Pennsylvania Medical Malpractice – Beware the Privilege Traps

Bringing a successful medical malpractice claim against a Pennsylvania hospital is a formidable undertaking. It necessitates not only a sophisticated grasp of both medicine and the legal landscape but also a relentless pursuit of evidence to substantiate a claim. In Pennsylvania, hospitals bear responsibility for the negligent acts committed by their doctors. To establish hospital liability, a plaintiff must prove that the doctor’s care fell below the standard of care, resulting in harm to the patient. However, what often escapes patients and practitioners alike is the nuanced interplay of Pennsylvania and federal laws, which may allow hospitals to withhold critical evidence under the guise of a patient safety or peer review privilege. As medical malpractice attorneys, it becomes imperative to challenge these designations when warranted, as the outcome of the case can hinge on the application of privilege.

A. Pennsylvania’s Patient Safety Privilege

Pennsylvania’s patient safety privilege is statutory and is codified in the MCARE Act. The Pennsylvania MCARE Act requires medical facilities to establish patient safety committees for reporting and investigating serious events and incidents, who are in turn obligated to perform certain functions as set forth in Section 310(b) of the Act. See 40 P.S. §§ 1303.309-1303.310. The MCARE Act contains a confidentiality provision (usually referred to as “Patient Safety Privilege”) that shields certain materials from discovery. But this protection only extends to “documents, material or information solely prepared or created for the purpose of compliance with Section 310(b)” which “arise out of matters reviewed by the patient safety committee.”

Over the past several years, Pennsylvania courts have significantly narrowed the scope of the Patient Safety Privilege.  Under Pennsylvania law, a hospital asserting the Patient Safety Privilege must establish that the nondisclosed materials (1) were “solely prepared or created for the purpose of compliance with” the MCARE Act’s “serious events” reporting requirements or the patient safety committee’s responsibilities; (2) “arise out of matters reviewed by the patient safety committee … or the governing board”; and (3) are not otherwise available “from original sources.” These elements were set out in a seminal case dealing with the Pennsylvania Patient Safety Privilege, Venosh v. Henzes.

With respect to the first element of the Patient Safety Privilege, the Pennsylvania Superior Court has emphasized that the critical term is “solely,” which “means ‘without another or others,’ or ‘only, exclusively, merely, or altogether.’” Thus, for a hospital to assert a privilege under this section, it must meet its burden of demonstrating that the documents at issue were exclusively prepared or created to comply with MCARE.

In sum, under Pennsylvania law, a hospital can only withhold records if they can show that the records were: (1) created for the sole purpose of compliance with an MCARE Act duty; and (2) arose out of materials actually presented to an MCARE-defined Patient Safety Committee or governing board.

Overcoming Misuse of Patient Safety Privileges

Patient safety privileges serve a valuable purpose, but they shouldn’t obstruct justice. As we’ve explored, patient safety privileges—both at the state and federal levels—exist not to shield individual providers or institutions but to elevate the entire healthcare system. The purpose is noble: fostering a culture of learning from mistakes and enhancing patient care.

Yet, at times the reality diverges from intent. Hospitals, wielding the cloak of privilege, may misuse it to withhold crucial evidence. Pennsylvania medical malpractice attorneys must be prepared to identify and zealously challenge misuse of this privilege, Here’s a roadmap:

1. Know the Nuances: Familiarize yourself with the elements and exceptions of both state and federal patient safety privileges. These protections are narrow by design but are frequently exploited by hospitals to conceal inculpatory evidence.
2. Pennsylvania’s MCARE Act: The state’s patient safety privilege, codified in the MCARE Act, shields certain materials from discovery. However, it extends only to documents created for compliance with Section 310(b) and arising from patient safety committee reviews.
3. The Burden of Sole Purpose: The critical term is “solely.” Hospitals must demonstrate that the undisclosed materials were exclusively prepared for compliance with reporting requirements or patient safety committee responsibilities.
4. Venosh v. Henzes: This seminal case set the parameters for the Pennsylvania Patient Safety Privilege. Courts have narrowed the scope, emphasizing transparency over secrecy.