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Ruling on Ungurian PSQIA Review Petition Held Up Pending Leadbitter Decision

On December 16, 2020, the Pennsylvania Supreme Court issued an order holding its decision on the Petition for Allowance of Appeal filed in Ungurian v. Beyzman, 2020 Pa. Super. LEXIS 355 (April 28, 2020) pending the release of its decision in Leadbitter v. Keystone Anesthesia Consultants, Ltd., 229 A.3d 292 (Pa. Super. 2020), rev. gr., 2020 Pa. LEXIS 4826 (Pa., Sept. 15, 2020). At the same time, the Pennsylvania high court granted our petition to file an Amicus Curiae Brief in support of the Hospital’s position in Ungurian, filed on behalf of the Alliance for Quality Improvement and Public Safety (AQIPS) and a consortium of Patient Safety Organizations (PSOs). The court also granted the Amicus Curiae Petition filed by the Hospital and Healthsystem Association of Pennsylvania, the American Medical Association, the Pennsylvania Medical Society, PsychSafe, and the Guthrie Clinic. 

The Superior Court’s decision in Ungurian is hostile to privilege protection for quality, safety, and peer review functions afforded by the federal Patient Safety and Quality Improvement Act (PSQIA), the Pennsylvania Peer Review Protection Act (PRPA) and Pennsylvania’s Patient Safety Act/Act 13 (MCARE). We have previously commented on the result-driven analysis applied in that case to deny protection under federal and state privilege laws for classic patient safety materials, including an Event Report and a Root Cause Analysis. We also explained how the Ungurian case perpetuated the legally unsupportable conclusion suggested by Reginelli v. Boggs, 645 Pa. 470, 484 (Pa. 2018), and embraced by the Superior Court in Estate of Krappa v. Lyons, 211 A.3d 869 (Pa. Super. 2019), app. den., 222 A.3d 372 (Pa. 2019) and the Leadbitter case, that the peer review evaluation materials contained in hospital credentials files are not protected under federal or state law. 

On September 15, 2020, the Pennsylvania Supreme Court granted review of the Leadbitter decision on two key points relating to credentials files which are also present in Ungurian: (i) whether peer review materials lose their privilege protection under the PRPA merely because they are maintained in hospital credentials files; and (ii) whether the order to produce NPDB reports maintained in a hospital credentials file is contrary to the confidentiality mandates of the federal Healthcare Quality Improvement Act, 42 U.S.C. § 11137(b)(1) (HCQIA). 

The effect of the December 16 order is to hold Ungurian in suspense until Leadbitter is decided, thereby resolving one of the two issues presented in the Ungurian petition. Once Leadbitter resolves the credentials files question, the Pennsylvania Supreme Court will then be in a position, if it chooses, to accept Ungurian for review focused squarely on the critically important question of whether the Superior Court’s strained and erroneous interpretation of the preemptive federal PSQIA eroded the federal privilege protection and undermined the Congressional patient safety/quality goals sought to be achieved by the PSQIA. 

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Author

Robin Locke Nagele is a Principal and Co-Chair of the Firm's Health Care Practice Group. She has a national health care litigation and consulting practice, in which she represents, in complex commercial, regulatory and antitrust matters, proprietary and not-for-profit health care providers, multi-hospital systems, integrated delivery systems, academic/teaching medical centers, and ancillary service providers, along with their medical, executive and corporate leadership.

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