Judges Opinions, — October 22, 2024 14:42 — 0 Comments

Judith Heilman, Administratrix of the Estate of Robert J. Heilman, Deceased, and Individually, v. Heather Bailey, PA-C, Robin Dunfee, M.D., and MedExpress Urgent Care, P.C.-Pennsylvania, d/b/a/ MedExpress Urgent Care Lebanon

Judith Heilman, Administratrix of the Estate of Robert J. Heilman, Deceased, and Individually, v. Heather Bailey, PA-C, Robin Dunfee, M.D., and MedExpress Urgent Care, P.C.-Pennsylvania, d/b/a/ MedExpress Urgent Care Lebanon

Civil Action-Medical Malpractice-Discovery-Report of Peer Review Committee-Pennsylvania Peer Review Protection Act-Privilege-Professional Healthcare Provider-Urgent Care Provider

Judith Heilman (“Plaintiff”) filed a Complaint alleging that her son Robert J. Heilman (“Decedent”) received negligent treatment at MedExpress Urgent Care, P.C.-Pennsylvania (“MedExpress”) when he presented with flu-like symptoms, was treated there by Heather Bailey, PA-C and died two (2) days later with the cause of death identified as bacterial pneumonia.  MedExpress formed a peer review committee to conduct an investigation of the incident.  During discovery relating to the litigation, MedExpress filed a Motion for a Protective Order to prevent disclosure of the report of the peer review committee on the basis that the report was privileged.    

1.  The Pennsylvania Peer Review Protection Act (“PRPA”), 63 P.S. § 425.1 et seq., was enacted to improve the quality of healthcare. 

2.  Title 63 P.S. § 425.4 provides that the proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery in any civil action against a professional healthcare provider arising out of the matters that are the subject of the investigation.

3.  A professional healthcare provider is broadly defined under the PRPA and includes individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the healthcare field under law.

4.  The pleadings contain ample proof that MedExpress is an entity designed to provide medical care for those seeking treatment as patients where Plaintiff averred in the Complaint that MedExpress is organized for the purpose of providing medical and healthcare services.

5.  Where the entire theory of Plaintiff’s case is that Decedent sought and received substandard medical care at MedExpress, the premise exists that MedExpress is an entity qualified to provide competent medical services.

6.  In light of the fact that MedExpress is a professional medical provider with the peer review committee convened for the purpose of evaluating the efficacy of care provided to Decedent, the report of the peer review committee is privileged from discovery and inadmissible at trial.

L.C.C.C.P. No. 2002-00102, Opinion by Bradford H. Charles, Judge, October 16, 2023.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW
  

JUDITH HEILMAN, Administratrix of    :

the Estate of Robert J. Heilman,                  :

Deceased, and Individually,             :

Plaintiff                                                           :

                                                                                    :

            v.                                                                     :           2022-00102

                                                                                    :

HEATHER BAILEY, PA-C, ROBIN                     :

DUNFEE, M.D. and MEDEXPRESS         :

URGENT CARE, P.C.-PENNSYLVANIA,           :

d/b/a MEDEXPRESS URGENT CARE    :

LEBANON,                                                               :

Defendants                                                     :

ORDER OF COURT

AND NOW, this 16th day of October, 2023, after hearing, upon consideration of the parties’ arguments, and in accordance with the attached Opinion, the Motion for Protective Order filed by Defendants with respect to documents generated by a Peer Review Committee is GRANTED.  Said documents shall not be discoverable or admissible at trial.  

BY THE COURT:

                                                                                    __________________________J.

                                                                                    BRADFORD H. CHARLES

BHC/pmd

cc:        Court Administration (order only)

Theodore Caldwell, Jr., Esq.// 1600 Market Street Suite 1650, Philadelphia, PA 19103

Aaron Jayman, Esq.// 111 N. Front Street Suite 100, Harrisburg, PA 17101           

Evan O’Connor, Esq.// 1001 Conshohocken State Road STE 1-515, West Conshohocken, PA 19428

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

JUDITH HEILMAN, Administratrix of    :

the Estate of Robert J. Heilman,                  :

Deceased, and Individually,             :

Plaintiff                                                           :

                                                                                    :

                                                                                    :

            v.                                                                     :           2022-00102

                                                                                    :

HEATHER BAILEY, PA-C, ROBIN                     :

DUNFEE, M.D. and MEDEXPRESS         :

URGENT CARE, P.C.-PENNSYLVANIA,           :

d/b/a MEDEXPRESS URGENT CARE    :

LEBANON,                                                               :

Defendants                                                     :

APPEARANCES:

Theodore Caldwell, Jr., Esq.                      FOR Plaintiff            

Aaron Jayman, Esq.                                     FOR Defendant DUNFEE

Evan O’Connor, Esq.                                               FOR Defendants MEDEXPRESS

                                                                                    And BAILEY

OPINION BY CHARLES, J.,  October 16, 2023

             We are asked today to address the question of whether the Pennsylvania Peer Review Protection Act (PRPA) applies to an entity such as MedExpress Urgent Care, P.C. (hereafter “MEDEXPRESS”).  If it does, documents pertaining to a post-event investigation conducted by a committee of MEDEXPRESS into the death of Robert Heilman will be inadmissible at trial.  Unfortunately, the issue presented to us is not as simple as one might first perceive. 

I.     FACTS and BACKGROUND

            Plaintiff initiated a lawsuit alleging that her son received negligent care at MEDEXPRESS when he presented at its facility with flu-like symptoms on February 4, 2020.  According to the Complaint, Robert Heilman was treated at MEDEXPRESS by a Physician’s Assistant by the name of Heather Bailey.  Two days after Mr. Heilman was seen by P.A. Bailey, he died.  The cause of death was determined to be bacterial pneumonia. 

            Following Mr. Heilman’s death, MEDEXPRESS tasked a committee with the responsibility to conduct an investigation.  Among the members of the committee was Alyssa Brown (hereafter BROWN), who was a licensed attorney.  Also participating were physicians and other staff working for MEDEXPRESS. 

            Following Preliminary Objections, the parties engaged in discovery.  MEDEXPRESS provided discoverable documents, but it also submitted a privilege log pertaining to two documents labeled as:

  • “Attorney Interview Notes for Heather Bailey, PAC Supervised by Robin Dunfee, MD.”; and
  • “E-mail from Dr. Nancie Fitch to PA-C Heather Bailey Entitled “Peer Review Heilman”.

Both documents were deemed by MEDEXPRESS to be privileged under the PRPA. 

            Plaintiff and MEDEXPRESS could not agree about the applicability of the privilege.  As a result, MEDEXPRESS filed a Motion Seeking a Protective Order related to the allegedly PRPA privileged documents.  We met with all counsel and determined that the issue generated by the parties was a mixed issue of law and fact.  We directed that a hearing take place regarding the process used by MEDEXPRESS to generate the withheld documents. 

            On July 12, 2023, we heard testimony from BROWN and Dr. Nancie Fitch.  BROWN described the process employed by MEDEXPRESS to review adverse outcome events.  She described the death of Robert Heilman as a “Level 2 event”.  She stated that these types of events arise for “unexpected patient mortality” or “where there is a threat of legal action.”  In a Level 2 evaluation, a peer review committee is appointed comprised of medical personnel and legal counsel.  This committee is tasked with the responsibility of investigating what occurred, developing a list of “action items” and then tracking compliance with those “action items”.  Both BROWN and Dr. Fitch testified that the meeting regarding Robert Heilman was conducted with the assumption that everything generated would be deemed privileged.  That included the three pages of documentation generated from the work performed by the MEDEXPRESS Peer Review Committee. 

            At some point at or near the time of the hearing in July, this Court received copies of the withheld documents stamped “Privileged and Under Seal”.  We reviewed those documents.  Based upon our review of the documents, we determined relatively quickly that the documents were of a type that are generally protected by the PRPA.  Having so concluded did not end our evaluation.  Plaintiff argues strenuously that the PRPA is not applicable to MEDEXPRESS.  We therefore issue this Opinion in order to address the question of whether an entity like MEDEXPRESS can be included within the scope of the protection provided by the PRPA. 

II.    STAUTORY SCHEME

 The PRPA was enacted with the goal of improving the quality of health care in this Commonwealth.  Our Commonwealth’s highest Court put it this way:

“The purpose underlying the PRPA has been articulated in prior decisions.  Briefly, the enactment stems from the dual observations that: the practice of medicine is highly complex and, as such, the medical profession is in the best position to police itself, and, the profession’s self-regulation is accomplished, at least in part, through a peer-review mechanism undertaken to determine whether a particular physician should be given clinical privileges to perform a certain type of medical activity at a hospital…

Against this background, the PRPA is designed to foster candor and frankness in the creation and consideration of peer-reviewed data by conferring immunity from liability, as well as confidentiality – all with the objectives of improving the quality of care, reducing mortality and morbidity and controlling costs.”

Leadbitter v. Keystone Anesthesia Consultants Ltd., 256 A.3d 1164, 1168-1169 (Pa. 2021).

            To promote the type of candor outlined above, the PRPA contains a relatively broad confidentiality provision:

“Section 425.4. Confidentiality of Review Organizations’ Records

The proceeds 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 healthcare 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, that 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 PRPA applies to “professional healthcare providers”.  This term is defined relatively broadly in the Statute.  It includes “individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the healthcare field under the law of the Commonwealth, including, but not limited to, the following individuals or organizations:…

(XI) a corporation or other organization operating a hospital, nursing or convalescent home or other healthcare facility…” 63 P.S. §425.2.

            Because §425.2 is so broadly defined, relatively few Appellate decisions have been rendered regarding the scope of what should be considered a “healthcare provider”.  Certainly, there can be “no doubt” that the PRPA applies to hospitals.  See, Corrigan v. Methodist Hospital, 857 F.Supp. 434 (E.D. Pa. 1994).  Even a hospital’s Board of Directors can be included within the protections of the PRPA.  See, Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015).  On the other hand, a health maintenance organization (HMO) is not considered a professional healthcare provider because it did not provide healthcare services, it only provided insurance to those who did.  See, Venosh v. Henzes, 121 A.3d 1016 (Pa. Super. 2015).

            One key case pertaining to the definition of “professional healthcare providers” is Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018).  In Reginelli, the Monongahela Valley Hospital contracted with an entity named UPMC Emergency Medicine Inc. (hereafter UPMC) to provide “staffing and administrative services for its Emergency Room.”  During medical malpractice litigation, a plaintiff sought to obtain a copy of a doctor’s personnel file.  Both the hospital and UPMC sought the protection of the PRPA peer review privilege.  The decision in Reginelli turned on the question of whether UPMC could be considered a “professional healthcare provider.” 

            The Court began its analysis by recognizing that “evidentiary privileges are not favored, as they operate in derogation or the search for truth.” Id at page 300, citing In Re: Thirty-third Statewide Investigating Grand Jury, 86 A.3d 204 (Pa. 2014).  The Court considered UPMC’s argument that the PRPA contained “expansive language” that should be broadly applied to any entity that provides healthcare services.  Pennsylvania’s Supreme Court chose a more restricted definition.  The Court emphasized that UPMC was a “business entity” designed to provide staff and not medical services.  The Court concluded:

“As such, while [UPMC] is an organization that is comprised of hundreds of ‘professional healthcare providers’ (namely physicians), it is not itself a ‘professional healthcare provider’ because it is unregulated and unlicensed.”

Id at page 303.

            Also of note is the fact that Reginelli involved a request for a doctor’s personnel file; it did not involve a request for documentation produced by a committee tasked with evaluation of a specific event.  Moreover, some of the documents at issue were generated by one specific person who was hired as a consultant.[1]  These facts distinguish Reginelli from this case. 

            This jurist read Reginelli three times.  Candidly, the language and conclusions of Reginelli were somewhat confusing.  The fact that Reginelli was a 4-3 decision further clouds the precedential import of the decision.[2]

            In this case, Plaintiff points out that MEDEXPRESS admitted in discovery that it was not an entity “licensed, registered, certified, or otherwise regulated by the Commonwealth of Pennsylvania.”  (Plaintiff’s Brief at page 10).  According to Plaintiff, MEDEXPRESS thus admitted that “it was not formally regulated by the Commonwealth to practice or operate in the healthcare field in any way.”  As such, Plaintiff believes that MEDEXPRESS is more like UPMC, an entity that provided staffing, than it was like a hospital that would clearly be covered by the PRPA. 

            MEDEXPRESS also relies upon an admission.  In PLAINTIFF’s Amended Complaint, Paragraph 7 avers that MEDEXPRESS is “organized and existing under the laws of the Commonwealth of Pennsylvania for the purpose of providing medical and healthcare services.”  This, according to MEDEXPRESS, should cement its status as a professional healthcare provider.  In addition, MEDEXPRESS has submitted a relatively complicated argument based upon Shon v. Karason, 920 A.2d 1285 (Pa. Super. 2007) as to why MEDEXPRESS should be deemed an “approved” provider of healthcare services.[3]

            As we read and contemplated the parties’ sophisticated arguments, we decided to step back from the legal rabbit hole they wanted us to enter.  Instead of focusing upon the so-called “trees” that supported each party’s arguments, we have instead elected to focus upon the “forest” of what the PRPA was designed and built to accomplish. 

            As our Supreme Court has noted, the PRPA was created to improve the quality of medical care by enabling providers to evaluate unexpected or adverse outcomes without fear that the evaluation will end up being used in a court of law.  To allow medical providers to learn from their own mistakes, the PRPA created a scheme that encouraged honest reflection and corrective actions.  If medical providers fear that courts will use a twisted interpretation of the law in order to reveal honest reflection and corrective actions in a court of law where the doctor is being asked to pay money, lawyers employed by medical providers will quickly ensure that peer reviews become little more than a rubber stamp of approval for the conduct of the provider who could be sued.  Such action would frustrate the purpose of the PRPA.

            In this case, the pleadings contain ample proof that MEDEXPRESS was an entity designed to provide medical care for those who enter its doors as patients.[4]  Moreover, PLAINTIFF’s entire theory of the case is that Robert Heilman sought and received sub-standard medical care at MEDEXPRESS.  Stated differently, PLAINTIFF believes that MEDEXPRESS should have adhered to a standard of medical care that governs emergency and primary care physicians who practice in this field of medicine within Central Pennsylvania.  Subsumed within this argument is the premise that MEDEXPRESS is an entity qualified to provide competent medical services.[5] 

            The meeting notes sought to be excluded address discussions that were clearly designed to evaluate the efficacy of care provided by MEDEXPRESS staff to Robert Heilman.  Indeed, the entire purpose of the committee was to evaluate what occurred so that staff at MEDEXPRESS could learn something that could be of use in the future. 

            Medical providers such as MEDEXPRESS are exactly the type of entities for which the PRPA was created.  The meeting conducted by the MEDEXPRESS Peer Review Committee was precisely the type of meeting contemplated by the General Assembly when it created the PRPA.  The documents generated from that meeting were created with an expectation of confidentiality and with knowledge that the results would be utilized for the purpose articulated in the PRPA. 

            For this Court to place exclusive emphasis on a technicality, i.e., that MEDEXPRESS is not the type of entity that is specifically licensed or regulated by the Commonwealth of Pennsylvania, would frustrate the clear purpose and meaning of the PRPA.  As we focus on the “forest” of what is before us, we have little trouble concluding that MEDEXPRESS is a professional medical provider and that the Peer Review Committee meeting undertaken by MEDEXPRESS was convened for the very purpose for which the PRPA was designed to provide protection.  Accordingly, we will apply the Peer Review Protection privilege.  The documents generated by the MEDEXPRESS Peer Review Committee identified in MEDEXPRESS’ privilege log will be deemed privileged and inadmissible at trial. 

            An Order to effectuate this decision will be entered today’s date.


[1] The Court wrote: “As a result, we must conclude that Dr. Walther, as an individual, was not a ‘review committee’ engaging in peer review, and thus [the hospital] is not entitled to claim the PRPA’s evidentiary privilege based upon her work as a member of its medical staff.” Id at page 306.

[2] The three dissenting Justices in Reginelli provided language that resonated with this Court: “For all practical purposes, [the hospital and UPMC] and Doctors Walther and Boggs comprise a collective responsible for insuring that the care delivered in the department, and specifically the care provided by Dr. Boggs,…satisfied the standard of care.  The well-established statutory mechanism for doing so is professional peer review, and the Legislature clearly has found that confidentiality is critical to such review.” Dissent, at page 323.

[3] Shon involved a question of whether a plaintiff was required to file a Certificate of Merit, which necessarily implicated the question of whether the entity was an “approved” healthcare provider.

[4] See, e.g. MEDEXPRESS “was doing business as MedExpress Urgent Care Lebanon while providing medical and healthcare services…”; “employs multiple physicians, physician assistants, nurse practitioners, nurses, and other healthcare personnel at each of the more than 40 facilities it operates in Pennsylvania  for the purposes of providing comprehensive urgent care services at its facilities…”; “was responsible for establishing necessary and required qualifications for the physicians, physician assistants, and other healthcare providers who provided care, treatment, and healthcare services at its MedExpress Urgent Care Lebanon facility, including Ms. Bailey…” PLAINTIFF’s Amended Complaint, emphasis supplied.

[5] If MEDEXPRESS were not a “professional medical provider”, but rather advertised itself as a “psychic healer trained by a monk in Nepal”, the status of this litigation would be vastly different.

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