There is little doubt that the way health care is delivered is changing in Pennsylvania. The delivery of service model is expanding rapidly along with an emerging corporate liability theory. It is common in the modern health care delivery system to outsource delivery services by using independent contractors, consultants and other experts. The hospital is no longer considered the sole provider of patient services.

Contemporaneous with the outsourcing model is The Peer Review Protection Act. The Act is an important Pennsylvania statute developed 40 years ago that was meant to facilitate self-policing in the health care industry. The Act seems meant to facilitate frank discussions among people in the health care industry when errors have occurred. But does peer review support patient safety within our modern health care delivery system?

On Nov. 14, the Philadelphia Bar Association’s Medical Legal Committee hosted a CLE titled “Peer Review – For Whose Benefit Is It?” Panelists were Eric H. Weitz, managing partner, Jonathan M. Cohen, LLC; and Mary Ann Martillotti, partner, O’Brien & Ryan, LLP. They discussed the utility and efficacy of the peer review process along with the modern model of health care.

The discussion began with a summary of the Regenilli v. Boggs case. In Regenelli, a physician group and hospital appealed an order directing a subcontracted entity employing a physician to produce the physician’s employee performance file after an allegation of negligence against the physician. The plaintiff had gone to an emergency room presenting with symptoms of chest pain. She was diagnosed with esophageal reflux and was sent home. Later, she suffered a massive heart attack. The doctor who conducted the peer review in that case worked for a subcontracted entity. The hospital that contracted with the third party medical provider claimed protection for his findings under the Peer Review Protection Act. The Superior Court of Pennsylvania held that because the only professional health care providers who may conduct privileged peer review are either direct practitioners or administrators of health care delivery facility, the file was not privileged.

“We have not found any meaningful evidence that peer review has made the delivery of health care services any safer,” Weitz said. The Act sets up procedures and policies for evaluating health care decisions. Confidentiality is
an important part of the peer review process and the act gives immunity to those providing information to a peer
review organization.

Although we have not found any meaningful evidence to support peer review, we do not know if more
mistakes would occur if peer review were discontinued. Additionally, peer review seems to lend itself to medicine,
which is a more collaborative field than the law, which is an inherently adversarial process.

The question remains. “Do processes cloaked in secrecy make the delivery of health care any safer?” Weitz asked. Legitimate public policy rguments exist for review of this process and to explore whether the act benefits patients and promotes public safety for patients and the public-at large.

Maureen M. Farrell ([email protected]), principal of the Law Offices of Maureen M. Farrell, is an associate
editor of the Philadelphia Bar Reporter.

This article originally appeared in Philadelphia Bar Reporter, January 2017.