IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION
RUSSELL GEIGER and ANNA GEIGER, :
Plaintiffs :
:
vs. : No. 1999-C-2582V
:
STEVEN ZELENKOFSKE, D.O., :
LUIS CONSTANTIN, M.D., :
HEART CARE GROUP, P.C. and :
LEHIGH VALLEY HOSPITAL, :
Defendants :
* * * * * * * * * *
APPEARANCES: NANCY H. FULLAM, ESQUIRE, AND WITH HER,
McELDREW & FULLAM, P.C.,
For the Plaintiffs
GEORGE M. NACE, III, ESQUIRE, AND WITH HIM,
POST & SCHELL, P.C.,
For the Defendants Steven Zelenkofske, D.O.;
Luis Constantin, M.D.; and Heart Care Group, P.C.
TIMOTHY T. STEVENS, ESQUIRE, AND WITH HIM,
STEVENS & JOHNSON,
For Defendant Lehigh Valley Hospital
* * * * * * * * * *
OPINION
THOMAS A. WALLITSCH, J.
The issue raised by Defendants' Motion for Protective Order relates to the
troubling language of the Pennsylvania Peer Review Protection Act, 63 P.S. §
425.1, et seq. ("PPRPA"). Defendants claim that Plaintiffs' request
for the defendant physicians' applications for staff privileges, their credential
files, and the complication rate for electrophysiology laboratory procedures
are protected by this Act. For the reasons set forth below, we disagree.
This is a medical negligence action in which the Plaintiff, Russell Geiger,
suffered catastrophic injuries allegedly from the medical care provided to him
by the Defendants during his admission to the Lehigh Valley Hospital in the
fall of 1997. It alleged that Dr. Zelenkofske was negligent in the placing of
a permanent pacemaker in Mr. Geiger and that Dr. Zelenkofske tore the left subclavian
vein during this procedure. It is alleged that Dr. Constantin and the Heart
Care Group, P.D. failed to oversee and supervise the actions of Dr. Zelenkofske.
It is also alleged that the Lehigh Valley Hospital is liable under a corporate
liability theory, alleging that it failed to properly control Dr. Zelenkofske's
practice at the hospital.
The confidentiality provisions of the PPRPA, 63 P.S. § 425.1-425.4 have
been the subject of extensive discussion and judicial review. Unfortunately,
this was necessitated by the general wording of these provisions and the lack
of definitive appellate court interpretation to date.
The PPRPA does not specifically delineate what information is protected from
discovery by the privilege created by the legislation and what information is
discoverable. Moreover, it was adopted prior to the Pennsylvania Supreme Court
recognizing a cause of action for corporate liability on the part of a hospital
in Thompson v. Nason Hospital. 527 Pa. 330, 591 A.2d 703 (1991). Therefore,
we must both attempt to interpret the vague provisions of the confidentiality
sections of the PPRPA and consider them in light of the policy of the Commonwealth,
as set forth by the Pennsylvania Supreme Court, concerning corporate liability
on the part of a hospital.
The Plaintiffs request three separate types of items from the Defendants: (1)
the applications for staff privileges filed by the individual doctors; (2) the
individual doctors' credential files; and (3) the complication rates for the
electrophysiological lab procedures done by Dr. Zelenkofske. Each must be considered
in turn.
Plaintiffs claim that Lehigh Valley Hospital failed to properly evaluate the
two individual physicians for privileges at the hospital. The courts of common
pleas of the Commonwealth of Pennsylvania have been divergent on this issue.
We believe that the better reasoned cases are those that have permitted discovery
of the applications for staff privileges. As the Washington County Court of
Common Pleas indicated in Fowler v. Pirris, 34 Pa. D. & C.3d 530 (1981),
"a recital in the applicant's own words of what qualifications he believes
he has that would entitle him to a staff position" should not be protected
by the PPRPA since this information is critical in proving corporate negligence.
This information would also seem very relevant concerning the physician's knowledge
and skill in performing such procedures as the Cumberland County Court of Common
Pleas concluded in Fuller v. Jackson, 50 Pa. D. & C.3d 628 (1987).
Defendants cite to the only potentially relevant appellate court case in support
of their Motion for Protective Order. That case, Young v. Western Pennsylvania
Hospital, 722 A.2d 153 (Pa. Super 1998) is not dispositive of this case. The
three judge panel of the Pennsylvania Superior Court apparently concluded that
the discovery requests in that case were too "open- ended" and that
was the reason for their decision. We do not read that case as being conclusive
on the issue as to whether the request for applications for staff privileges,
when specifically requested as in this case, should be prohibited. We must remember
that the Pennsylvania Supreme Court established a cause of action for corporate
negligence of hospitals for failure to properly hire or supervise physicians,
or grant them privileges, and to prohibit the Plaintiffs from securing this
information make that cause of action a practical nullity.
Plaintiffs also seek the credential files for the individual physicians. We
believe that such decisions as that authored in Nelson v. Landsberg, M.D., et
al. by Judge Maier of the Philadelphia County Court of Common Pleas (February
Term, 1991, No. 1860), March 26, 1993, permitting discovery of, inter alia,
the credential files of the defendant physician, is a well reasoned decision
which we support. For essentially the same reasons mentioned above concerning
the applications for staff privileges, we deny Plaintiffs' Motion for Protective
Order.
Lastly, Plaintiffs seek to preclude discovery of the complication rates of the
procedures performed by Dr. Zelenkofske in the electrophysiological lab. I have
previously held, in Gilbert, et al. v. Sacred Heart Hospital, et al. (Court
of Common Pleas, Lehigh County, Nos. 90-C-0312, 91-C-1018, 93-C-1679) May 2,
1995, that a document prepared in the ordinary course of a hospital's routine
care of patients and also reviewed for peer review purposes falls under the
exception rather than the main confidentiality provisions of the PPRPA. Going
further, I held that records prepared by an independent administrative officer
for different purposes, not limited to peer review, was discoverable. I have
no indication from what was submitted to me that the complication rates were
prepared solely for peer review purposes and, therefore, hold that they, too,
are discoverable. The relevancy of such studies is clear, both from the standpoint
of the negligent claims against Dr. Zelenkofske as well as the corporate negligent
claims against the hospital.
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION
RUSSELL GEIGER and ANNA GEIGER, :
Plaintiffs :
:
vs. : No. 1999-C-2582V
:
STEVEN ZELENKOFSKE, D.O., :
LUIS CONSTANTIN, M.D., :
HEART CARE GROUP, P.C. and :
LEHIGH VALLEY HOSPITAL, :
Defendants :
O R D E R
AND NOW, this 16TH day of August, 2001, upon consideration of the Motion for
Protective Order filed on behalf of the Defendants, Steven Zelenkofske, D.O.,
Luis Constantin, M.D., and Heart Care Group, P.C., and joined in by Defendant
Lehigh Valley Hospital, and for the reasons set forth in the accompanying Opinion,
said Motion for Protective Order is denied.
BY THE COURT:
____________________________________
THOMAS A. WALLITSCH, J.