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2023 PA Super 166
JANE BETZ, EXECUTRIX OF THE ESTATE : IN THE SUPERIOR COURT OF
OF RICHARD M. BETZ, AND IN HER OWN : PENNSYLVANIA
RIGHT :
:
v. :
:
UPMC PINNACLE WEST SHORE :
HOSPITAL T/A; D/B/A UPMC PINNACLE :
HOSPITAL, STEVEN DELUCA, D.O., :
DEVIN OLSON, D.O., DANIEL SUMKO, :
D.O., TODD C. SCHAEFFER, D.O., :
BRENNA HOUSER, CRNA, AND RICHARD :
G. EVANS, D.O. :
:
APPEAL OF: UPMC PINNACLE WEST :
SHORE HOSPITAL : No. 1123 MDA 2022
Appeal from the Order Entered July 19, 2022
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 2020-05740
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY BOWES, J.: FILED SEPTEMBER 14, 2023
UPMC Pinnacle West Shore Hospital (“the Hospital”) appeals from the
order that granted the motion of Jane Betz (“Plaintiff”), directing the Hospital
to take reasonable efforts to identify the author of an anonymous report
concerning the care and death of Richard M. Betz (“Decedent”) at the Hospital.
Specifically, the Hospital contends that the trial court erred in so doing
because ascertaining the identity of the reporter would violate the
whistleblower protections of the Medical Care Availability and Reduction of
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* Former Justice specially assigned to the Superior Court.
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Error (“MCARE”) Act, 40 P.S. §§ 1303.101-1303.910.1 As we find no error in
the trial court’s interpretation and application of the pertinent statutes, we
affirm.
Since the issue in this appeal is collateral to Plaintiff’s claims against the
Hospital and individuals who provided care to Decedent there (collectively
“Defendants”), we need not recount the facts of the underlying action in detail.
Briefly, Decedent died following elective knee surgery performed at the
Hospital in June 2020. Plaintiff filed a complaint stating wrongful death and
survival claims, alleging that Defendants’ negligence caused Decedent’s
death. Defendants denied that their treatment deviated from the standard of
care or that they caused Decedent’s death.
During the course of discovery, the Hospital produced four incident
reports made in connection with Decedent’s treatment. Pertinent to this
appeal, event report EV20201798812 (“the anonymous report”) had been
submitted anonymously through the Hospital’s online portal in accordance
with its MCARE Act patient safety plan. That report stated as follows:
Patient was given 6 x 0.5 mg of hydromorphone and 4 mg of
morphine post-op in the PACU [Post-Anesthesia Care Unit]. Based
on chart documentation, the patient was desatting [incurring
decreasing oxygen levels] from the narcotics and required 3L NC
[three liters of oxygen by nasal cannula]. The patient was then
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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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transferred from the PACU to WS4 without any bedside handoff to
the floor RN. Floor RN found the patient unresponsive and
pulseless, and a code blue was activated. After a few days in the
ICU the patient was found to have anoxic brain injury due to his
cardiac arrest. Care was withdrawn and the patient died during
the admission.
Trial Court Opinion, 9/7/22, at 8 (quoting Response to Motion to Compel,
6/14/22, at Exhibit B (bracketed information added by trial court)).
In addition to the depositions of Decedent’s health care providers at the
Hospital, Plaintiff requested to depose the authors of all four reports.
Defendants produced the three named authors and known individuals with
first-hand information about Decedent’s treatment at the Hospital. However,
Defendants asserted that the MCARE Act precluded the disclosure of the
anonymous reporter. Plaintiff moved to compel the deposition, prompting a
hearing before a discovery master. There, the Hospital represented, and
Plaintiff accepted, that the identity of the author of the anonymous report was
unknown at that time. Yet, “it was not represented that such information
could not be extracted from the [H]ospital’s reporting system.” Id.
Ultimately, the trial court entered an order granting relief as
recommended by the discovery master:
AND NOW, . . . [Plaintiff’s motion to compel] is granted to the
extent that [the] Hospital is directed to perform a reasonable
search of the system utilized by the author of [the anonymous
report] with a view toward determining the identity of the
reporter, and to serve a verified report of the result of that search
upon Plaintiff’s counsel within 45 days of the date of this order.
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NOTHING IN THIS ORDER is intended to require the defendant to
perform an investigation beyond a review of the system (including
an examination of metadata associated with the report).
Id. (quoting Order, 7/19/22, at 1).
The Hospital timely appealed, and both it and the trial court complied
with Pa.R.A.P. 1925.2 The Hospital presents the following question for our
determination: “Whether the trial court erred in concluding the whistleblower
protections of [§] 308 of the MCARE Act did not protect the anonymity of the
author of a confidential serious event report from disclosure in response to
civil discovery.” Hospital’s brief at 3.
We begin with 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
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.
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2 Initially, the Hospital requested that the trial court amend the July 19, 2022
order to add language to allow an appeal by permission pursuant to 42 Pa.C.S.
§ 702(b), and the trial court declined. However, as noted above, we
nonetheless have jurisdiction of this appeal from a collateral order pursuant
to Pa.R.A.P. 313.
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§ 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).
At issue in the instant appeal is the Hospital’s claim that the identity of
the author of the anonymous report is privileged from discovery based upon
the provisions of the Whistleblower Law incorporated by reference into the
MCARE Act. The section of the MCARE Act invoked by the Hospital states as
follows in relevant part:
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(a) Reporting.--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. The report shall be made
immediately or as soon thereafter as reasonably practicable, but
in no event later than 24 hours after the occurrence or discovery
of a serious event or incident.
....
(c) Liability.--A health care worker who reports the occurrence
of a serious event or incident in accordance with subsection (a)
. . . shall not be subject to any retaliatory action for reporting the
serious event or incident and shall have the protections and
remedies set forth in [43 P.S. §§ 1421-1428], known as the
Whistleblower Law.
(d) Limitation.--Nothing in this section shall limit a medical
facility’s ability to take appropriate disciplinary action against a
health care worker for failure to meet defined performance
expectations or to take corrective action against a licensee for
unprofessional conduct, including making false reports or failure
to report serious events under this chapter.
40 P.S. § 1303.308. Hence, the MCARE Act guarantees (1) freedom from
retaliation for reporting, and (2) the protections and remedies offered by the
Whistleblower Law.
The Whistleblower Law was designed “to enhance openness in
government and compel the government’s compliance with the law by
protecting those who inform authorities of wrongdoing.” O'Rourke v.
Commonwealth, 778 A.2d 1194, 1202 (Pa. 2001) (cleaned up). The
provisions of the Whistleblower Law concerning protection of employees are
as follows:
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(a) Persons not to be discharged.--No employer may
discharge, threaten or otherwise discriminate or retaliate against
an employee regarding the employee’s compensation, terms,
conditions, location or privileges of employment because the
employee or a person acting on behalf of the employee makes a
good faith report or is about to report, verbally or in writing, to
the employer or appropriate authority an instance of wrongdoing
or waste by a public body or an instance of waste by any other
employer as defined in this act.
(b) Discrimination prohibited.--No employer may discharge,
threaten or otherwise discriminate or retaliate against an
employee regarding the employee’s compensation, terms,
conditions, location or privileges of employment because the
employee is requested by an appropriate authority to participate
in an investigation, hearing or inquiry held by an appropriate
authority or in a court action.
(c) Disclosure prohibition.--An appropriate authority to which
a violation of this act was reported may not disclose the identity
of a whistleblower without the whistleblower’s consent unless
disclosure is unavoidable in the investigation of the alleged
violation.
43 P.S. § 1423.
Upon examining the statutes, the trial court adopted the discovery
master’s conclusion that the Whistleblower Law’s protections are “intended to
discourage retaliation by the target of a whistleblower’s report to an agency
by restricting the agency’s right to disclose the identity of the reporter; the
law does not purport to preclude the target itself from ascertaining the
reporter’s identity by other means.” Trial Court Opinion, 9/7/22, at 8 (quoting
Discovery Master’s Report and Recommendation, 7/18/22, at 11). The trial
court further opined that it would be absurd to allow the target of a
whistleblower to use the statute “as a shield against discovery of wrongdoing.”
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Id. Therefore, the trial court directed the Hospital to conduct a reasonable
review of the available data to determine who authored the anonymous report
and provide the information to Plaintiff.
In challenging that ruling, the Hospital argues that the trial court erred
in “skip[ping] past reviewing the statutory text” and basing its decision upon
the legislative intent of the Whistleblower Law, and instead should have
focused upon the intent of the MCARE Act. See Hospital’s brief at 10. The
Hospital further contends that the trial court’s reading renders the MCARE
Act’s reference to the Whistleblower Law superfluous, as the MCARE Act itself
protects reporters from retaliation by the Hospital. Id. at 12. Finally, the
Hospital posits that the anonymity protections of the Whistleblower Law do
not merely protect the employee from adverse actions by the employer, but
also “ensures a whistleblower will not face collateral damage professionally
and socially, will avoid retribution from the target’s associates, and will escape
attack from third-parties who are negatively impacted by the report.” Id. at
13. Therefore, contending that the investigation in this case does not make
the disclosure of the anonymous reported unavoidable, the Hospital maintains
that it is precluded from disclosing the identity of the anonymous reporter
absent that individual’s consent.3 Id. at 9-10.
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3 We note that the Hospital does not argue on appeal that the identity of the
author of the anonymous report, or the report itself, is subject to any privilege
other than the 40 P.S. § 1303.308. Nor does it contend that compliance with
(Footnote Continued Next Page)
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We first address the Hospital’s assertion that “[t]he Whistleblower Law
provides only that the recipient of the report, ‘may not disclose the identity
of the whistleblower.” Id. at 11 (quoting a select portion of 43 P.S.
§ 1423(c)) (emphasis added). That is not what the Whistleblower Law states.
We reiterate the actual text of the nondisclosure provision: “An appropriate
authority to which a violation of this act was reported may not disclose the
identity of a whistleblower without the whistleblower’s consent unless
disclosure is unavoidable in the investigation of the alleged violation.” 43 P.S.
§ 1423(c) (emphasis added). While employers may not terminate or
otherwise discriminate against an employee who made a good faith report to
the employer or to an “appropriate authority,”4 the anonymity provision of
the law makes no reference to employers, constraining only the “appropriate
authority” from disclosing the identity of the employee.
Therefore, we must determine whether the Hospital stands in the shoes
of an “employer” or an “appropriate authority” for purposes of the
Whistleblower Law’s incorporation into the MCARE Act. We start with the
statutory definitions. The word “employer” is defined by the Whistleblower
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the trial court’s order is unfeasible or unduly burdensome. Therefore, our
review is limited to determining whether the trial court’s order violates
§ 1303.308.
4 If an employer engages in prohibited discrimination against a reporting
employee, the remedies provision of the Whistleblower Law provides that the
employee “may bring a civil action in a court of competent jurisdiction for
appropriate injunctive relief or damages, or both[.]” 43 P.S. § 1424(a).
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Law thusly: “A public body or [an individual or entity] which receives money
from a public body to perform work or provide services relative to the
performance of work for or the provision of services to a public body[.]” 43
P.S. § 1422. The term “appropriate authority” is defined as follows:
A Federal, State or local government body, agency or organization
having jurisdiction over criminal law enforcement, regulatory
violations, professional conduct or ethics, or waste; or a member,
officer, agent, representative or supervisory employee of the
body, agency or organization. The term includes, but is not
limited to, the Office of Inspector General, the Office of Attorney
General, the Department of the Auditor General, the Treasury
Department, the General Assembly and committees of the General
Assembly having the power and duty to investigate criminal law
enforcement, regulatory violations, professional conduct or ethics,
or waste.
43 P.S. § 1422. Our review of the pertinent provisions of the MCARE Act leads
us to the ready conclusion that the Hospital is not an “appropriate authority”
prohibited from disclosing the identity of the author of the anonymous report.
At the Hospital’s suggestion, we begin with consideration of the purpose
of the MCARE Act. That legislation was adopted 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.
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In this vein, medical facilities are required to develop and implement
patient safety plans that, inter alia, establish a system for its health care
workers to report serious events5 and incidents6 to a patient safety officer who
is tasked with ensuring the investigation of the reports and, in turn, reporting
them to a patient safety committee. See 40 P.S. §§ 1303.307, 1303.309.
The patient safety committee evaluates the patient safety officer’s
investigations, reviews and evaluates the quality of the medical facility’s
safety measures, and makes “recommendations to eliminate future serious
events and incidents.” 40 P.S. § 1303.310(b).
To oversee this system, our legislature established the Patient Safety
Authority (referred to within the MCARE Act as “the authority”), an
independent agency accountable to the Pennsylvania Department of Health
(“the department”). See 40 P.S. §§ 1303.303, 1303.304. Medical facilities
are obligated to promptly report the occurrence of serious events to both the
authority and the department, while incidents are recounted only to the
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5 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.
6 The definition of “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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authority. See 40 P.S. § 1303.313(a), (b). The authority, inter alia, collects
and analyzes the data, conducts independent reviews, advises facilities about
changes to enhance patient safety, and provides an annual report to the
General Assembly. See 40 P.S. § 1303.304(a), (c). Finally, the department
reviews and approves patient safety plans, receives and investigates serious
event reports, and approves recommendations issued by the authority. See
40 P.S. § 1303.306(a).
As discussed above, § 1303.308(a) mandates that health care workers
report serious events and incidents according to the medical facility’s patient
safety plan. However, the MCARE Act additionally provides that “[a] health
care worker who has complied with [§ 1303.]308(a) may file an anonymous
report regarding a serious event with the authority.” 40 P.S. § 1303.304(b).
Thereafter,
the authority shall give notice to the affected medical facility that
a report has been filed. The authority shall conduct its own review
of the report unless the medical facility has already commenced
an investigation of the serious event. The medical facility shall
provide the authority with the results of its investigation no later
than 30 days after receiving notice pursuant to this subsection. If
the authority is dissatisfied with the adequacy of the investigation
conducted by the medical facility, the authority shall perform its
own review of the serious event and may refer a medical facility
and any involved licensee to the department for failure to report
pursuant to [40 P.S. § 1303.]313(e) and (f).
Id.
Thus, the text of incorporated provisions of the Whistleblower Law in
light of the reporting provisions of the MCARE Act makes it plain that the
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Hospital does not stand in the shoes of an “appropriate authority” that is
bound to protect the identity of a whistleblower. Rather, the “appropriate
authorities” at issue are the public entities involved in administering the
patient safety provisions of the Act, namely the Patient Safety Authority and
the Department of Health. The Hospital instead stands in the shoes of the
Whistleblower Law’s concept of an “employer” for purposes of applying
protections and remedies of the MCARE Act.7
We deem it no coincidence that the MCARE Act, as detailed above,
contains no references to anonymous reporting in § 1303.308, which requires
health care workers to make reports in accordance with the medical facility’s
patient safety plan, but does allow for anonymous reporting to the authority
after the internal report is made. See 40 P.S. § 1303.304(b). Indeed, the
MCARE Act on its face contemplates that medical facilities will be aware of who
authored reports made pursuant to the patient safety plan insofar as it
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7 Before the MCARE Act was enacted in 2002, this Court held that both private
medical institutions that receive money directly from the Commonwealth, and
those that receive federal dollars through Medicaid, are employers for
purposes of the Whistleblower Law. See Riggio v. Burns, 711 A.2d 497, 500
(Pa.Super. 1998) (en banc); Denton v. Silver Stream Nursing & Rehab.
Ctr., 739 A.2d 571, 573 (Pa.Super. 1999). However, reports of conduct that
posed a risk to patient safety did not give rise to Whistleblower Law
protections “unless a statute, regulation, or code of conduct or ethics is
violated by the tortious act or omission.” Riggio, supra at 502. Further, as
the Hospital observes, many health care workers in any given medical facility
are not employees of the facility. See Hospital’s reply brief at 8. Thus, the
MCARE Act extended protections to a broader class of whistleblowers for
reporting a wider category of wrongdoing.
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expressly provides that medical facilities are permitted to discipline and take
corrective action against health care workers who make false reports. See 40
P.S. § 1303.308(a).
Moreover, our effectuation of the plain language of the statutes does
not, as the Hospital suggests, violate the rules of statutory interpretation by
rendering superfluous the MCARE Act’s incorporation of the Whistleblower
Law. The MCARE Act itself merely states generally that a worker who reports
an incident or serious event pursuant to § 1303.308(a) “shall not be subject
to any retaliatory action for reporting the serious event or incident[.]” 40 P.S.
§ 1303.308(b). Through the additional incorporation of the protections and
remedies of the Whistleblower Law, workers are specifically: (1) protected
from discharge and other adverse employment actions, with the right to bring
civil actions against the employer for violations for those guarantees, pursuant
to 43 P.S. §§ 1423(a) and (b) and 1424(a); and (2) protected from having
their identities involuntarily disclosed by the authority or the department in
connection with a public investigation of a report, unless disclosure is
unavoidable, pursuant to 43 P.S. § 1423(c). Thus, the incorporation of the
Whistleblower Law into § 1303.308 of the MCARE Act is manifestly meaningful
without adopting the Hospital’s position that it must keep the identity of the
author of the anonymous report secret from Plaintiff.
In sum, we hold that 40 P.S. § 1303.308(b) and 43 P.S. § 1423(c) do
not preclude the Hospital from taking reasonable efforts to ascertain and
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disclose to Plaintiff the author of the anonymous report. Therefore, we have
no cause to disturb the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/14/2023
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