BouSamra, G. v. Excela Health ( 2021 )

J-A18019-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEORGE R. BOUSAMRA M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EXCELA HEALTH, A CORPORATION; :
WESTMORELAND REGIONAL :
HOSPITAL, DOING BUSINESS AS : No. 272 WDA 2021
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 AND :
BENEFITS, LLC; AND AMERICAN :
MEDICAL FOUNDATION FOR PEER :
REVIEW AND EDUCATION, INC., A :
CORPORATION. :
:
:
EHAB MORCOS M.D. :
:
:
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 AND :
BENEFITS, LLC; AND AMERICAN :
MEDICAL FOUNDATION FOR PEER :
REVIEW AND EDUCATION, INC., A :
CORPORATION. :
J-A18019-21
:
:
APPEAL OF: MERCER HEALTH AND :
BENEFITS, LLC AND AMERICAN
MEDICAL FOUNDATION FOR PEER
REVIEW AND EDUCATION, INC.
Appeal from the Order Entered January 26, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-12-003929,
GD-12-003941
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: DECEMBER 21, 2021
Appellants, Mercer Health and Benefits, LLC (“Mercer”) and American
Medical Foundation for Peer Review and Education, Inc. (“American”)
(collectively, “Appellants”) appeal from the January 26, 2021 order that: (1)
vacated the April 24, 2019 trial court order; (2) granted the motion to compel
discovery filed by George R. BouSamra,1 M.D. (“Dr. BouSamra”) and Ehab
Morcos, M.D. (“Dr. Morcos”) (collectively, “Appellees”); and (3) permitted use
of discovered materials that Appellants claimed were privileged under the Peer
Review Protection Act (“PRPA”), 62 P.S. §§ 425.1 – 425.4. We grant
Appellants’ application for post-submission communication2 and affirm the
January 26, 2021 order.
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1 The record references Dr. BouSamra’s last name as “Bou Samra” or
“Bousamra” but the correct spelling appears to be “BouSamra.”
2On August 23, 2021, Appellants filed, with this Court, an application to file a
post-submission supplemental brief, arguing there was good cause to permit
such a post-submission filing in light of our Supreme Court’s recent decision
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Our Supreme Court in BouSamra v. Excela Health, 210 A.3d 967 (Pa.
2019) previously summarized the factual and procedural history, pertinent to
the instant appeal, as follows:
[Dr. BouSamra] along with his colleague, [Dr. Morcos,] were
members of Westmoreland County Cardiology ([“]WCC[”]), a
private cardiology practice located in Westmoreland County[,
Pennsylvania].[fn1] [Dr.] BouSamra and [Dr.] Morcos are
interventional cardiologists, who use intravascular catheter-based
techniques to treat, among other things, coronary artery disease.
Interventional cardiologists utilize catheterization and
angiography to measure blood flow through patients' coronary
arteries and evaluate the presence of blockages. If a blockage is
severe enough, interventional cardiologists implant a stent - a
device which increases the blood flow through the affected artery
by widening the narrowed section.
[Footnote 1 Our Supreme Court relied] on the facts as
alleged by [Dr.] BouSamra in his complaint because a
factual record ha[d] not yet been established by the trial
court.
Westmoreland Regional Hospital is operated by Excela Health
([“]Excela[”]), a corporation. As of 2006, approximately 90% of
the interventional cardiology procedures at Westmoreland
Regional Hospital were performed by WCC. As a result, most of
the income Excela realized from interventional cardiology
procedures at Westmoreland Regional Hospital stemmed from
WCC's procedures.
In 2007, Excela acquired Latrobe Cardiology [Associates, Inc.]
([“]Latrobe [Cardiology]”). Although Latrobe [Cardiology] was a
cardiology practice, it did not employ interventional cardiologists.
Instead, Latrobe [Cardiology] referred its patients requiring
interventional [cardiology] procedures to other cardiologist
groups, including WCC. Because WCC and Latrobe [Cardiology]
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in Leadbitter v. Keystone Anesthesia Consultants, Ltd., 256 A.3d 1164(Pa. 2021). Appellees filed a response in opposition to Appellants’ application
on August 24, 2021.
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competed for patients, some animosity existed between the
practices.
In 2008, Dr. Robert N. Staffen ([“Dr.] Staffen[”]), a member of
Latrobe [Cardiology], complained to Excela that [Dr.] BouSamra
and [Dr.] Morcos were not properly referring back to Latrobe
[Cardiology] those patients whom Latrobe [Cardiology] had
referred to WCC for interventional cardiology procedures.
Additionally, some Latrobe [Cardiology] physicians began
accusing WCC doctors, particularly [Dr.] BouSamra and [Dr.]
Morcos, of performing improper and medically unnecessary stent
[procedures]. In light of these accusations, one of the principals
of WCC, one of the cardiologists from Latrobe [Cardiology], and
the then-Chief Medical Officer of Westmoreland Regional Hospital
agreed that Dr. Mahdi Al-Bassam, a skilled interventional
cardiologist, would perform a review of WCC's procedures.
On April 26, 2009, Dr. Al-Bassam issued a report concluding that
the accusations made against WCC were unfounded. In fact, Dr.
Al-Bassam found that the interventional cardiologists
demonstrated outstanding skills and judgment, and [he] found no
evidence of misuse or abuse of interventional cardiology
[procedures]. He further concluded that the procedures
performed by WCC involved no increased complications or
mortality.
In February 2010, Robert Rogalski (Rogalski) was appointed
[Chief Executive Officer] of Excela, at which point he became
aware of the acrimonious relationship between WCC and Latrobe
[Cardiology]. Seeking to control the market for interventional
cardiology in Westmoreland County, Rogalski began negotiating
with WCC intending to bring WCC into Excela's network [of health
care providers]. The negotiations were ultimately unsuccessful,
and[,] in April 2010, WCC rejected any further negotiations.
In June 2010, Excela engaged [Mercer] to review whether
physicians at Westmoreland Regional Hospital, including [Dr.]
BouSamra, were performing medically unnecessary stent
[procedures]. Mercer's review was based on a sampling of
interventional cardiology procedure [cases]. The results of the
study were critical of [Dr.] BouSamra's work, and concluded that
he had performed medically unnecessary interventional cardiology
procedures.
[Dr.] BouSamra received the results of [Mercer’s] review on
December 18, 2010. On January 11, 2011, [Dr.] BouSamra
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resigned his privileges at Westmoreland Regional Hospital, hoping
to minimize negative professional repercussions resulting from the
[review]. Prior to resigning, however, [Dr.] BouSamra had
already gained provisional privileges to perform coronary
intervention[al procedures] at Forbes Regional Hospital, which
served patients in Westmoreland County and eastern Allegheny
County[, Pennsylvania].
On February 9, 2011, Excela hired [American] to conduct a more
thorough [] review focusing on interventional cardiology
procedures performed specifically by [Dr.] BouSamra in 2010.
The stated goal of [] American[’s] study was to determine if any
of the procedures [Dr.] BouSamra performed at Excela's hospital
were medically unnecessary.
While Mercer was completing its [] review but prior to American
beginning its [] review, Excela contracted with an outside public
relations consultant [] to assist Excela in managing the anticipated
publicity stemming from the results of the [] review studies. []
On February 23, 2011, American issued a final report to Excela in
which it concluded that [Dr.] BouSamra and [Dr.] Morcos regularly
overestimated arterial blockages and inappropriately implanted
stents.
...
On [] March 2, 2011, Excela held a press conference and publicly
acknowledged the results of the [] review studies. In its press
release, Excela stated that the [] review process had identified
141 patients of [Dr.] BouSamra and [Dr.] Morcos who, in the last
twelve months, had received stents which may not have been
medically necessary. The press conference received significant
media attention the following day.
[Dr.] BouSamra initiated this action by filing a complaint on March
1, 2012, seeking damages for, among other things, defamation
and interference with prospective and actual contractual
relations.[3] As the matter continued through the phases of
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3 Dr. Morcos filed a similar complaint on March 1, 2012. Defendants’ Motion
for Consolidation, 4/23/12, at ¶6. On April 23, 2012, the trial court granted
a joint motion for consolidation and designated trial court docket number “GD
No. 12-003929” as the lead case. Trial Court Order, 4/23/12.
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litigation, the parties disagreed as to the scope of discoverable
materials.
BouSamra, 210 A.3d at 969-971 (citation omitted). To facilitate discovery,
the parties stipulated to a clawback agreement and protective order, which
preserved the parties’ ability to assert a privilege. N.T., 2/5/15, at 27.
On November 4, 2014, Appellees served on all parties a motion to
compel discovery and to permit the use of discovered evidence without peer
review restrictions (“motion to compel”). Appellees’ motion to compel
requested, inter alia, “disclosure of information generated during and as a
conclusion to the reviews undertaken by [Mercer and American].” Appellees’
Motion to Compel, 10/9/15, at ¶7.4 Appellees requested disclosure despite
____________________________________________
4 We note that although the parties served and filed numerous pleadings in
this litigation, the trial court failed to docket, untimely docketed, or failed to
place in the record certain pleadings. See Joint Stipulation to Correct or
Modify the Record, 4/5/21, at ¶3 (stating, “Mercer and [American] became
aware that certain pleadings, which are related to the issues on appeal, were
served on the parties and the [trial court] but [were] not filed and docketed
in the trial court record”). For example, Appellees’ motion to compel, as
discussed supra, was served on all parties on November 4, 2014, but was not
timestamped and docketed until October 9, 2015. Accordingly, this Court
may refer to the presentment or service date of a filing or cite to the
reproduced record (“R.R.”) even if a filing does not exist in the certified record
or if a date reflected on the docket appears inaccurate. See Pa.R.A.P. 1921
Note (stating, “consistent with [our] Supreme Court's determination in
Commonwealth v. Brown, [] 52 A.3d 1139, 1145 n.4 ([Pa.] 2012) [] where
the accuracy of a pertinent document is undisputed, [an appellate court] could
consider that document if it was in the [r]eproduced [r]ecord, even though it
was not in the record that had been transmitted to the [appellate court]”).
“Ultimate responsibility for a complete record rests with the party raising an
issue that requires appellate court access to record materials.” See Rule 1921
Note.
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acknowledging that “all defendants [] contended that the reports, notes and
work papers, and any communications by the reviewers and review
coordinators of Mercer and [American] are not discoverable [or,] even if
disclosed to date in [] discovery, are, nonetheless, subject to the [PRPA
evidentiary privilege.]”5 Id. at ¶5. Appellees argued that the requested
materials were subject to disclosure since Mercer’s and American’s reviews
were not peer reviews or, alternatively, that if their reviews were peer reviews,
____________________________________________
5The evidentiary privilege afforded by the PRPA is set forth at 63 P.S. § 425.4
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, [t]hat information,
documents or records otherwise available from original sources
are not to be construed as immune from discovery or used 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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any PRPA evidentiary privilege was waived when Excela publicly disclosed the
findings of those reviews. Id. at ¶¶19-63. Appellees requested,
[a]n order [] declaring that[:] (a) peer review protection did not
apply to the Mercer and [American] reviews [or, in the alternative,
that] peer review protection was waived under the circumstances;
(b) []Mercer, [American,] and Excela shall respond to the
discovery requests of [Appellees]; and (c) Mercer and [American]
reviewers and agents shall respond in oral depositions without
claim of peer review protection.
Id. at 21.
On February 5, 2015, the trial court entertained argument on Appellees’
motion to compel. On July 1, 2015, the trial court denied Appellees’ motion
to compel, stating,
At the time this [motion to compel] was filed, [Excela] had not
turned over all documents which [Appellees] sought that were in
Excela's possession, custody, or control. It had apparently
withheld documents in its possession, custody, or control on the
ground that they are protected by peer review.
Following the filing of the [motion to compel], Excela produced all
documents within its possession, custody, or control covering how
the physicians conducted their reviews.
Through this [motion to compel, Appellees] seek[] backup
documents prepared by the physicians conducting the reviews [for
Mercer and American] that were never furnished to Excela.
[Appellees] also seek[] to depose these physicians in order to
obtain information that was never furnished to Excela regarding
how the reviews were conducted and how they arrived at their
conclusions.
Discovery is governed by a proportionality standard which
requires a [trial] court to consider the relevance of the information
sought, and the burden imposed on the party from whom
discovery is sought.
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In [a] case [such as this where] the only causes of action are the
intentional interference with a contractual relation and
defamation, the discovery of information not known to Excela is,
at best, of very marginal benefit to [Appellees]. This is so because
the issue before the fact-finder will be whether Excela, based on
information it had obtained and had not obtained, had sufficient
justification to have made those statements [at the press
conference.]
[S]tatutory protections are afforded physicians evaluating medical
care provided by other medical providers in order to encourage
physicians to participate in evaluations. In this case, the
discovery which is sought is time-consuming and, at best, of
marginal relevance. Thus, in balancing the interests of the
physicians who participated in the evaluations and the interests of
[Appellees], I conclude that the request for discovery of
information not known to Excela is not subject to discovery.
Trial Court Memorandum and Order, 7/1/15, at 3-4 (citations omitted). In
other words, the trial court denied Appellees’ motion to compel because the
documents they sought in discovery were “marginally relevant” to Appellees’
causes of action. Id. The trial court, however, did not address the issue of
whether the documents were subject to the PRPA evidentiary privilege. Id.
On July 21, 2015, Appellees filed a motion for clarification or
reconsideration of the trial court’s July 1, 2015 order, requesting the trial court
provide a ruling on the applicability of the PRPA evidentiary privilege. See
Appellees’ Motion for Clarification or Reconsideration, 7/21/15, at 8. 6 That
same day, the trial court denied Appellees’ motion for clarification or
reconsideration. Appellees appealed from the July 1, 2015 order to this Court,
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6Appellees served a copy of the motion for clarification and reconsideration
on all parties on July 7, 2015. See Appellees Motion for Clarification and
Reconsideration, 7/21/15, at Certificate of Service.
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which subsequently quashed the appeal as interlocutory on December 19,
2016. BouSamra v. Excela, 2016 WL 7340302 (Pa. Super. Filed December
19, 2016) (unpublished memorandum) (holding that, when a trial court denies
a motion to compel the production of documents, the order in question is not
appealable as a collateral order under Pa.R.A.P. 313(a) but, rather, is
considered an unappealable interlocutory order).
Fast-forward several years, on August 29, 2018, Appellees filed a
motion challenging the peer review privilege protection, a motion to compel
the production of certain documents, and a motion to compel the identification
of documents claimed to be protected by the PRPA evidentiary privilege.7 See
Stipulation to Correct or Modify Record Pursuant to Pa.R.A.P. 1926, 4/5/21,
at ¶3(a); see also Trial Court Memorandum Opinion, 4/23/19, at 1; Appellees’
Brief in Support at R.R. 462(b)-562(b). On April 24, 2019, the trial court
denied Appellees’ motion challenging the peer review protection and their
motion to compel production of certain documents and granted their motion
to compel the identification of documents claimed to be protected by the PRPA
evidentiary privilege.8 Trial Court Order, 4/24/19. The April 2019 order held
that: (1) Excela, a professional health care provider as defined by the PRPA,
____________________________________________
7 A copy of Appellees’ motion challenging the peer review privilege protection,
motion to compel the production of certain documents, and motion to compel
the identification of documents claimed to be protected by the PRPA
evidentiary privilege is not part of the certified record. A brief in support of
the same, however, does appear in the certified record.
8 The judge who entered the orders in July 2015 retired. Therefore, a different
judge entered the April 2019 order.
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waived its evidentiary privilege against disclosure when it held a press
conference disclosing information contained in the Mercer and American
reports; and (2) Mercer and American were peer review committees under the
PRPA and that each validly invoked their own evidentiary privileges under the
statute. Trial Court Opinion, 4/23/19, at 4-5.9 In its April 2019 opinion, the
trial court reasoned that,
Mercer and [American] acted as peer review committees,
pursuant to [their] contract[s with] Excela[,] a professional health
care provider. Therefore, the privilege is clearly held by
Excela because it is a professional health care provider.
While [American] and Mercer are, in and of themselves, not
professional health care providers, their roles in these peer
reviews are conducted as contractual peer review committees for
Excela and, therefore, they inure to the benefit of Excela’s
status as a professional health care provider. Accordingly,
the [trial] court concludes that the statutory language extending
the peer review privilege protection only to professional health
care providers is broad enough to encompass the reviews
conducted by Mercer and [American] in the present case.
Id. at 4 (extraneous capitalization omitted, emphasis added). The April 2019
trial court opinion concluded that because Mercer and American acquired their
own evidentiary privileges under the PRPA as peer review committees,
“Excela’s waiver [of its privilege] did not constitute a waiver on behalf of
Mercer [or American].” Id.
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9 A review of the trial court docket demonstrates that the trial court order was
filed on April 24, 2019. The trial court opinion accompanying the order was
filed on April 23, 2019.
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On April 16, 2020, Appellees served on all parties a motion to compel
discovery and to permit the use, as evidence, of documents based upon a
waiver of the PRPA evidentiary privilege. See Appellees’ Motion to Compel,
10/5/20.10 Appellees asserted that,
The privilege logs of one or all of the [parties] essentially claims
privilege to all the documents related to the subject of the Mercer
and [American] reviews, including documents not part of the
“proceedings and records” of the review, such as (a) original
source material submitted for review, and (b) communications
about how [the] reviews should be used.
Id. at ¶8. Appellees argued that in light of our Supreme Court’s then-recent
decision in Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018), the April 2019 order
created “an irreconcilable conflict and a manifest injustice” that “cannot stand
as the law of this case[.]” Id. at ¶30. Appellees asserted that the April 2019
order permitted Mercer and American to invoke an evidentiary privilege under
the PRPA, which, in Appellees’ view, Mercer and American did not
independently possess under Reginelli, supra. Appellees’ Motion to Compel,
10/5/20, at ¶39. On the strength of this contention, Appellees maintained
that Mercer and American could not validly invoke, or resurrect, an evidentiary
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10 Appellees’ motion to compel was served on April 16, 2020, but was not filed
with the trial court until October 5, 2020. See Trial Court Order, 11/13/20
(stating, the trial court “is in the process of reviewing [Appellees’] October 5,
2020 motion to compel discovery and to permit [the] use of discovered
evidence without peer review protection” (extraneous capitulation omitted)).
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privilege that Excela waived through public disclosure. Appellees requested
the trial court issue an order that:
[1.] decides with clarity whether the Mercer and [American]
reviews were peer review[;]
[2.] decides with clarity whether Excela waived its presumptive
right to confidentiality in the Mercer and [American] reviews
[and whether Excela] is the sole entity [that] can claim or
refuse to claim [PRPA] protection[;]
[3.] rules that Mercer and [American] are not professional
health[ ]care providers [but, rather,] were engaged as
agents under [] contract[s with] Excela [and, therefore,] do
not have a separate and independent right to claim peer
review protection[; and]
[4.] declares that the [April 2019 order] is not the law of the
case because it is erroneous and creates a manifest injustice
and an irreconcilable conflict between the [defending
parties,] which can be used to override Excela's waiver[] or
refusal to claim [PRPA] protection.
Id. at ¶40.
On January 26, 2021, the trial court vacated the April 2019 order and
granted Appellees’ motion to compel discovery and to permit the use of
discovered evidence without PRPA privilege.11 Trial Court Memorandum
Order, 1/26/21, at 12. The January 2021 order determined that Mercer and
American were not entitled to peer review status under the PRPA and,
therefore, did not acquire separate evidentiary privileges under the statute.
Id. at 8-9. Pursuant to its reading of the PRPA, the January 2021 trial court
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11 The judge who entered the April 2019 order was no longer serving on the
trial court. Therefore, the January 2021 order was entered by a third judge
assigned to this case.
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concluded that Excela waived the sole, applicable evidentiary privilege through
public disclosure. Id. at 9. The January 2021 trial court discerned that, “the
[PRPA] privilege is held by the [professional] health[ ]care provider and is only
extended to entities such as Mercer and [American] when retained for the
purpose of peer review.” Id. at 8. The January 2021 trial court further
explained, through its artful analogy to an umbrella, that Mercer and American
did not have their own independent evidentiary privileges to waive but, rather,
stood “under [Excela’s privilege] umbrella keeping them protected and dry.”
Id. at 8-9. The January 2021 trial court opined that, “when [a professional]
health[ ]care provider waives the privilege – said privilege disappears in its
entirety. It is illogical to contend [a] third-party reviewer somehow retains a
privilege it [] never independently held in the first instance.” Id. at 9. Implicit
in the January 2021 trial court’s findings was that neither Mercer nor American
constituted a peer review committee under the PRPA. This appeal12
followed.13
Appellants raise the following issues for our review:
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12 Appellants’ single notice of appeal from a single order entered at the lead
docket number in a consolidated civil matter does not preclude this Court’s
appellate jurisdiction. See Always Busy Consulting, LLC v. Babford & Co.,
Inc., 247 A.3d 1033, 1043 (Pa. 2021) (holding that, filing a single notice of
appeal from a single order entered at the lead docket number for consolidated
civil matters where all record information necessary to adjudication of the
appeal exists, and which involves identical parties, claims[,] and issues, does
not” preclude appellate jurisdiction).
13 The trial court did not order Appellants to comply with Pa.R.A.P. 1925(b).
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1. Whether [the January 2021 trial court] was procedurally
barred from granting [Appellees’] third motion to compel
because [two prior trial court orders] had already denied the
same relief [] and this Court had [previously] ruled that any
challenge to [the July 2015] order had to be made after the
completion of the trial court proceedings?
2. Whether [the January 2021 trial court] failed to justify a
departure from the law of the case doctrine when [it]
ignored the applicability of [the July 2015 trial court’s] ruling
about the proportionality of [Appellees’] requested
discovery, dismissed this Court’s procedural instructions on
how [Appellees] should proceed, and merely disagreed with
[the April 2019 trial court’s] analysis of the PRPA instead of
showing that “manifest injustice” would occur if [the April
2019 order] were allowed to remain in place?
3. Whether the PRPA applies to the peer review documents of
Mercer and [American] and prevents [Appellees] from
obtaining them through discovery?
Appellants’ Brief at 5-6.
Preliminarily, we address our jurisdiction to review the January 2021
order, which, inter alia, granted Appellees’ motion to compel. See S.C.B. v.
J.S.B., 218 A.3d 905, 912 (Pa. Super. 2019) (stating that, “[s]ince we lack
jurisdiction over an unappealable order it is incumbent on [this Court] to
determine, sua sponte when necessary, whether the appeal is taken from an
appealable order” (citation, original quotation marks, and original brackets
omitted)); see also Appellants’ Brief at 5 ¶1 (stating, “this Court [previously]
ruled that any challenge to [the July 2015] order had to be made after the
completion of the trial court proceedings”).
Pennsylvania Rule of Appellate Procedure 313 permits an appeal to be
“taken as of right from a collateral order of a trial court[.]” Pa.R.A.P. 313(a).
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A collateral order is defined as “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(b). Pennsylvania courts have long-held that a trial court order rejecting
the assertion of a privilege and requiring the disclosure of documents
constitutes a collateral order and is immediately appealable under Rule
313(a). See Leadbitter, 256 A.3d at 1168 (permitting an appeal of an order
rejecting the assertion of the PRPA evidentiary privilege and requiring the
disclosure of documents); see also Reginelli, 181 A.3d at 298 n.5
(permitting a collateral appeal of an order compelling the production of
documents purportedly privileged under the PRPA); Yocabet v. UPMC
Presbyterian, 119 A.3d 1012, 1016 (Pa. Super. 2015) (finding this Court had
jurisdiction over an order compelling a party to produce materials allegedly
protected by the PRPA); Commonwealth v. Flor, 136 A.3d 150, 155 (Pa.
2016) (stating, “discovery orders rejecting claims of privilege and requiring
disclosure constitute collateral orders that are immediately appealable under
Rule 313”). Therefore, we find Appellants’ jurisdictional challenge to be
without merit.14
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14 This Court previously quashed Appellants’ appeal of the July 2015 order
because that order denied Appellants’ motion to compel discovery and,
therefore, was interlocutory. See BouSamra, 2016 WL 7340302, at *3.
There, this Court recognized that jurisdiction exists over a discovery order
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The remainder of Appellants’ issues, in toto, ask this Court to vacate the
January 26, 2021 order, claiming that the January 2021 trial court was bound,
under the coordinate jurisdiction rule, to a prior reading of the PRPA espoused
by a different trial judge in a ruling issued on April 24, 2019. Statutory
interpretation and application of the coordinate jurisdiction rule involve
questions of law and, as such, our standard of review is de novo, and our
scope of review is plenary. Zane v. Friends Hosp., 836 A.2d 25, 30 n.8 (Pa.
2003); see also Reginelli, 181 A.3d at 299-300; Yocabet, 119 A.3d at 1019.
The “law of the case” doctrine encompasses “a family of rules which
embody the concept that a court involved in the later phases of a litigated
matter should not reopen questions decided by another judge of that same
court or by a higher court in the earlier phases of the matter.”
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). One such rule
is the “coordinate jurisdiction rule,” which embodies the principle that “upon
transfer of a matter between trial [courts] of coordinate jurisdiction, the
transferee trial court may not alter the resolution of a legal question previously
decided by the transferor trial court.” Id. (citations omitted). Departure from
the coordinate jurisdiction rule is permitted only in exceptional circumstances,
such as, “where the prior holding was clearly erroneous and would create a
manifest injustice if followed.” Id. at 1332; see also Zane, 836 A.2d at 29
____________________________________________
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.” Id.
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(stating, “[t]his general prohibition against revisiting the prior holding of a
[trial court] of coordinate jurisdiction, however, is not absolute”). A prior
holding is “clearly erroneous” if adherence to the order permits “an inequity
to work on the party subject to the order” and allows an action to proceed “in
the face of almost certain reversal on appellate review.” Zane, 836 A.2d at
29. A prior holding creates a “manifest injustice” if “adhering to the prior
holding would be, in essence, plainly intolerable.” Id. at 30.
To begin, it is important to recognize several key-principles which
underlie the enactment of the PRPA. Our Supreme Court in Leadbitter,
supra, summarized the purpose of the PRPA as follows:
[T]he enactment [of the PRPA] stems from the dual observations
that: the practice of medicine is highly complex and, as such, the
medical profession is in the best position to police itself; and, the
profession's self-regulation is accomplished, at least in part,
through a peer-review mechanism undertaken to determine
whether a particular physician should be given clinical privileges
to perform a certain type of medical activity at a hospital[.] The
purpose of this privilege system is to improve the quality of health
care[.] Thus, it is beyond question that peer review committees
play a critical role in the effort to maintain high professional
standards in the medical practice[.]
Against this background, the PRPA is designed to foster candor
and frankness in the creation and consideration of peer-review
data by conferring immunity from liability, as well as
confidentiality - all with the objectives of improving the quality of
care, reducing mortality and morbidity, and controlling costs.
[T]he PRPA is an act providing for the increased use of peer review
groups by giving protection to individuals and data who report to
any review group[.] These types of protections are viewed as
helpful in fostering effective peer review because of the perceived
reluctance of members of the medical community to criticize their
peers and take corrective action.
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Leadbitter, 256 A.3d at 1168-1169 (citations, ellipsis, original brackets, and
original quotation marks omitted). With this background in mind, the PRPA
defines “peer review” as “the 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). A “professional health care provider” is defined as
“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[.]” Id. (including in the list of professional health care
providers, inter alia, a physician, an administrator of a hospital, and a
corporation operating a hospital). A “review organization” is defined as
any committee engaging in peer review [(the definition goes
on to list several examples of committees engaged in peer
review)] 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, 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.
Id. (emphasis added). While the PRPA’s evidentiary privilege specifically
states that it protects the proceedings and records of a review committee
from discovery or introduction into evidence, the PRPA does not define the
term “review committee.” See id.; see also 63 P.S. § 425.4. Our Supreme
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Court, however, has defined “review committee” as “any committee that
undertakes peer review[.]” Leadbitter, 256 A.3d at 1176; see also
Reginelli, 181 A.3d at 303 n.8 (defining “review committee” as “any
committee engaged in peer review”).
Here, Mercer and American are not professional health care providers
because they are not corporations that operate hospitals within the
Commonwealth, and they have put forth no evidence that they are “approved,
licensed, or otherwise regulated to practice or operate in the health care field
under the laws of the Commonwealth.” See 63 P.S. § 425.2. While both
Mercer and American may offer “peer review services,” their services may not
be considered “peer review” under the PRPA unless their evaluation
procedures are conducted by a professional health care provider. See
Yocabet, 119 A.2d at 1024; see also Ungurian v. Beyzman, 232 A.3d 786,
799 (Pa. Super. 2021) (reiterating that, for the PRPA privilege to apply, the
peer review must have been conducted by a professional health care
provider). Because neither Mercer nor American are professional health care
providers, neither entity can engage in peer review activity as defined by the
PRPA and our Supreme Court’s interpretive case law, and, as such, neither
entity can be designated a “review committee.” See Leadbitter, 256 A.3d at
1176 (defining a review committee as a committee that undertakes peer
review). Since neither Mercer nor American meet the criteria for a “review
committee,” neither entity is entitled to its own independent evidentiary
privilege under the PRPA.
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Excela, however, is a “professional health care provider” because it is a
corporation operating a hospital under the laws of the Commonwealth of
Pennsylvania. See 63 P.S. § 425.2 (defining a professional health care
provider as, inter alia, a corporation operating a hospital under the laws of the
Commonwealth of Pennsylvania). In order to perform a peer review of the
quality and efficiency of services ordered or performed by Dr. BouSamra or
Dr. Morcos, both of whom qualify as professional health care providers under
the PRPA (see id.), Excela, as a professional health care provider, engaged
the services of Mercer and American as part of its evaluation procedure.15
Mercer and American served as consultants or analysts tasked with reviewing
hundreds of patient records and compiling their findings for the benefit of
Excela’s peer review of Dr. BouSamra and Dr. Morcos. Stated another way,
Mercer and American were part of Excela’s peer review “procedure of
evaluation.” Mercer and American did not actually determine the outcome of
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15The preliminary findings of Mercer’s review of the services performed by Dr.
BouSamra and Dr. Morcos were presented to Excela’s chief executive officer,
the co-chairs of the Board Quality Committee, and the president of the medical
staff. See Appellees’ Motion to Compel Directed to Mercer and American,
7/13/15, at Exhibit B. Excela stated that “an investigation into this matter
has not yet been triggered[ and that a] decision on whether to initiate an
investigation will be based, among other things, on the review by [American.]”
Id. Excela described Mercer’s review as “incorporate[ing] clinical judgment
and documentation into their assessment” of the services provided and
“addresses the issues of physician competency.” Id. at Exhibit C. Excela
described American’s review as “focus[ing] on evidence of fraud and abuse”
stemming from possible overpayments [from patients] as a result of medically
unnecessary procedures. Id.
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the peer review in the sense that Excela, as the professional health care
provider conducting the peer review, was free to accept or reject any, or all,
of the findings contained in the reports. As such, Excela, as the professional
health care provider conducting the peer review, held the evidentiary privilege
afforded to peer review proceedings and peer review records under the PCRA.
See 63 P.S. § 425.4. Once Excela waived its privilege by conducting a press
conference and disclosing its accepted findings, the privilege no longer
existed, and the peer review proceedings and peer review records were open
to discovery and subject to introduction at judicial proceedings. In contrast,
as stated supra, Mercer and American are not professional health care
providers as defined by the PRPA, cannot engage in peer review activity, and,
as such, cannot be designated “review committee[s].” See Leadbitter, 256
A.3d at 1176. Therefore, neither Mercer nor American hold their own
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evidentiary privileges under the PRPA.16 Any protection from disclosure that
was afforded to Mercer and American is “under the umbrella” of Excela.17
Therefore, the January 2021 trial court had grounds to revisit the April
2019 trial court ruling because that decision was “clearly erroneous” and
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16 This Court in Yocabet, supra, held that, “[a]n external committee formed
or retained by a professional health care provider to conduct peer review”
could qualify as a “review organization” if the external committee were
composed of professional health care providers. Yocabet, 119 A.3d at 1024.
In the instant case, Appellants offered no evidence that the individuals or
entities that conducted the evaluation of medical records were “professional
health care providers” as defined by the PRPA, specifically that they were
“approved, licensed[,] or otherwise regulated to practice or operate in the
health care field under the laws of the Commonwealth [of Pennsylvania].” 63
P.S. § 425.2. Rather, Appellants stated, “Mercer contracted with physician
specialists from across the country to evaluate the randomly selected
cases.” Appellants’ Brief at 10, 37. Appellants stated, “[e]xpert cardiologists
retained by [American] reviewed records and films of [Dr. BouSamra’s and
Dr. Morcos’s] patients to conduct a peer review[.]” Appellants’ Brief at 11.
Appellants indicated, and the record supports, that American utilized
physicians who were licensed by states other than the Commonwealth of
Pennsylvania. See Appellees’ Motion to Compel Directed to Mercer and
American, 7/13/15, at Exhibit C. Therefore, neither Mercer nor American were
a “review organization” under the PRPA. See Yocabet, 119 A.3d at 1024.
17 The PRPA privilege afforded to Excela as part of its peer review is not
eviscerated when the professional health care provider, as part of its peer
review process, contracts with an outside entity to review documents, analyze
data, and compile a report of its findings for the benefit of the peer review
committee or peer review organization. See Yocabet, 119 A.3d at 1024
(stating that peer review procedures for evaluation can be performed by
outside entities at the behest of the professional health care provider); see
also Reginelli, 181 A.3d 306 (declining to address, on grounds of waiver,
whether the PRPA privilege is eliminated when the professional health care
provider, as part of the peer review process, contracts “with a staffing and
administrative services entity [] to conduct peer review services”). In the
case sub judice, waiver through public disclosure defeated Excela’s evidentiary
privilege under the PRPA, not its entry into third-party contracts for assistance
in the peer review process.
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“reversal was certain” for the reasons discussed supra. Hence, it would be a
manifest injustice to continue to adhere to the April 2019 ruling.
Application for Post-Submission Communication granted. Order
affirmed.
Judge Musmanno joins.
Judge Nichols files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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