable based upon waiver of a privilege, but instead
(Footnote Continued Next Page)

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See Dodson, supra at 1244 (explaining that a privileged document does not

become discoverable “simply because some of the information contained

therein is available elsewhere”).

Both the PRPA and the MCARE Act include varying protections for both

documents and information, and provide, absolutely and without exception,

that the protected materials shall not be discoverable or admissible, and that

no one is permitted to testify in a civil action about protected information such

as testimony before a committee or opinions formed as a result of committee

meetings. See 63 P.S. § 425.4; 40 P.S. § 1303.311(a), (b). Both statutes,

however, allow for the disclosure by committee members of information within

their personal knowledge gleaned outside of their participation in the

confidential proceedings.10 Id.

Our prior discussion of the law indicates that both statutory privileges

were designed to foster the frank and open discussion of the quality of health

care services provided without fear that such will be used against the hospital

or other professional health care providers in litigation. However, the disfavor

____________________________________________

because CHOP “failed to substantiate that any of the materials at issue in this
appeal met the qualifications for privilege.” Plaintiffs’ brief at 46.

10 For example, as our summary at the outset of this opinion reveals, in her
deposition Dr. Sammons provided Plaintiffs with factual information that was
within her personal knowledge concerning the outbreak, the investigation, and
CHOP’s response to it, rather than information she gleaned through protected
materials or meetings. However, counsel did not permit Dr. Sammons to
testify about information that she obtained from a peer review meeting. See
Sammons Deposition, 10/6/20, at 323.

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with which evidentiary privileges are viewed remains. Thus, our legislature

carefully chose language to establish that, while the facts and information

independently brought into confidential meetings and investigations may be

discoverable, the documents created for and proceedings themselves are what

is privileged. As a court in one of our sister states aptly observed:

Regardless of how information is used for improvement
purposes or discussed by one party or entity outside of the
process, the statute clearly does not intend that the peer review
process should be voided, waived, or destroyed. To hold
otherwise subverts [the statute] and the purpose of the peer
review process. One has only to read the statute to realize the
. . . General Assembly did not create a privilege so frail and
delicate as to be shattered by a mere reference to findings arising
from the peer review process. If one cannot use the information
generated from a peer review, the entire process is nullified and
the statutory intent defeated.

Stewart v. Vivian, M.D., 2012-Ohio-228, 2012 WL 195020 at *8 (Ohio App.

Jan. 23, 2012).

Having rejected the notion of waiver, we consider whether the

PowerPoint slides are materials protected by either statute, beginning with the

“safety huddle” documents. CHOP maintains that the “safety huddles” were

meetings of the patient safety committee in compliance with § 310(b) of

MCARE, rendering slides created solely for presentation there to be privileged

under § 311(a). Plaintiffs assert that the “slides were not formulated within a

patient safety committee convened to evaluate the hospital’s response to a

serious event,” but rather “as part of CHOP’s active response to an ongoing

patient care emergency[.]” Plaintiff’s brief at 25-26.

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The affidavits of Drs. Boswinkel and Sammons indicate that the ad hoc

meetings held in the NICU from the time the cluster of infections was reported

until September 6, 2016, were in fulfillment of Dr. Boswinkel’s ongoing duty

as Patient Safety Officer pursuant to § 309 to “[e]nsure the investigation of

all reports of serious events and incidents,” to take any action “immediately

necessary to ensure patient safety as a result of any investigation,” and to

report actions taken as a result of an investigation to promote patient safety

to the patient safety committee. 40 P.S. § 1303.309(2)-(4). See Boswinkel

Affidavit, 2/19/21, at 2-3; Sammons Affidavit, 2/19/21, at 3-4.

As such, these documents were not some form of incident reports or

other mere business records designed to document the occurrences for future

litigation or risk management. See Atkins v. Pottstown Mem’l Med. Ctr.,

634 A.2d 258, 260 (Pa.Super. 1993) (holding incident report prepared for risk

manager was an unprivileged business record because it was not part of an

evaluation or review by a peer review committee); Venosh, supra at *11

(holding event reports were not privileged where there was no evidence that

they were generated to comply with an MCARE patient safety reporting

requirement or ever reviewed by the patient safety committee). Rather, the

evidence produced by CHOP established that the documents were (1) solely

prepared for compliance with the MCARE Act duties for the Patient Safety

Officer to conduct investigations into serious events and suggestions to

improve patient safety; (2) arose out of matters that were indeed reviewed

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by the patient safety committee in accordance with § 310(b); and (3) were

not otherwise available from original sources. See 40 P.S. § 1303.311(a).

Accordingly, we reverse the trial court’s order to the extent that it compelled

production of the slides stamped Sanders CHOP PRIV 000044-000107.

For the same reasons, the PowerPoint slides prepared following the

completion of the investigation for presentation at the formal Patient Safety

Committee Meeting conducted on September 22, 2016, and the Safety M&M

conference on September 26, 2016, are confidential materials pursuant to

§§ 310(b) and 311 of the MCARE Act. See Boswinkel Affidavit, 2/19/21, at

3-5. We therefore reverse the trial court’s order insofar as it requires CHOP

to produce the documents stamped Sanders CHOP PRIV 000122-000159.

Finally, we consider the PowerPoint slides prepared for the other M&M

conferences held at CHOP and the Scheie Eye Institute Grand Rounds

Conference. As noted above, CHOP asserts that these are peer review

materials that are protected by the PRPA. Plaintiffs contend that CHOP’s claim

that these documents were privileged was properly rejected because, by not

identifying each person who attended the M&M conferences, CHOP “failed to

satisfy its burden to prove that the people who heard Dr. Sammons’[s]

lectures were even capable of conducting peer review” or that the meetings

were organized for evaluation “of the quality and efficiency of services ordered

or performed by other professional health care providers.” Plaintiffs’ brief at

42.

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We agree with CHOP that it produced evidence to show that these

documents fell squarely within the protections of § 425.2 of the PRPA. As

noted above, that section extends privilege to materials prepared for “(i)

evaluating and improving the quality of health care rendered; (ii) reducing

morbidity or mortality; or (iii) establishing and enforcing guidelines designed

to keep within reasonable bounds the cost of health care.” 63 P.S. § 425.2.

Contrary to Plaintiffs’ assertions, Dr. Sammons’s affidavit expressly indicates

that each of the conferences was attended exclusively by professional health

care providers and that the “slides were intended only for purposes of

conducting peer review and improving the quality of health care.” Sammons

Affidavit, 2/19/21, at 8-10, 12.

Indeed, morbidity and mortality conferences attended solely by

professional health care providers are precisely the peer review actions that

the PRPA was designed to encourage. As CHOP notes, one court recently

observed that to find that M&M materials were not protected by the PHRA

“would contravene the precise purpose for which [the PRPA’s] protections

were enacted.” CHOP’s brief at 43 n.27 (quoting Morrissey v. Geisinger

Cmty. Med. Ctr., 3:19-CV-894, 2020 WL 6877183, at *3 (M.D. Pa. Nov. 23,

2020)). See also Bridenstine v. Saint Francis Hosp. & Med. Ctr., 68 A.3d

127, 133 (Conn. App. 2013) (affirming trial court ruling based upon its finding

that the happenings at an M&M conference were subject to peer review

privilege). Therefore, we reverse the trial court’s direction for CHOP to

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produce the documents stamped Sanders CHOP PRIV 000129-000216 and

000221-000245.

C. PowerPoint Slides and Minutes from IP&C Committee
meetings on September 14 and October 12, 2016

The trial court considered together Dr. Sammons’s PowerPoint slides

presented at IP&C Committee meetings and the resultant meeting minutes.

Although the IP&C Committee is a peer review committee, the trial court

concluded that meetings were “held to address and stop the outbreak” and

not for purposes of peer review committee. See Trial Court Opinion, 7/19/21,

at 8. The court likened the documents to incident reports that were submitted

to cloak them with privilege. Id. Plaintiffs agree, and further argue that the

documents were not solely prepared as part of the Patient Safety Committee’s

evaluation of CHOP’s response to the outbreak, but rather “they were a part

of the response itself.” Plaintiffs’ brief at 35.

CHOP argues that the minutes from meetings of the IP&C Committee, a

designated peer review committee, are protected by both the PRPA and

MCARE. See CHOP’s brief at 40. It contends that the purpose of the meetings

was to evaluate the ophthalmologists’ practice, the outbreak response, and

compliance with CHOP procedures, as well as to discuss steps to improve

healthcare quality and patient safety in the future. Id. at 15.

Our review of the certified record reveals that CHOP produced evidence

to support these contentions. Specifically, the affidavit and deposition

testimony of Dr. Sammons provides that the IP&C Committee is a peer review

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sub-committee of the Patient Safety Committee that conducts investigations

and reports to the Patient Safety Committee. Dr. Sammons prepared slides

to present at meetings to assist it in “evaluating the outbreak response by

Infection Prevention providers and NICU providers, evaluated the

ophthalmologists’ practices, discussed monitoring of compliance with policies

and procedures and evaluated next steps to prevent recurrence.” Sammons

Affidavit, 2/19/21, at 6. The Committee further discussed its upcoming

reports to the Patient Safety Committee. Id.

Again, § 310(b) of the MCARE Act tasks a patient safety committee with,

inter alia, evaluating investigations directed by the patient safety officer,

reviewing and evaluating the quality of the hospital’s patient safety measures,

and making recommendations to eliminate future serious events. See 40 P.S.

§ 1303.310(b)(2)-(4). That is precisely what Dr. Sammons described. The

notion proffered by Plaintiffs and accepted by the trial court that a patient

safety committee must merely accept incident reports and not perform a

review and evaluation or recommend changes in procedures until after

a serious event has completely run its course is irrational and unsupported by

the language of the MCARE Act. On the contrary, such is the exact type of

frank, open, and proactive proceedings that the Act sought to implement in

furtherance of its goal “to reduce and eliminate medical errors by identifying

problems and implementing solutions that promote patient safety.” 40 P.S.

§ 1303.102(5). Therefore, without having to consider the PRPA, it is clear to

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us that the slides Dr. Sammons presented at the IP&C Committee meetings

and the minutes taken of those meetings are privileged by § 311(a).

Consequently, we reverse the trial court's order to the extent that it mandated

production of the documents stamped Sanders CHOP PRIV 000006-000032,

000108-000122, and 000217-220.

D. PowerPoint slides from the Patient Safety Committee
meeting on September 22, 2016

The next document at issue involves the slides Dr. Sammons presented

at the Patient Safety Committee meeting that the IP&C Committee discussed

in the documents we just reviewed. CHOP again asserts MCARE Act privilege,

and Plaintiffs again contend that the slides were part of the response rather

than a review of the hospital’s response. See Plaintiff’s brief at 37. For the

reasons offered above, we conclude that CHOP established that the documents

were utilized in the report to the Patient Safety Committee in accordance with

§ 310(d) of the MCARE Act and are consequently protected by § 311(a).

Hence, we reverse the trial court’s order to the extent that it mandated

production of the documents stamped Sanders CHOP PRIV 000122-000128.

E. Intranet postings to CHOP personnel about the outbreak

The next documents at issue identified in CHOP’s privilege log were two

postings on CHOP’s intranet website: one in August 2016 entitled “CHOP

Serious Safety Events” and one in February 2017 entitled “Learning from our

Safety Events.” The trial court ruled that no privilege applied to these

materials, which were available to all CHOP personnel who had access to a

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computer. In doing so, the court did not offer a detailed analysis of the

document which it described as a “job ad.” See Trial Court Opinion, 7/19/21,

at 8.

CHOP argues that these intranet posts fell within the MCARE privilege

because they “notified CHOP personnel of events for the purpose of

compliance with (d) of the section 310(b) or of reporting under section 309(4),

and arise out of matters reviewed by the patient safety committee pursuant

to section 310(b) or the governing board of a medical facility pursuant to

section 310(b).” CHOP’s brief at 18.

We disagree. Dr. Boswinkel’s affidavit indicates that the purpose of the

posts “was to notify CHOP personnel of events to increase awareness,

encourage learning from events, and to recommend actions to prevent future

serious events or incidents.” Boswinkel Affidavit, 2/19/21, at 7. Further, the

communications “accomplish the general purposes of promoting patient

safety, quality improvement, and improving patient care.” Id.

The MCARE Act does not protect any and all materials involving patient

safety. Rather, it addresses in §§ 309 and 310(d) reports to the patient safety

committee and the committee’s internal deliberations about what occurred

and what altered policies might better serve patient safety. CHOP points to

nothing within the MCARE Act that protects subsequent communications from

the patient safety committee to the institution at large announcing the new

policies decided upon as a result of their confidential proceedings. We discern

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no provision of the Act that expresses an intention to forever shield from

discovery hospital policies that arose from patient safety committee meetings.

Rather, it seeks to protect the confidentiality of the investigation and

assessment of the serious events that occasioned the policies.

Therefore, CHOP has failed to establish that the trial court committed

an error of law in ordering the production of the intranet posts stamped

Sanders CHOP PRIV 000040-000043.

F. Redacted ophthalmology emails

Finally, CHOP argues that the trial court erred in ordering the full

disclosure of what it describes as “redacted ophthalmology emails (CHOP PRIV

280-285).” CHOP’s brief at 45. It maintains that “[t]he redacted portion of

the emails contained information that is protected from disclosure pursuant to

the MCARE and peer review privileges because it references action plans that

were part of the peer review process and taken under MCARE precautions.”

Id. at 45-46.

That is the extent of CHOP’s argument. It offers no indication that it

provided the trial court with evidence that these emails were made pursuant

to a peer review evaluation or in furtherance of MCARE reporting. Instead,

CHOP appears to assert, as it did with the intranet postings, that the emails

contain information about the new policy or procedures that resulted from the

earlier peer review or patient safety proceedings. As such, CHOP failed to

meet its burden of establishing that these emails were privileged

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communications within CHOP’s peer review or patient safety apparatus.

Hence, we have no cause to disturb the trial court’s ruling as to these

documents.

IV. Conclusion

We understand that Plaintiffs have the ultimate burden of proving that

their heartbreaking losses resulted from CHOP’s negligence, and that

accessing the documents at issue would lighten that burden. However, our

legislature has recognized that the public has a competing, compelling interest

in creating an environment in which improving the quality of health care by

examining and learning from past incidents is not eschewed for fear that the

honest assessment thereof could be used against health care providers to

impose legal liability. In this vein, we find our Supreme Court’s observations

on the effects of peer review privilege are applicable to both of the

confidentiality provisions at issue in this appeal:

We recognize that the statutory privilege as thus understood may
prevent civil plaintiffs from obtaining some documents tending to
show that their injuries were caused by the defendant’s
negligence, whether it be that of the physician or the facility at
which he or she maintains privileges. However, the legislative
body is presumed to have balanced that consideration against
others, discussed above, which may be in tension with it, and to
have intentionally used language applying to a variety of
committees whose proceedings and records involve peer review
[and MCARE Act patient safety reporting]. . . .

[T]he convergence of medicine and litigation at times brings about
discordant results: the furtherance of one end may
commensurately disadvantage the other. All privileges
necessarily hinder to some degree the information available to
opposing litigants. Similarly, assigning paramount status to a

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plaintiff’s pursuit of a legal remedy can strike a fatal blow to a
procedural framework erected to enhance patient safety. The
General Assembly, in enacting [the statutory privileges], clearly
voiced an intention to allow for the confidentiality necessary for
meaningful peer [and MCARE Act] review.

Leadbitter supra at 1177–78 (cleaned up).

We have made our rulings herein to fulfill our duty to ensure the faithful

application of the policy determinations and interest-balancing enacted by the

Commonwealth’s elected representatives.

Orders affirmed in part and reversed in part. Case remanded for further

proceedings consistent with this opinion. Jurisdiction relinquished.

Judge Stabile joins this Opinion.

Judge McLaughlin files a Concurring & Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/22/2022

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