2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

affidavit submitted by Defendants of Amy Helmuth, R.N., the administrator of peer reviewactivity within the hospital, established that the documents in question were generatedexclusively for peer review purposes and were maintained exclusively with peer review files.Therefore the court held that the trial court erred in ordering production of the documents as theysquarely fell within the protection of the Peer Review Protection Act. The court stated that thepurpose of the Peer Review Protection Act is to facilitate comprehensive, honest and potentiallycritical evaluations of medical professionals by their peers. Documents used in the determinationof staff privileges are the type of documents the legislature contemplated when drafting the PeerReview Protection Act.It should be noted that the mere utilization of records in peer review proceedings will notautomatically result in preventing a plaintiff from obtaining discovery of those records from theiroriginal sources. PRPA, 63 Pa. Cons. Stat. § 425.4 provides in pertinent part that:information, documents or records otherwise available from originalsources are not to be construed as immune from discovery or use inany such civil action merely because they were presented duringproceedings of such committee . . . .See, Ellison v. Women & Children’s Hosp. of Buffalo, C.A. No. 08-313 Erie, 2010 U.S. Dist.LEXIS 130828 (W.D. Pa. Dec. 10, 2010) (“The PRPA does not protect “information, documentsor records otherwise available from original sources” or “non-peer review business records, evenif those records eventually are used by a peer review committee.”), citing, Dodson v. Deleo,2005 PA Super 137, 872 A.2d 1237, 1242-43 (Pa. Super. 2005).(c)The PRPA Does Not Bar Discovery of Committee Audiotape inPhysician Action for Alleged Misuse of Peer ReviewIn Hayes v. Mercy Health Care Corp., 739 A.2d 114 (1999), the Supreme Court ofPennsylvania affirmed in part a trial court order permitting a physician to obtain throughdiscovery an audiotape of a hospital medical board in staff privilege litigation. The physicianclaimed that members of the board acted with ulterior motives and marred his record. TheSupreme Court ruled that in the context of this physician’s case, the committee tape was notprivileged under the PRPA. The court stated in dicta that the privilege would apply where thepatient sued the physician or hospital for negligence.IV.MENTAL HEALTH LAWA. Qualified Immunity StandardMental health providers are entitled to statutory based qualified immunity pursuant to theMental Health Procedures Act (“MHPA”). 50 Pa. Cons. Stat. § 7101 et. seq. Under the MHPA,providers are immune from both civil and criminal liability absent a showing of gross negligenceor willful misconduct for any decisions related to a patient’s treatment. Recent decisions fromthe Supreme Court of Pennsylvania set forth the legal elements required to state liability againsta mental health provider.78