Venosh, A.M. v. Jack Henzes, MD , 2015 Pa. Super. 169 ( 2015 )

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2015 PA Super 169ANNE MARIE VENOSH, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JACK HENZES M.D., CINDY ANDERSON,
PA-C; SCRANTON ORTHOPEDIE
SPECIALISTS, P.C. AND MOSES TAYLOR
HOSPITAL,
APPEAL OF: BLUE CROSS OF
NORTHEASTERN PENNSYLVANIA AND
FIRST PRIORITY HEALTH,
Appellants No. 1393 MDA 2014
Appeal from the Order Entered August 8, 2014
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 11 CV 3058
BEFORE: BOWES, DONOHUE AND ALLEN, JJ.
OPINION BY BOWES, J.: FILED AUGUST 07, 2015
Blue Cross of Northeastern Pennsylvania (“Blue Cross”) and its affiliate
First Priority Health (“First Priority”) appeal from the August 8, 2014
discovery order requiring Blue Cross to produce information concerning a
quality-of-care review that it conducted regarding the incident at issue in
this medical malpractice case. The trial court rejected Blue Cross’s
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invocation of the privilege established by the Pennsylvania Peer Review
Protection Act, 63 P.S. § 425.1, et seq. (the “Act”).1 We affirm.
On May 13, 2011, Ann Marie Venosh (“plaintiff”) instituted this lawsuit
by filing a complaint against Dr. Jack Henzes, Cindy S. Anderson, Scranton
Orthopedic Specialists P.C., and Moses Taylor Hospital (“Taylor”) (collectively
the “defendants”). She averred the following. Dr. Henzes was an
orthopedic surgeon and Ms. Anderson was a physician’s assistant engaged in
the practice of orthopedic medicine. Scranton Orthopedic Specialists P.C.
employed them both. On June 11, 2009, Dr. Henzes and Ms. Anderson
performed total knee replacement surgery on plaintiff’s left knee at Taylor.
During that surgery, Dr. Henzes caused an occlusion of the left popliteal
artery, which a vascular surgeon immediately repaired. Due to the
occlusion, the plaintiff suffered from left foot drop, peroneal neuropathy, and
left-leg numbness, weakness, muscle spasm, swelling, pain, nerve damage,
cramping induced by exercise, and functional limitations.
After the pleadings were closed, the parties began to conduct
discovery. On August 13, 2013, the plaintiff served Blue Cross with a
subpoena seeking records relating to her surgical treatment, including any
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1
Since the order compelled Blue Cross to produce materials that it
contended were privileged, the order is immediately appealable as a
collateral order. Yocabet v. UPMC Presbyterian, 2015 WL 3533851, n.1
(Pa.Super. 2015).
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investigative records. Following a request by Blue Cross, the plaintiff
disseminated the same subpoena to First Priority. Blue Cross withheld
materials relating to a quality-of-care review that it conducted of the medical
providers and the incident at issue. It moved to quash the subpoena as to
any documents related to that review. The discovery matter was referred to
a special master, who concluded that the Act’s privilege applied. The
plaintiff appealed to the court of common pleas, which reversed the special
master and ordered Blue Cross to produce the investigative materials. Blue
Cross and First Priority filed the present appeal, and the trial court agreed to
stay its order pending resolution of this appeal. Appellants present this
issue:
Did the trial court err as a matter of law in holding that
Pennsylvania's Peer Review Protection Act, which expressly
applies to "hospital plan corporation review committees and to
"health insurance review committees," 63 P.S. § 425.2, can
never apply to peer reviews initiated by and performed for a
hospital plan corporation (or any other health insurance
company that is not itself a professional health care provider),
even where the individuals who actually serve on the committee
meet the Act's definition of "professional health care provider”?
Appellant’s brief at 7.
In this appeal, we must determine whether the Act’s confidentiality
provision protects from discovery the materials from the review process
conducted by Blue Cross. Interpretation of a statute is “a question of law;
thus, our standard of review is de novo, and the scope of our review is
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plenary.” Yocabet v. UPMC Presbyterian, 2015 WL 3533851, 3
(Pa.Super. 2015).
The facts are not contested. First Priority was the plaintiff’s medical
insurer at the time of the surgery and is an independent practice type of
health maintenance organization (IPA-HMO). First Priority is a subsidiary of
Blue Cross, which sells health insurance. Blue Cross has procedures
whereby it can conduct review of the medical treatment delivered by the
health care providers with which it contracts. The primary purpose of that
review process is to ensure that Blue Cross’s insureds are receiving the
appropriate level of medical care from the health care providers.
The medical director of Blue Cross, after a recommendation from a
nurse analyst, implemented that review procedure with respect to the
surgery involving the plaintiff. The medical director, a nurse, and an
orthopedic surgeon conducted the examination of the medical care given to
the plaintiff. Blue Cross claims that the Act’s confidentiality provision applies
to any materials relating to its review of the medical care provided to the
plaintiff.
We observe first that the purpose of that Act is to “to facilitate self-
policing in the health care industry.” Dodson v. DeLeo, 872 A.2d 1237,
1242 (Pa.Super. 2005) (emphases added). We have noted that, the Act
itself expresses the legislature’s conclusion that the “medical profession
itself is in the best position to police its own activities.” Id. (emphasis
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added); Sanderson v. Frank S. Bryan, M.D., Ltd., 522 A.2d 1138, 1139
(Pa.Super. 1987) (“The medical profession exercises self-regulation. The
most common form of such regulation in the health care industry is the peer
review organization.”).
The Act provides that the “proceedings and records of a review
committee shall be held in confidence[.]” 63 P.S. § 425.4. A review
committee is identified in the Act as “any committee engaging in peer
review[.]” 63 P.S. § 425.2. Peer review is defined as “a procedure for
evaluation by professional health care providers” of the quality and
efficiency of services ordered or performed by other “professional health
care providers.” 63 P.S. § 425.2 (emphasis added). Accordingly, under the
express terms of the Act, “peer review occurs only when one professional
health care provider is evaluating another professional health care provider.”
Yocabet, supra.
In the present appeal, Appellants admit that they are not professional
health care providers as defined in the Act. Indeed, McClellan v. Health
Maintenance Organization, 660 A.2d 97 (Pa.Super. 1995), aff'd by an
equally divided court, 686 A.2d 801 (Pa. 1996), is controlling. That case
involved a medical malpractice lawsuit brought against a doctor and an IPA-
HMO. It was alleged that the doctor delivered substandard medical care and
that the IPA-HMO committed corporate negligence due to its failure to retain
competent doctors and to review the quality of health care services delivered
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by its doctors. The plaintiffs filed a request for production of documents,
and the HMO-defendant invoked the confidentiality provision of the Act as to
the materials.
The McClellan panel unanimously concluded that the privilege did not
apply because the HMO in question was not a professional health care
provider as defined in the Peer Review Act. We noted therein that an IPA-
HMO “contracts for delivery of services with a partnership, corporation, or
association whose major objective is to enter into contractual arrangements
with health professionals for the delivery of such health services.” Id. at
101 (citation omitted). An IPA-HMO is not a professional health care
provider as defined in the Act. This Court concluded that an IPA-HMO could
not be considered a professional health care provider because it does not
deliver any type of medical services. The McClellan court refused to read
into the Act's definition of professional health care provider any “medical
institutions or groups . . . that are not specifically identified by the
legislature.” Id. at 102. Accord Yocabet, supra (review of a kidney
transplant conducted by the State Department of Health on behalf of the
federal government was not peer review because it was not review
conducted by a health care provider.).
Likewise, herein, Blue Cross does not provide health care services; it
sells health insurance. It admittedly is not a professional health care
provider as defined by the Act or the case law interpreting the Act. Hence,
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its quality-of-care review of medical services delivered by one of its
contracting physicians did not constitute peer review as defined in the Act.
Blue Cross was not a member of the medical care profession involved in self-
policing. It was an organization deciding whether its affiliate IPA-HMO
should continue to contract with the health care providers in question. The
privilege is both facially inapplicable and the intent behind the Act is not
fulfilled by a finding that Blue Cross’s decision to examine the care provided
constituted peer review.
Appellants present the following positions. First, they contend that,
even though Blue Cross and First Priority admittedly are not health care
providers, the review process that Blue Cross initiated constituted peer
review because the definition of a review committee includes hospital plan
corporation review committees and health insurance review committees. 63
P.S. § 425.2. The pertinent provision relied upon by Appellant is as follows:
“Review organization” means any committee engaging in
peer review, including a hospital utilization review committee, a
hospital tissue committee, a health insurance review
committee, a hospital plan corporation review committee,
a professional health service plan review committee, a dental
review committee, a physicians' advisory committee, a
veterinary review committee, a nursing advisory committee, any
committee established pursuant to the medical assistance
program, and any committee established by one or more State
or local professional societies, to gather and review information
relating to the care and treatment of patients for the purposes of
(i) evaluating and improving the quality of health care rendered;
(ii) reducing morbidity or mortality; or (iii) establishing and
enforcing guidelines designed to keep within reasonable bounds
the cost of health care. It shall also mean any hospital board,
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committee or individual reviewing the professional qualifications
or activities of its medical staff or applicants for admission
thereto. It shall also mean a committee of an association of
professional health care providers reviewing the operation of
hospitals, nursing homes, convalescent homes or other health
care facilities.
63 P.S. § 425.2. (emphases added). Blue Cross is a hospital plan
corporation and contends that the committee that it formed to conduct the
quality-of-care review thus constituted a review organization.
Appellants omit a step in their construction of the statute in question.
As McClellan and Yocabet clearly provide, the definition of peer review
requires that it be initiated by a professional health care provider. A review
committee is a committee that conducts peer review. A review committee
cannot be conducting peer review unless that review is being performed by a
professional health care provider. We specifically observed in Yocabet that
a professional health care provider could appoint or retain an external
committee to conduct peer review and that review would still constitute peer
review.
Thus, a professional health care provider could ask a hospital plan
corporation or health insurance provider to perform review of medical
services. That committee would be a review committee, and its review
process would be confidential under the Act. For example, if Taylor had
asked Blue Cross to review the surgery in question, that review would
constitute peer review. Taylor, a hospital, falls within the definition of a
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professional health care provider. A committee that is initiated at its request
to review health care would be a peer review committee even though review
was performed by a committee appointed by a health insurance company or
a hospital plan corporation. Herein, the medical director of Blue Cross
initiated the review process in question. Under McClellan, that process is
not peer review because it was not conducted by a professional health care
provider.
Additionally, a review committee is operating as such only when its
goal is “to gather and review information relating to the care and treatment
of patients for the purposes of (i) evaluating and improving the quality of
health care rendered; (ii) reducing morbidity or mortality; or (iii)
establishing and enforcing guidelines designed to keep within reasonable
bounds the cost of health care.” 63 P.S. § 425.2 Herein, Blue Cross was
deciding whether to keep Dr. Henzes and Ms. Anderson as contracting health
care service providers. None of the above stated purposes was present in its
quality-of-care review.
Appellants also note that the review in question was actually
conducted by health care providers consisting of Blue Cross’s medical
director, a nurse, and an orthopedic surgeon. This contention was directly
addressed in Yocabet, supra. Therein, we noted that the fact that an
entity that is not a professional health care provider, as outlined in the Act,
hires health care providers, as defined in the Act, does not convert a review
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process into peer review. We noted that peer review can be initiated only by
a professional health care provider so the question of who the professional
medical provider appoints or hires to conduct the review is irrelevant. For
example, a person who is not a health care provider can be involved in the
process and it remains peer review. Piroli v. Lodico, 909 A.2d 846(Pa.Super. 2006) (fact that billing manager was present during a peer
review proceeding conducted by a professional health care provider did not
render the Act’s confidentiality provision inapplicable).
Appellants finally maintain that McClellan is not precedential. In
citing McClellan, they continually reference the non-precedential Supreme
Court decision wherein the Superior Court was affirmed by an equally
divided Court. However, the Superior Court panel decision was unanimous
and published, and Appellants’ arguments that the Supreme Court decision
in question is not precedential does not confront the fact that the Superior
Court decision remains precedential .
Furthermore, McClellan is directly on point and holds that a
corporation that provides health insurance and not medical care is not a
professional health care provider. That decision further states that unless an
entity is a professional health care provider, it does not conduct peer review,
and any review conducted by such an organization is not confidential under
the Act.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015
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