Dr. Boggs, MVH, and ERMI appealed the decision to the Superior Court. The Superior Court agreed with the trial court and concluded that ERMI was not entitled to claim the PRPA evidentiary privilege because it was an independent contractor and MVH could not claim the privilege because it did not create or maintain the file. The court also noted that even if either party could claim the privilege, it had been waived when ERMI shared the file with MVH.
When the parties appealed the decision of the Superior Court, the Pennsylvania Supreme Court looked to the statutory language of PRPA. The court examined the definitions of “professional health care provider” a “review organization” and the language of the evidentiary privilege, which states, “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…”
The court determined that ERMI did not fit within the definition of “professional health care provider.” The PRPA defines a “professional health care provider” as:
(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;
(ii) a dentist;
(iii) a podiatrist;
(iv) a chiropractor;
(v) an optometrist;
(vi) a psychologist;
(vii) a pharmacist;
(viii) a registered or practical nurse;
(ix) a physical therapist;
(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; or
(2) individuals licensed to practice veterinary medicine under the laws of this Commonwealth.
ERMI argued that it was close enough to a “physician” to qualify because it is a “physician organization comprised of hundreds of individual emergency medicine physicians…that exists specifically to provide emergency medical services” and that it qualified as a corporation operating a hospital because it is a corporation that “provides staffing and Emergency Services to hospitals.” The court rejected both arguments.
Writing for the majority, Justice Christine Donohue stated, “No principled reading of the definition of “professional health care provider” permits any entity to qualify if it is not approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of Pennsylvania. As such, while ERMI is an organization that is comprised of hundreds of “professional health care providers” (namely, physicians), it is not itself a “professional health care provider” because it is unregulated and unlicensed.”
The court also noted that PRPA’s evidentiary privilege only applies to proceedings and documents of a review committee, which had a specific definition. The court noted that Dr. Walther was not a member of the hospital’s peer review committee and that PRPA is limited to the type of review that occurs when evaluating of the “quality and efficiency of services ordered or performed’ by a health care provider. The court found that while Dr. Walther may qualify as a review organization that conducted a review of physician’s credentials, the PRPA did not protect that category of review.
Judge David Wecht filed a dissent, arguing that the majority opinion was contrary to the intent of the PRPA. Wecht said, “We have noted, and the Majority does not dispute, that the Act aims to encourage full and frank assessments of health care providers by other health care providers who are best qualified for that task. Whether the licensure, approval, or regulation requirement that undisputedly applies to MVH and its emergency department applies by extension to the contractor through its promise to ensure that the hospital complies with all state requirements seems beside the point: to exclude ERMI on the basis that it is not a professional health care provider under the expansive statutory definition would create a circumstance in which application of the peer review privilege to proceedings associated with a hospital department depends solely upon whether the hospital operates its own department or contracts with an outside corporate entity to do so.”
