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. :
: No. 646 EDA 2021
:
THE CHILDREN'S HOSPITAL OF :
PHILADELPHIA :
:
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 : PENNSYLVANIA
OF 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 :
: No. 648 EDA 2021
:
v. :
:
:
THE CHILDREN'S HOSPITAL OF :
PHILADELPHIA :
:
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
COURTNEY GILL, AS : IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE : PENNSYLVANIA
OF T.C.G., AND COURTNEY GILL AND :
:
J-A11003-22
TERRENCE GILL, IN THEIR OWN :
RIGHT :
:
:
v. : No. 659 EDA 2021
:
:
THE CHILDREN'S HOSPITAL OF :
PHILADELPHIA :
:
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.
CONCURRING/DISSENTING OPINION BY McLAUGHLIN, J.:
FILED NOVEMBER 22, 2022
I agree with the majority that the Children’s Hospital of Philadelphia
(“CHOP”) did not establish the intranet postings and the redacted
ophthalmology emails were privileged. However, I respectfully disagree with
the majority’s conclusion that the remaining documents are protected by the
Medical Care Availability and Reduction of Error Act (“MCARE”), 40 P.S. §§
1303.101-1303.910, or the Peer Review Protection Act (“PRPA”), 63 P.S. §§
425.1-425.4.
The majority accurately sets forth the facts of this case. In the late
summer of 2016, 23 infants contracted an adenovirus in CHOP’s neonatal
intensive care unit (“NICU”). CHOP’s Infections Prevention & Control (“IP&C”)
Department investigated the outbreak. CHOP claimed myriad documents
prepared in response to the outbreak were protected by either the PRPA or
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MCARE. The trial court disagreed, finding certain documents, including a root
cause analysis report, various powers point slides, meeting minutes, intranet
postings, and an email, were not protected from disclosure by either statute.
CHOP filed this appeal, again claiming the documents were protected from
disclosure.
The party asserting an evidentiary privilege has the initial burden to “set
forth facts showing that the privilege has been properly invoked.” Virnelson
v. Johnson Matthey, Inc., 253 A.3d 707, 713 (Pa.Super. 2021) (citation
omitted). If this initial burden is met, the party seeking disclosure then “must
set forth facts showing that disclosure will not violate the privilege.” Id.
Evidentiary privileges are disfavored, and should be applied “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) (citation omitted) (alteration in original).
The PRPA provides for the confidentiality of a review organization’s
records where the document arises out of matters that are the subject of
evaluation and review by the committee:
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[.]
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63 P.S. § 425.4. The provision further provides that documents available from
original sources are not protected merely because they are presented during
committee proceedings:
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[.]
Id.
The PRPA defines “peer review” as
[T]he 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. . . .
63 P.S. § 425.2. A “professional health care provider” is defined as “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[.]”
Id.
The PRPA defines “Review Organization” as follows:
[A]ny committee engaging in peer review . . . 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. . . .
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Id.
MCARE also protects certain documents from discovery. It protects from
disclosure documents prepared or created solely for the purpose of compliance
with certain MCARE provisions, where the documents arise out of matters
reviewed by the patient safety committee:
Any documents, materials or information solely prepared or
created for the purpose of compliance with section 310(b)
or of reporting under section 304(a)(5) or (b), 306(a)(2) or
(3), 307(b)(3), 308(a), 309(4), 310(b)(5) or 313 which
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) are
confidential and shall not be discoverable or admissible as
evidence in any civil or administrative action or proceeding.
40 P.S. § 1303.311(a) (footnote omitted). Similar to the PRPA, MCARE does
not protect a document from disclosure if the document would be available
from an original source:
Any documents, materials, records or information that
would otherwise be available from original sources shall not
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 or
governing board of a medical facility.
Id.
The MCARE patient safety committee is to 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.”
40 P.S. § 1303.310(a)(1). The statute states that the committee’s
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responsibilities include receiving reports, evaluating the investigations and
actions of the patient safety officer, reviewing and evaluating the quality of
the facility’s patient safety measures, making recommendations to eliminate
future serious events, and reporting to the administrative officer and
governing body:
(b) Responsibilities.--A patient safety committee of a
medical facility shall do all of the following:
(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 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.
Id. at § 1303.310(b) (footnotes omitted).
Root Cause Analysis Report
The Affidavit of Julia Sammons, M.D., M.S.C.E. states that “CHOP
conducted a formal root cause analysis related to the adenovirus outbreak
that occurred in CHOP’s NICU in August-September 2016.” Aff. of Julia
Sammons, M.D., M.S.C.E., at ¶ 69 (“Dr. Sammons’ Aff."). The Root Cause
Analysis (“RCA”) “summarized the root cause team’s information gathering,
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evaluation of the adenovirus outbreak, and included an action plan to prevent
recurrence.” Id. at ¶ 73. In her affidavit, Dr. Sammons stated that the “root
cause analysis was initiated at the direction of the Patient Safety Committee
through the Patient Safety Officer” and was submitted to the Patient Safety
Committee in November 2016. Id. at ¶¶ 70, 76. Similarly, in his affidavit, Jan
Boswinkel, M.D., stated that CHOP conducted a root cause analysis “at the
direction of the Patient Safety Committee,” the RCA “accomplished
responsibilities of the Patient Safety Committee,” and it was presented during
the November 2016 meeting. Aff. of Jan Boswinkel, M.D., at ¶¶ 29, 32, 35.
The trial court found CHOP failed to meet its burden of proving the RCA
is protected from disclosure by either the PRPA or MCARE. The court explained
that CHOP did not provide sufficient information to establish the report was
created specifically for the hospital’s event reporting system or peer review
committee meeting, noting CHOP did not include information as to who
prepared the report or when it was prepared. Trial Court Opinion, filed July
19, 2021, at 8. It found the document was “not created for purposes of peer
review but instead . . . to address and stop the outbreak.” Id. at 9.
The majority found that although the RCA was not protected from
disclosure by the PRPA, MCARE did protect it. It found CHOP met its burden
of establishing the RCA was solely prepared for compliance with MCARE, arose
out of matters that were reviewed by the patient safety committee, and not
otherwise available from other sources. Majority at 20. I disagree. I would
conclude, as the trial court did, that CHOP did not meet its burden.
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Although Dr. Sammons and Dr. Boswinkel both state the Patient Safety
Committee directed the preparation of the RCA and that the RCA was
presented at the November 2016 meeting, neither provides details regarding
when the request for the RCA was made, when RCA report was prepared, or
who constituted the members of the root cause analysis team that prepared
the report. I cannot agree that, by merely stating the Patient Safety
Committee requested an RCA, CHOP established the RCA was created solely
for compliance with MCARE. Rather, it had a dual purpose. I would agree with
the trial court that the RCA was created, at least in part, in response to the
Adenovirus outbreak. Because it was not solely created for the Patient Safety
Committee, it is not protected by MCARE. See 40 P.S. § 1303.311(a). I would
therefore conclude the trial court did not err.
PowerPoint Slides and Meeting Minutes
Dr. Sammons prepared and presented PowerPoint Slides at various
meetings. The majority finds the PowerPoint Slides protected under MCARE or
the PRPA. The majority also found the minutes from an IP&C meeting
privileged. I disagree.
1. “Safety Huddle” PowerPoint Slides
Dr. Sammons presented PowerPoint Slides at “safety huddles” during
August and September 2016. At her deposition, Dr. Sammons testified she
led an investigation into the adenovirus outbreak in the NICU. N.T., Oct. 6,
2020, at 21. Her role was “to lead outbreak investigations and to communicate
the findings.” Id. at 21-22. She testified that one of the “primary activities”
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in the “outbreak investigation” was “to communicate with the unit.” Id. at
210. They therefore had “daily huddles and briefings . . . to ensure everyone
knew where [her team was] in [the] investigation.” Id. She testified that there
were PowerPoint slides “prepared for communication to the NICU,” and the
slides “included general information around the cases and the case findings to
date.” Id. at 220. During the first week, the slides were updated daily. Id. at
221. The people attending the huddles differed, but “typically . . . include[d]
representation from [IP&C], from the NICU, NICU leadership,” risk managers,
and possibly local safety quality specialists. Id. at 221.
The majority found the Safety Huddle PowerPoint slides protected from
disclosure by MCARE. Majority at 24-25. I disagree and would find the slides
are not protected under MCARE.
As with the RCA, CHOP failed to show the Safety Huddle PowerPoint
slides were created solely for use by the Patient Safety Committee. Rather,
Dr. Sammons’ deposition testimony establishes the PowerPoint Slides were
prepared during the effort to investigate and respond to the outbreak, not
solely for the Committee. N.T., Oct. 6, 2020, at 21, 210, 220; Trial Ct. Op. at
8-9; see 40 P.S. § 1303.311(a). MCARE therefore does not prevent disclosure.
I also would find the PowerPoint slides not protected under the PRPA, 1
as CHOP did not establish the slides were created for peer review. As stated
____________________________________________
1 CHOP argues the Safety Huddle PowerPoint slides were protected under both
statutes. CHOP’s Br. at 39 n.25.
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above, they were to investigate the outbreak and provide information
regarding the investigation.
2. PowerPoint Slides from the Patient Safety Committee Meeting on
September 22 ,2016
On September 22, 2016, Dr. Sammons and other individuals, “on behalf
of the IP&C Committee and IP&C Department,” reported to the Patient Safety
Committee “regarding the adenovirus outbreak,” and prepared a PowerPoint
presentation for review by the Committee. Dr. Sammons’ Aff., at ¶¶ 34-35.
Dr. Sammons stated they “provided information to the Patient Safety
Committee regarding the adenovirus outbreak investigation and discussed
findings and next steps for purposes of promoting patient safety.” Id. at ¶ 37.
The majority concludes the PowerPoint slides from the Patient Safety
Committee meeting on September 22, 2016, are protected by MCARE.2
Majority at 25. It finds the slides were prepared pursuant to Section 310(b)
and 311, and therefore protected. I once again disagree.
I would conclude, as the trial court did, that CHOP did not establish the
slides were protected. Dr. Sammons reported to the Patient Safety Committee
as the hospital epidemiologist, on behalf of the IP&C committee, to advise on
developments from the outbreak and next steps. She explained that the slides
____________________________________________
2 CHOP does not argue the PowerPoint slides from the Patient Safety
Committee Meeting are protected by PRPA. CHOP’s Br. at 39 n.25.
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described the outbreak and explained the hospitals steps to control it. 3 Id.
This was part of a response to the outbreak, and therefore the slides were not
created solely to further a task under Section 310(b).
3. M&M Conferences held at CHOP and at Penn’s Scheie Eye Institute
Ground Rounds Conference
CHOP held Morbidity and Mortality (“M&M”) conferences related to the
adenovirus outbreak. These included a CHOP Safety M&M meeting, a CHOP
NICU M&M meeting, a CHOP Ophthalmology M&M meeting, a CHOP
Ophthalmology Residents M&M meeting, and a CHOP Surgical Division Chiefs
M&M meeting. Id. at ¶ 38. The CHOP Safety M&M conference was a sub-
committee of the Patient Safety Committee. Id. at ¶ 40.4 Dr. Sammons also
gave a presentation to ophthalmologists at an M&M Ground Rounds at Penn
Medicine’s Scheie Eye Institute, where she was a faculty member. Id. at ¶¶
77, 79. On her curriculum vitae, Dr. Sammons has the M&M conferences listed
under “Major Academic and Clinical Teaching Responsibilities.” CHOP’s Resp.
____________________________________________
3 I also note here that the trial court reviewed the documents in camera and
found the documents did not contain privileged information.
4 Dr. Sammons stated that the NICU M&M conference attendees “consisted
exclusively of professional health care providers, including NICU physicians
and NICU nurses.” Dr. Sammons’ Aff., at ¶ 49. Similarly, the attendees at the
Ophthalmology M&M conference “consisted exclusively of professional health
care providers from CHOP’s Division of Ophthalmology” and the attendees at
the Ophthalmology Residents M&M consisted “exclusively of ophthalmology
residents who provide care to patients at CHOP.” Id. at ¶ 54, 60. In addition,
the attendees at the Surgical Division Chiefs M&M “consisted exclusively of
CHOP surgical division chiefs.” Id. at ¶ 66.
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in Opp’n to Pls.’ Mot. to Strike CHOP’s Privilege Objections to Pls.’ Disc. Req.
at Ex. A.
The majority concludes the PowerPoint slides presented at the Safety
M&M conference was protected under MCARE. Majority at 25. I disagree,
because, as with the other documents, there is no evidence the slides were
created solely for compliance with MCARE.
The majority finds the slides presented to at the remaining M&M
conferences are protected under the PRPA, because the conferences were
attended solely by professional health care providers and the slides were
intended for the purposes of conducting peer review and improving the quality
of health care. Majority at 26-27.
I disagree, and would find the trial court did not err in finding CHOP did
not establish the slides were protected under the PRPA. CHOP failed to prove
the lectures were organized to evaluate the quality of healthcare provided,
reduce morbidity or mortality, or establish and enforce guidelines, as required
by the PRPA. See 63 P.S. §§ 425.2, 425.4. Rather, as indicated by Dr.
Sammons’s curriculum vitae the lectures were educational and training
opportunities. Further, the trial court, who viewed the slides during in camera
review, found the material in the slides had already been made public, and
therefore the information would be in otherwise available sources. Trial Ct.
Op. at 8.
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4. PowerPoint Slides and Minutes from IP&C Meetings on September 14
and October 12, 2016
In September and October 2016, Dr. Sammons and her colleagues
reported to the CHOP IP&C Committee about the outbreak. She stated the
discussion “included practice analysis and next steps to improve the quality of
health care rendered, improve procedures, and monitor compliance with IP&C
procedures.” Dr. Sammons’ Aff., at ¶ 29. She stated the IP&C committee
“evaluated the outbreak response by Infection Prevention providers and NICU
providers, evaluated ophthalmologist practices, discussed monitoring of
compliance with hospital policies and procedures, and evaluated next steps to
prevent recurrence.” Id. at ¶ 30.
The majority found the PowerPoint slides and the minutes from the IP&C
Meetings protected by MCARE. Majority at 28. It reasons that the IP&C
Committee is a peer review sub-committee of the Patient Safety Committee
and that the slides were prepared to present to the meeting and assist in
evaluating the outbreak response. Id. It found this established they were
presented in accordance with Section 310(b). Id. It therefore found the slides
protected under MCARE, without addressing whether the PRPA applied. Id. at
29.
I would conclude the PRPA cannot apply, because the IP&C Committee
was a multi-disciplinary committee and included non-physicians and lay
community. See 63 P.S. § 425.2; Ungurian v. Beyzman, 232 A.3d 786, 798
(Pa.Super. 2020) (finding PRPA requires peer review activities be conducted
by professional healthcare providers and the defendant’s failure to identify
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members of the peer review committee was fatal to claim PRPA privilege
applied); N.T., Oct. 6, 2020, at 177-79 (the IP&C Committee included
members of medical staff, non-physician infectious disease preventionists,
and representatives from the “environmental services department,” which
provides janitorial services).
Further, as with the other documents, I would conclude the slides were
created in response to the outbreak, and CHOP did not establish the slides
were created, or the meeting was held, solely to fulfill an obligation of the
Patient Safety Committee. Therefore, the slides and meeting minutes are not
protected from disclosure under MCARE.
In sum, I agree with the learned Majority that the intranet postings and
redacted email are not protected by PRPA or MCARE, but respectfully disagree
with its conclusions that the remaining documents are privileged.
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