2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

(a)HMO IssuesIn McClellan v. Health Maintenance Organization, 686 A.2d 801 (Pa. 1996), theexecutors of the estate of a patient who died from malignant melanoma sued Decedent’s doctorand Health Maintenance Organization (HMO) for negligence, breach of contract andmisrepresentation. The Superior Court was presented with the issue of whether the PPRPAprecludes the discovery of peer review material in an action against an Independent PracticeAssociation HMO. The court held that since HMOs are not specifically identified by thelegislature as health care providers, it will not construe the statute to extend protection orconfidentiality to the HMO in this case.On appeal, the Supreme Court was evenly divided. Consequently, the order of theSuperior Court was affirmed. Justice Nigro, who wrote in favor of reversal of the SuperiorCourt’s holding, stated that HMOs, like health care facilities, evaluated and reviewed doctors.Moreover, HMOs conduct peer review to select competent doctors. Since other health carefacilities that conduct peer review are protected from producing confidential peer reviewdocuments, HMOs should also be protected. Justice Nigro wrote that this conclusion isconsistent with the purpose of the Act—to foster candor and frankness at peer review committeemeetings. Justice Zappala, who also wrote in favor of reversal and was joined by JusticeCastille, stated that hospitals and IPA model HMOs are sufficiently similar as to impose on botha duty to select and retain competent physicians. He then went on to conclude that IPA modelHMOs merit the same protection as is afforded to hospitals under the Act.Those justices who wrote in support of affirming the Superior Court Opinion stated thatthe definition of “health care provider” in the Act is ambiguous. Thus, they sought to ascertainthe intention of the General Assembly. Using the statutory construction doctrine of ejusdemgeneris, the Justices concluded that an HMO is not a health care provider or administrator of ahealth care facility as defined by the Act. Accordingly, the justices held that an HMO cannot be“embraced by the confidentiality protection of the Act”.(b)Discovery of Hospital FilesIn Piroli v LoDico, M.D., 909 A.2d 846 (Pa. Super. Ct. 2006), Plaintiff sued a physicianand his practice after his wife died following a transforaminal epidural steroid injection duringwhich, Plaintiff alleged, Defendant punctured Decedent’s vertebral artery. At issue in this casewas whether information gathered during a peer review was discoverable under the Peer ReviewProtection Act (“PRPA”) given that individuals other than health care providers (including abilling manager) were present during the peer review session. Id. at 847. The trial courtconcluded that the PRPA did not shield the information in question from discovery because abilling manager, who is not considered a “professional health care provider” according to thatterm in the PRPA, was present during the review process, thus destroying any protectionafforded by the PRPA. Id.On appeal, the Superior Court reversed the trial court’s judgment and held that theinformation was protected by the PRPA even though non-health care professionals were presentat the peer review session. Id. As explained by the Superior Court, the Peer Review Protection76