BouSamra, G. v. Excela Health ( 2016 )

J-A20011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEORGE R. BOUSAMRA, M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
EXCELA HEALTH, A CORPORATION;
WESTMORELAND REGIONAL HOSPITAL,
DOING BUSINESS AS EXCELA
WESTMORELAND HOSPITAL, A
CORPORATION; ROBERT ROGALSKI;
JEROME E. GRANATO, M.D., LATROBE
CARDIOLOGY ASSOCIATES, INC., A
CORPORATION; ROBERT N. STAFFEN,
M.D.; MERCER HEALTH & BENEFITS,
LLC; AND AMERICAN MEDICAL
FOUNDATION FOR PEER REVIEW AND
EDUCATION, INC., A CORPORATION
Appellee No. 1188 WDA 2015
Appeal from the Order June 30, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD12-3929
GEORGE R. BOUSAMRA, M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
EXCELA HEALTH, A CORPORATION;
WESTMORELAND REGIONAL HOSPITAL,
DOING BUSINESS AS EXCELA
WESTMORELAND HOSPITAL, A
CORPORATION; ROBERT ROGALSKI;
JEROME E. GRANATO, M.D., LATROBE
CARDIOLOGY ASSOCIATES, INC., A
CORPORATION; ROBERT N. STAFFEN,
M.D.; MERCER HEALTH & BENEFITS,
J-A20011-16
LLC; AND AMERICAN MEDICAL
FOUNDATION FOR PEER REVIEW AND
EDUCATION, INC., A CORPORATION
Appellee No. 1189 WDA 2015
Appeal from the Order July 21, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD12-3929
EHAB MORCOS, M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
EXCELA HEALTH, A CORPORATION;
WESTMORELAND REGIONAL HOSPITAL,
DOING BUSINESS AS EXCELA
WESTMORELAND HOSPITAL, A
CORPORATION; ROBERT ROGALSKI;
JEROME E. GRANATO, M.D., LATROBE
CARDIOLOGY ASSOCIATES, INC., A
CORPORATION; ROBERT N. STAFFEN,
M.D.; MERCER HEALTH & BENEFITS,
LLC; AND AMERICAN MEDICAL
FOUNDATION FOR PEER REVIEW AND
EDUCATION, INC., A CORPORATION
Appellee No. 1190 WDA 2015
Appeal from the Order Dated July 21, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. No. 12-003941
EHAB MORCOS, M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
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EXCELA HEALTH, A CORPORATION;
WESTMORELAND REGIONAL HOSPITAL,
DOING BUSINESS AS EXCELA
WESTMORELAND HOSPITAL, A
CORPORATION; ROBERT ROGALSKI;
JEROME E. GRANATO, M.D., LATROBE
CARDIOLOGY ASSOCIATES, INC., A
CORPORATION; ROBERT N. STAFFEN,
M.D.; MERCER HEALTH & BENEFITS,
LLC; AND AMERICAN MEDICAL
FOUNDATION FOR PEER REVIEW AND
EDUCATION, INC., A CORPORATION
Appellee No. 1191 WDA 2015
Appeal from the Order June 30, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. No. 12-003941
BEFORE: BOWES, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 19, 2016
George R. Bousamra, MD, and Ehab Morcos, MD, filed appeals from a
June 30, 2015 order denying a discovery request and a July 21, 2015 order
denying their motion for reconsideration of the June 30, 2015 order. We
quash these appeals.
On March 1, 2012, Dr. Bousamra and Dr. Morcos instituted separate
actions against Excela Health, a corporation (“Excela”); Westmoreland
Regional Hospital, doing business as Excela Westmoreland Hospital, a
corporation (“Westmoreland Hospital”); Robert Rogalski; Jerome E. Granato,
M.D.; Latrobe Cardiology Associates, Inc., a corporation; Robert N. Staffen,
M.D.; Mercer Health & Benefits, LLC (“Mercer”); and American Medical
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Foundation For Peer Review And Education, Inc., a corporation (“American”).
The two actions were consolidated for purposes of discovery.
Excela operates Westmoreland Hospital, which is an acute care
hospital in Greensburg, Pennsylvania. In 2010, Mr. Rogalski became
Excela’s chief executive officer. Appellants were members of Westmoreland
County Cardiology, and, due to that status, had staff privileges as
interventional cardiologists at Excela. Interventional cardiology is a
subspecialty of cardiology wherein practitioners utilize intravascular
catheter-based techniques to treat, inter alia, coronary artery disease.
These specialists employ catheterization and angiography to measure the
amount of blood flow through a patient’s coronary arteries in order to
ascertain if there is blockage, also known as narrowing, restricting the blood
movement through a patient’s coronary arteries. If the blockage is severe
enough, interventional cardiologists implant a stent, which increases blood
current through in the affected artery.
Appellants practiced interventional cardiology at Excela’s
Westmoreland Hospital. These lawsuits arose after Excela accused
Appellants of conducting certain stent implantations that were unnecessary
in that the blockage in the patients at issue was so minimal that stents were
not medically appropriate.
According to Appellees, the following occurred in this respect. After he
became CEO, Mr. Rogalski heard from other physicians that interventional
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cardiologists were implanting medically-unnecessary stents at Excela. To
ascertain the veracity of these complaints, in June 2010, Mr. Rogalski hired
Mercer, an independent medical peer review organization, to evaluate the
quality, efficiency, and medical necessity of stent utilization by physicians in
interventional cardiology. Mercer was also asked to conduct peer review in
other medical specialties not here pertinent.
Mercer generated a random sample of cases to review, and it
contracted with specialists in the area from across the country to evaluate
the cases. Those specialists submitted their findings to Mercer, which
compiled them into reports and gave the reports to Excela. In December
2010, Mercer issued preliminary reports to Excela that were critical of the
care provided to some patients. Specifically, Mercer indicated that
Appellants had performed unnecessary stent implantations at Excela’s
facilities.
On January 12, 2011, after they became aware that Excela planned to
suspend their staff privileges, Appellants resigned. They voluntarily
relinquished their privileges to avoid a suspension, which would have
impaired their ability to obtain privileges at other facilities. Mercer issued its
final report to Excela on February 3, 2011. On February 9, 2011, Excela
hired American, another independent peer review corporation, to conduct a
review of all of Appellants’ cases for purposes of determining if any of the
procedures that Appellants performed at Excela were not medically
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necessary. In February 2011, American performed a review of the 753
cases of stent placements performed by Appellants in 2010. American
engaged expert cardiologists to examine the files of Appellants’ patients to
determine the propriety of the interventional cardiology procedures
performed.
On February 23, 2011, American issued a report to Excela that
indicated that Appellants’ practice was to overestimate arterial blockage and
to inappropriately treat mild narrowing with stents. On March 2, 2011,
Excela publicly announced that its experts had concluded that Appellants
performed 141 unnecessary stent procedures in 2010. Excela notified the
affected patients and offered follow-up care.
Appellants filed the present lawsuits raising various causes of action.
Appellants’ surviving claims include intentional interference with existing and
potential contractual relationships and defamation. Appellants averred that
the two peer review proceedings were pretextual and conducted in bad faith
and in an improper manner. According to Appellants, Excela sought to
prevent Appellants from competing with its interventional cardiologists in the
pertinent market area.
The genesis of the present appeal lies in a discovery request
disseminated by Appellants to Appellees. The record does not contain a
copy of the pertinent discovery document, but Appellants did file a motion to
compel against Appellees. Appellants asked the trial court to order
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Appellees to give them various documents from the review processes
conducted by Mercer and American and to force Appellees to reveal the
names of the physicians who engaged in review of their files. Appellants’
intent was to take depositions of the physicians who examined their cases.
On June 30, 2015, the motion to compel was denied; the appeals at 1188
WDA 2015 and 1189 WDA 2015 were filed from that order. Appellants then
moved for reconsideration of the June 30, 2015 order, and, on July 21,
2015, reconsideration was denied. Appellants then filed the appeals at 1190
WDA 2015 and 1191 WDA 2015 from the latter order. The following issues
are presented on appeal:
A. Whether the peer privilege does not preclude the
discovery and use at trial of documents and information –
claimed to be privileged by Appellees – because the reviews
were never intended to be nor conducted as bona fide peer
review, were done with ill-motivation and in bad faith, and any
privilege which may have existed was waived by the wide
dissemination in the media by the Excela Appellees of the
results?
B. Whether the information sought from Mercer and AMF
regarding their methodologies and manner of conducting the
reviews fall within the scope of Pa.R.C.P. 4003.1 and the
explanatory comments preceding 4009.1, even if not known by
or possessed by Excela.
Appellants’ briefs at 12.
Thus, on appeal, Appellants challenge the trial court’s refusal to supply
them with requested discovery materials. Initially, we must address
whether we have jurisdiction over these appeals. In their brief and at oral
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argument, Appellees vigorously maintained that these appeals must be
quashed as taken from interlocutory orders. Appellants counter that the
orders denying discovery are collateral orders appealable under Pa.R.A.P.
313. Appellants claim that the orders can be reviewed now since the trial
court disallowed their discovery request on the basis that the materials
sought were protected by the peer review privilege.1 They assert that
discovery orders involving application of a privilege are appealable as
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1
The peer review privilege is outlined as follows:
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 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 use 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.
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collateral orders under Pa.R.A.P. 313.2 Appellants also suggested that the
orders are too important to be denied review by this Court since they
potentially impact the evidence that will be available for use at trial.
We agree with Appellees that we lack jurisdiction over these appeals.
As a general rule, this Court has jurisdiction only over appeals taken from
final orders. Angelichio v. Myers, 110 A.3d 1046, 1048 (Pa.Super. 2015);
42 Pa.C.S. § 742 (emphasis added) (“The Superior Court shall have
exclusive appellate jurisdiction of all appeals from final orders of the
courts of common pleas, regardless of the nature of the controversy or
the amount involved,” except cases within the jurisdiction of the
Commonwealth Court). A final order is one that “(1) disposes of all claims
and of all parties; (2) is explicitly defined as a final order by statute; or (3)
is entered as a final order pursuant to Pennsylvania Rule of Appellate
Procedure 341(c).” McGrogan v. First Commonwealth Bank, 74 A.3d
1063, 1075 (Pa.Super. 2013); Pa.R.A.P. 341. In addition, the Rules of
Appellate Procedure allow us to exercise jurisdiction over specifically-
delineated interlocutory orders, including “an interlocutory order as of right
____________________________________________
2
We note that it is unclear whether or not discovery was denied on the
basis of Excela’s invocation of the peer review privilege or on the ground
that the discovery request was overbroad. However, our decision herein is
not impacted by the reason that discovery was disallowed. Since the motion
to compel was denied, Pa.R.A.P. 313 is inapplicable for the reasons
discussed in the text.
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(Pa.R.A.P. 311); . . . an interlocutory order by permission (Pa.R.A.P. 312,
1311, 42 Pa.C.S.A. § 702(b)); or . . . a collateral order (Pa.R.A.P. 313).”
Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1068 (Pa.Super. 2014)
(citation omitted).
An order denying discovery is not a final order as it does not dispose of
any parties or any causes of action. Additionally, discovery orders are not
appealable as of right. Hence, the general rule is that “discovery orders are
deemed interlocutory and not immediately appealable, because they do not
dispose of the litigation.” Meyer-Chatfield Corp. v. Bank Fin. Servs. Grp.,
143 A.3d 930, 936 (Pa.Super. 2016).
When a discovery order requires the production of materials in which
the appealing party has asserted a privilege, Pa.R.A.P. 313 applies, and we
will accept jurisdiction. See e.g., Yocabet v. UPMC Presbyterian, 119
A.3d 1012 1016 n. 1 (Pa.Super. 2015) (holding that discovery order was
appealable since the appealing party asserted that order required it to reveal
documents purportedly protected under the peer-review and attorney-client
privileges and ruling that if “a party is ordered to produce materials
purportedly subject to a privilege, we have jurisdiction under Pa.R.A.P.
313[.]”). Pa.R.A.P. 313 states:
(a) General Rule. An appeal may be taken as of right from a
collateral order of an administrative agency or lower court.
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(b) Definition. A collateral order is an order separable from
and collateral to the main cause of action where the right
involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably
lost.
Pa.R.A.P. 313. All three aspects of Pa.R.A.P. 313(b) must be satisfied before
an order is appealable thereunder.
As noted, we accept jurisdiction over a discovery order under Rule 313
when a party has been compelled to reveal materials in which any type of
privilege, including the peer review privilege purportedly at issue in this
appeal, has been asserted. This result flows from the fact that: 1) the issue
of privilege is separable from the main cause of action; 2) a privilege is an
important right that must be protected; and 3) if a party has been ordered
to produce privileged matters, the privilege will become irreparably lost if
review is postpone under final judgment because, by then, the purportedly
privileged materials have been revealed to the opposing party in the lawsuit.
Appellants have failed to satisfy the third component of this test.
On the other hand, when a trial court declines to award discovery of
materials, the order in question is not appealable under Pa.R.A.P. 313,
regardless of whether the denial of discovery resulted from the trial court’s
conclusion that an asserted privilege did apply to the materials demanded in
the discovery request. We recently addressed this exact issue in Meyer-
Chatfield Corp., supra, wherein Bank Financial Services Group (“BFS”)
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appealed an order granting Meyer-Chatfield Corporation’s motion to quash
subpoenas to take depositions that BFS had obtained against non-parties.
Meyer-Chatfield Corporation had been noticed to attend the depositions, and
BFS appealed the order granting Meyer-Hatfield Corporation’s motion to
quash the subpoenas. BFS asserted, as do Appellants herein, that the order
quashing the subpoenas was appealable under the collateral order doctrine.
We rejected that position.
The Meyer-Hatfield Court acknowledged that “discovery orders
requiring disclosure of privileged materials generally are appealable under
Rule 313,” but then observed that the order on appeal did not “require
disclosure of allegedly privileged information. Instead, it prevents disclosure
of sought-after information, privileged or otherwise, by quashing
subpoenas issued to non-parties and the notice to attend issued to Meyer–
Chatfield's corporate designee. Thus, this order is not appealable under Rule
313.” Id. (emphasis added).
The orders at issue in these appeals prevented Appellants from
accessing discovery materials, allegedly based upon Appellees’ assertion of
the peer review privilege. They are not final under the Meyer-Hatfield
decision, regardless of whether they pertained to the trial court’s acceptance
of Appellees’ assertion of the peer review privilege. Simply put, Appellants
can always challenge the orders after this matter proceeds to its final
conclusion.
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Our ruling in this respect is not altered by the fact that the effect of
the order may be to prevent Appellants from introducing the requested
materials at trial. Evidentiary rulings, like orders pertaining to discovery, are
interlocutory in nature and fully reviewable once a lawsuit is finally resolved.
The propriety of the orders herein, regardless of the amount of
prejudice flowing to Appellants with respect to their ability to prove their
cases, can be reviewed after these cases are finally decided. Appellants will
not lose their ability to have the orders reviewed if we decline jurisdiction at
this juncture. If the materials were discoverable, Appellants may be entitled
to a new trial. All litigants in Pennsylvania must await a final decision in
their lawsuits before they can obtain review of the interlocutory orders
pertaining to discovery denials and evidentiary rulings. Appellants’ situation
is no different.
Appeals quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
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