Peer Review Act Does Not Apply when Initiated by an Insurance Company

Gary Solomon

Attorney Gary Solomon was involved in a case that established that the Pennsylvania Peer Review Protection Act applies to health care providers and not insurance companies. The case is Venosh v. Henzes and it explores issues of “quality-of-care review[s]” and whether they can be discovered as part of a medical malpractice claim. The insurance company, Blue Cross of Northeastern Pennsylvania, had argued that the information should not be discoverable because it was protected under the law.

The Superior Court found that, when a medical peer review is “initiated by an insurance company” as opposed to by the medical provider itself, the review is not privileged.

Pennsylvania Peer Review Protection Act

The Peer Review Act applies to health care providers.

If a patient is injured or killed, hospitals often perform peer reviews to determine what happened and to prevent similar errors from occurring in the future. Many jurisdictions, concerned that such reviews would be discouraged if they could be utilized in lawsuits, passed laws protecting these reviews from the discovery process during litigation. In our jurisdiction, this law is called the Pennsylvania Peer Review Protection Act.  The Act is specifically meant to protect health care providers.

The Case

Ann Marie Venosh sued the involved doctors due to difficulties she experienced as a result of surgery. As part of the lawsuit, Venosh’s attorneys began the discovery process. Included in the request was a subpoena to Blue Cross, “seeking records relating to [plaintiff’s] surgical treatment, including any investigative records.” Blue Cross failed to provide documents related to the “quality-of-care” review it had, “conducted of the medical providers and the incident at issue.” It also sought to quash the subpoena as related to the review. A special master, “ordered Blue Cross to produce the investigative materials.” The court of common pleas reversed. This lead to an appeal to the Superior Court and this opinion ordering Blue Cross to produce the materials.

The Opinion

In reaching its opinion, the Superior Court focused on the purpose of the Peer Review Protection Act, noting that its goal, “is to ‘facilitate self-policing in the health care industry.”‘ The Court further noted that, under the Act, a peer review is one health care provider evaluating another.

In its analysis, the Court noted, “Blue Cross does not provide health care services; it sells health insurance.” As a result, Blue Cross’ quality-of-care review, “did not constitute [a] peer review as defined in the Act.” A peer review must be, “initiated by the health care provider.” In addition, Blue Cross’ intent was not to evaluate or improve the quality of health care, which is one of the purposes of the Act. Rather, it was to determine whether to continue its relationship with the defendant doctors.

Conclusion

Based on all of the reasons mentioned, the Court held that an insurance company’s review is not protected under the Peer Review Act and therefore, Blue Cross must produce the materials requested by the Plaintiff. It is likely that this case will be appealed to the Supreme Court of Pennsylvania.