Pennsylvania Superior Court Affirms PSQIA Privilege, Limits MCARE Protection in Boyle Decision

The Pennsylvania Superior Court recently addressed the issue of when defendant health care providers can assert privilege under the MCARE Act and the Patient Safety and Healthcare Quality Improvement Act (PSQIA) to protect documents during discovery. In Boyle v. Main Line Health, Inc., the plaintiffs sued the defendant hospital and health care providers in connection with injuries sustained by a newborn child during his birth. As the suit moved to discovery, the plaintiffs sought documents from the defendants relating to the review and investigation of the plaintiff-mother’s delivery of her baby. The defendants responded with a privilege log that claimed that the Patient Safety Reporting System (PSRS) document was privileged under MCARE, and the Patient Safety Occurrence Worksheet (PSOW) and the Situation Background Assessment/Recommendations (SBAR) reports were privileged under PSQIA. After the trial court ordered production of the documents, defendants filed a motion for reconsideration and a notice of appeal.

On appeal to the Superior Court, the defendants argued that the trial court had erred in (1) ordering production of the PSRS report that defendants claimed was privileged under MCARE and (2) requiring production of patient safety work product that was privileged under PSQIA.

The Superior Court outlined two steps to determine if a document is privileged under MCARE. First, the document must have been prepared solely for the purpose of reporting under MCARE section 308(a). Second, the documents must concern matters that the patient safety committee has investigated. If both prongs are met, the documents are privileged under MCARE.

The court emphasized that the language of the MCARE statute is “matters reviewed,” not “matters generally reviewed.” This language indicates that a patient safety committee needs to have reviewed the particular incident that the documents discuss, but, importantly, does not mean that the party asserting privilege must demonstrate that the patient safety committee actually reviewed the documents at issue.

After considering hospital employee affidavits, the Superior Court determined that the PSRS report was created solely to comply with MCARE. However, the court found that the report was not privileged under MCARE because the defendants failed to meet their burden of showing that the patient safety committee had reviewed the events the report discussed. Therefore, the Superior Court affirmed the trial court’s order requiring the defendants to disclose the PSRS report.

The Superior Court then evaluated whether the trial court had erred in requiring the defendants to disclose the PSOW and SBAR reports. PSQIA states that “patient safety work product” shall be privileged and not subject to subpoena or discovery and shall not be admitted as evidence.

The Superior Court agreed with the defendants that the PSOW and SBAR reports were privileged under PSQIA. The court found that the reports qualified as patient safety work product because they represented the “deliberations or analysis of” a patient safety evaluation system. The court reasoned that the reports had been produced solely in accordance with the hospital’s patient safety evaluation system and had been reported to the patient safety organization. The court noted that there is no requirement under PSQIA for the “deliberations and analysis” to actually be reported to the patient safety organization for those deliberations to qualify as patient safety work product.

The court concluded that the defendants had met their burden of demonstrating that PSQIA privilege applied to the PSOW and SBAR reports, and that the burden now shifted to the plaintiffs to show that disclosure of those documents would not violate PSQIA privilege.

Comment: Boyle v. Main Line Health, Inc. demonstrates steps health care providers must take to trigger privilege under the MCARE Act and the PSQIA. To assert privilege under MCARE, a health care provider must prepare a document solely for the purpose of reporting under MCARE, and must ensure that the document’s subject matter has been reviewed by a patient safety committee. To assert privilege under PSQIA, documents must qualify as patient safety work product. As seen in Boyle, one way to demonstrate that documents are patient safety work product is to show that they were produced solely in accordance with the patient safety evaluation system and were reported to the patient safety organization.

Notably, the Boyle court emphasized that PSQIA has no requirement that “deliberations and analysis” of a patient safety evaluation system actually be reported to a patient safety organization to qualify as patient safety work product. However, reporting can be another factor in favor of finding that a document is privileged.