The opinion of the court was delivered by: Mannion, M.J.
Pending before the court is the plaintiff's discovery request for documents and testimony for which the defendants claim protection under the Pennsylvania Peer Review Privilege Doctrine. As directed by the court during a telephone conference, the parties filed letter briefs pertaining to this issue. (Doc. No. 30, Doc. No. 31).
Upon review of the plaintiff's filing, he alleges that, in September of 2006, he was hired as the Medical Director of Defendant Pocono Medical Center, ("PMC"), Cath Lab within the Department of Cardiology. At the same time, the plaintiff alleges that he contracted with PMC as a member of the Hospital's medical staff, and that pursuant to this contract, he became a member of various PMC staff committees, including the Peer Review Committee.
According to the plaintiff, subsequent to his appointment as the Medical Director of the Cath Lab, he became aware of medically unnecessary stent procedures being performed on patients at PMC by another cardiologist, "Dr. Doe." The plaintiff alleges that these procedures and their billing caused him concern and, as a result, from early 2007, he verbally raised his concerns to Dr. Davis, PMC's Chief Medical Officer, and Defendant Goldner, the Chief of Staff. The plaintiff alleges that no action was taken regarding his concerns.
On or about November 19, 2007, the plaintiff claims that he sent an anonymous letter to Defendant PMC identifying thirteen patient cases performed by Dr. Doe where stent procedures had been performed that were neither medically necessary nor reasonable. Thereafter, in February of 2008, the plaintiff alleges that Defendant Goldner stated in a telephone conversation with the plaintiff that it was his belief, as well as the belief of Dr. Davis and the Defendant Hospital's administration, that the plaintiff had written the anonymous letter. Subsequent to this conversation, the plaintiff alleges that Defendant Goldner, Dr. Davis and the Hospital's administration began a campaign to harass and intimidate him and, at the same time, to protect Dr. Doe from the consequences of performing the unnecessary procedures and related questionable Medicare billings associated with the procedures. The plaintiff alleges that, rather than utilizing PMC's normal procedures and peer review committee to vet the plaintiff's concerns, Dr. Davis, Defendant Goldner and PMC devised a plan to shield Dr. Doe from exposure and discredit the plaintiff in order to exclude him from the review process and compromise his ability to practice medicine at PMC and in Monroe County, generally.
The plaintiff claims that, as part of the defendants' coverup, Defendant Goldner obtained an outside opinion from the medical director of the Lehigh Valley Hospital Cath Lab regarding the questioned procedures. However, according to the plaintiff, that doctor's opinion confirmed the plaintiff's reports that Dr. Doe had undertaken medically unnecessary and unreasonable stent procedures. As a result, the plaintiff alleges that Defendant Goldner and PMC were forced to take additional action and did so by engaging an outside firm, the American Medical Foundation, ("AMF"), to undertake an unfocused review of the entire Cath Lab, rather than a focused peer review pertaining to Dr. Doe's thirteen cases, as would be standard protocol under the PMC Bylaws.
The plaintiff alleges that he expressed his concerns to PMC's administration and Defendant Goldner as to the insufficiency of the AMF review and his lack of participation. Thereafter, the plaintiff claims that he was subjected to various discriminatory and retaliatory acts by PMC and Defendant Goldner, including the filing of a complaint against the plaintiff in 2009 with the prosecution division of the Bureau of Professional and Occupational Affairs for unprofessional conduct based upon the allegation that the plaintiff had resigned under investigation for unlawfully accessing patient records. The plaintiff alleges that he had never been notified up until when he had sought a reference from PMC some three months after his resignation that this charge had been made against him and that he was under "hospital review."
As a result of the plaintiff's allegations, he has initiated the instant action which claims violations of various federal and state statutes, including 31 U.S.C. §3730(h), the Federal Whistleblower's Protection Act; 42 U.S.C. §1981, retaliation; 28 U.S.C. §2201, the Federal Declaratory Judgment Act; 43 P.S. §142, et seq., the Pennsylvania Whistleblower's Law; and 42 Pa.C.S.A. §7531, et seq., the Pennsylvania Declaratory Judgment Act. In addition, the plaintiff has set forth state law claims for breach of contract, fraudulent inducement of employment, intentional interference with business and contractual relations and future economic opportunities, intentional infliction of emotional distress, negligent misrepresentation, fraudulent and/or intentional misrepresentation, constructive discharge due to hostile environment, wrongful discharge in violation of public policy, and false light invasion of privacy. (Doc. No. 3).
To date, the plaintiff claims that other than providing him with the results of the AMF report concerning its review of the plaintiff, which he already had, and the plaintiff's medical file and some other incidental documentation as produced in its initial Rule 26 disclosure, the defendants have failed to produce any documents which they maintain are protected from disclosure under the Pennsylvania Peer Review Protection Act, 63 P.S. §425.1-425.4.
The plaintiff has indicated his willingness to enter into a comprehensive confidentiality agreement and protective order to strictly regulate the use of these records for which peer review protection has been asserted. Despite this, the plaintiff contends that the defendants continue to resist the production of these records and testimony, claiming putative liability to third parties.
The plaintiff argues that his request for discovery and testimony to be elicited at depositions in this action advancing federal statutory and civil rights claims is not barred by the Pennsylvania Peer Review Protection Act. In support of this contention, the plaintiff cites to Ray v. Pinnacle Health, et al., 2008 WL 2168899 (M.D.Pa.). As stated by the plaintiff, in Ray, the plaintiff sought the production of peer review information in the form of quality assurance documents for all surgical medical staff at Pinnacle, and records of fair hearing and appeal review committees, for a six year period. In ruling on the plaintiff's request, the Honorable Sylvia H. Rambo found that the plaintiff's request was not barred by the Pennsylvania Peer Review Protection Act. In so finding, Judge Rambo stated as follows:
In a suit under federal law, federal rather than state privilege law applies. Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000). Although every state including Pennsylvania recognizes some form of medical peer review privilege, no federal court has ever recognized such a privilege under federal law. The Third Circuit has not yet considered the issue, but the three circuits to do so have all declined to recognize a federal peer review privilege. See Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007); Virmani v. Novant Health Inc., 259 F.3d 284 (2001); Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1063 (7th Cir. 1981). The general purpose of a peer review privilege is to encourage candor among medical staff by shielding the information from disclosure in medical malpractice suits. However, this purpose is not furthered by recognizing the privilege in civil rights cases. Recognizing this, Congress has specifically considered and rejected the applicability of a federal peer review privilege to civil rights lawsuits. See 42 U.S.C. §11111. ...