OPINION BY BOWES, J.:
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 invocation of the privilege established by the Pennsylvania Peer Review Protection Act, 63 P.S. § 425.1, et seq. (the "Act").
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
Did the trial court err as a matter of law in holding that
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 plenary." Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1019 (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
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, 442 Pa.Super. 504, 660 A.2d 97 (1995), aff'd by an equally divided court, 546 Pa. 463, 686 A.2d 801 (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 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, 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
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 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 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.
Order affirmed.