J-A23019-15 & J-A23020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ELEANOR REGINELLI AND ORLANDO REGINELLI IN THE SUPERIOR COURT OF PENNSYLVANIA

v. MARCELLUS BOGGS, M.D., AND MONONGAHELA VALLEY HOSPITAL, INC., AND UPMC EMERGENCY MEDICINE, INC., D/B/A EMERGENCY RESOURCE MANAGEMENT, INC.

APPEAL OF: MONONGAHELA VALLEY HOSPITAL, INC. No. 1584 WDA 2014

Appeal from the Order Entered August 29, 2014 In the Court of Common Pleas of Washington County

Civil Division at No(s): 2012-5172

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ELEANOR REGINELLI AND ORLANDO REGINELLI IN THE SUPERIOR COURT OF PENNSYLVANIA

v. MARCELLUS BOGGS, M.D., AND MONONGAHELA VALLEY HOSPITAL, INC., AND UPMC EMERGENCY MEDICINE, INC., D/B/A EMERGENCY RESOURCE MANAGEMENT, INC.

APPEAL OF: UPMC EMERGENCY MEDICINE, INC., AND MARCELLUS BOGGS, M.D. No. 1585 WDA 2014J-A23019-15 & A23020-15

- 2 - Appeal from the Order Entered August 29, 2014 In the Court of Common Pleas of Washington County

Civil Division at No(s): 2012-5172

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J

. MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 23, 2015 Appellants, UPMC Emergency Medicine, Inc., doing bu siness as Emergency Resource Management, Inc. (“ERMI”), Marce llus Boggs, M.D., and Monongahela Valley Hospital, Inc. (the “Hospita l”), seek review of the order directing the Hospital to produce specific do cuments over Appellants’ claim of privilege. 1 After careful review, we affirm. The relevant factual and procedural history of this matter is as follows: In January 2011, [Appellee] Eleanor Reginelli (here inafter “Mrs. Reginelli”) experienced chest pain, and was taken t o [Appellant] Marcellus Boggs, M.D. (hereinafter “Dr. Boggs”), an employee of [Appellant] UPMC Emergency Medicine, Inc., d/b/a Em ergency Resource Management, Inc. (hereinafter “ERMI”). In August 2012, [Appellees] brought suit, alleging that Dr. B oggs’ negligence resulted in permanent damage to Mrs. Reg inelli’s heart. In the course of discovery, [Appellees] lea rned Dr. Brenda Walther – an ERMI employee who was Dr. Boggs ’ supervisor at the Hospital – kept performance data for the emergency department physicians at the Hospital. [Appellees] requested this performance data, which included, but was not limited to, Dr. Boggs’ performance file. [ Appellants] objected to this discovery request, and, on June 19 , 2014, this [c]ourt heard argument on [Appellees’] motion to co mpel. On August 29, 2014, this [c]ourt granted Plaintiffs’ m otion. . . .

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1 Appellant Hospital filed an appeal and Appellants ERMI and Dr. Boggs filed a separate appeal of the order. As the issues rais ed in the two appeals are identical, we dispose of both appeals simultaneousl y in this memorandum.J-A23019-15 & A23020-15

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[Appellants] Boggs, the Hospital, and ERMI appealed , 2 but only with regard to Dr. Boggs’ performance file. Trial Court Opinion, 11/25/14, at 1-2. Appellants raise the following issues on appeal:

1. Whether the August 29, 2014 [order] granting Plaint iffs’ [m]otion to [c]ompel [d]iscovery[] is a collateral order appealable as of right pursuant to Pa.R.A.P. 313, w hen that order compels production of documents protected fro m production as privileged under the Pennsylvania Pee r Review Protection Act[.] 2. Whether the trial court committed an error of law i n issuing its August 29, 2014 [order,] as it pertained to Pla intiffs’ Document Request Number 10, requesting “the complet e ‘performance file’ for [Dr.] Boggs maintained by Dr . Walther as she described during her recently reconvened dep osition” when the evidence of record shows [the] file and do cuments contained therein are the result of the review and evaluation by the Director of Emergency Services at Monongahel a Valley Hospital, Inc.[,] in accordance with the Pennsylvan ia Peer Review Protection Act[,] of the quality and efficie ncy of health care services being performed and provided to patie nts by other physicians, and therefore that file is privil eged and protected from discovery under that act. Brief for Appellant, Monongahela Valley Hospital, I nc., at 5-6.

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2 The Reginellis assert that ERMI and Dr. Boggs are not aggrieved parties and have no standing to appeal the order granting t he motion to compel since it compelled production from the Hospital onl y. However, ERMI and Dr. Boggs take the position that they are aggrieved because Dr. Boggs’ performance file was created and maintained solely on behalf of ERMI. On this basis, ERMI and Dr. Boggs assert that the perf ormance file is privileged as peer review. Thus, ERMI and Dr. Boggs have a di rect interest in the outcome. Cf. Harrison v. Hayes , 870 A.2d 326, 330 (Pa. Super. 2005) (non-party entity which did not allege peer review privilege did not have standing to appeal grant of motion compelling defen dant hospital to produce documents).J-A23019-15 & A23020-15

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We begin by considering whether the order compellin g production of Dr. Boggs’ performance file is an appealable order. Ordinarily, [a]n appeal may be taken only from a final order un less otherwise permitted by statute or rule. A final ord er is ordinarily one which ends the litigation or disposes of the en tire case; however, “[a]n appeal may be taken as of right from a collateral order of an administrative agency or lower court.” Pa.R.A.P. 313(a). A collateral order is defined under Pa.R.A. P. 313(b) 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 r eview is postponed until final judgment in the case, the cla im will be irreparably lost.” Ben v. Schwartz , 729 A.2d 547, 550 (Pa. 1999). Instantly, the trial court has ordered disclosure o f Dr. Boggs’ performance file, comprised of documents which Appe llants assert are confidential pursuant to the Pennsylvania Peer Revi ew Protection Act (the “Act”). 3 Such orders are reviewable by this Court as colla teral orders under Pa.R.A.P. 313. First, “the issue of privilege is s eparate from the merits of the dispute for purposes of the collateral order do ctrine.” Ben , supra at 552. Secondly, if the trial court granted disclosu re in error, the confidential nature of allegedly protected documents would be ir reparably lost. See

Dodson v. DeLeo , 872 A.2d 1237 (Pa. Super. 2005) (in professional negligence action, order requiring disclosure of in formation hospital contended was protected from discovery pursuant to the Act was appealable

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3 63 P.S. §§ 425.1-425.4.J-A23019-15 & A23020-15

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collateral order since confidential nature of docum ents would be lost if disclosed). Thus, the order granting the Reginelli s’ motion to compel discovery is an appealable collateral order. Next, we turn to whether the trial court committed an error of law in ordering the disclosure of Dr. Boggs’ performance f ile. Appellants assert that the performance file is protected from discove ry pursuant to the Act. In our analysis of whether the performance file is pro tected, we note that the purpose of the Act is “to facilitate self-policing in the health care industry” and that the “medical profession itself is in the b est position to police its own

activities.” Dodson , supra at 1242. The medical profession regulates itself via peer re view, defined as “a procedure for evaluation by professional health car e providers of the quality and efficiency of services ordered or performed by other professional health care providers.” Venosh v. Henzes , ___ A.3d ___, 2015 PA Super 169, *2 (filed August 7, 2015) (citing 63 P.S. § 425.2). R egarding peer review, the Act mandates that “proceedings and records of a rev iew committee shall be held in confidence.” 63 P.S. § 425.4. However, “u nder the express terms of the Act, ‘peer review occurs only when one professi onal health care provider is evaluating another professional health care prov ider.’” Venosh , supra at *2 (quoting Yocabet v. UPMC Presbyterian , 119 A.3d 1012, 1021 (Pa. Super. 2015)). The parties dispute whether the contents of Dr. Bog gs’ performance file are privileged peer review records and whether Appellants may invokeJ-A23019-15 & A23020-15

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the protection of the Act. We note that the “party invoking a privilege must initially set forth facts showing that the privileg e has been properly invoked.”

Yocabet , supra at 1019. As with other privileges, the privilege arising under the Act applies only to information that rema ins private. See

Dodson , supra at 1243 (peer review privilege could be invoked be cause “documents were both generated and used exclusively by [] peer review department”). Here, the alleged peer review was conducted by Dr. Walther, an ERMI employee. Dr. Boggs’ performance file was “create d and maintained solely by Dr. Walther on behalf of her employer.” Reply B rief of ERMI and Boggs, at 6. The Hospital therefore cannot claim that the file is the Hospital’s privileged peer review, since, as the trial court n oted, “it is untenable that the Hospital could claim a privilege for documents that it neither generated nor maintained.” Trial Court Opinion, 11/25/14, at 2-3. Thus, any privilege that may exist regarding Dr. Boggs’ performance fil e cannot be invoked by the Hospital. ERMI and Dr. Boggs are also unable to claim privile ge pursuant to the Act. First, ERMI, as an independent contractor sta ffing the Hospital’s emergency room, is not an entity enumerated in the Act as being protected by peer review privilege. See 63 P.S. § 425.2; see also McClellan v. Health Maint. Org. of Pennsylvania , 686 A.2d 801, 806 (Pa. 1996) (professional health care providers that may conduc t privileged peer review are either direct health care practitioners or admi nistrators of a health careJ-A23019-15 & A23020-15

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facility). Secondly, even if ERMI were considered to be an entity entitled to assert the Act’s peer review privilege, Dr. Boggs’ performance file did not remain exclusive. Instead, it is apparent that ERM I shared the file with the Hospital, since the Reginellis sought the file from the Hospital and the Hospital has provided it in camera . Thus, any privilege for Dr. Boggs’ performance file that may have existed was destroye d via disclosure to the Hospital.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/23/2015