Yocabet ( and Mecinnac) v. UPMC Presbyterian, et al.
Recently, the PA Superior Court, in Yocabet ( and Mecinnac) v. UPMC Presbyterian, et al. held that data produced to CMS and the PA DOH in connection with an inspection of defendant’s facility is not protected information under the state’s peer review protection statute, 63 P.S. Sec. 425.1-425.4 .
Attorney – Client Privilege
Yocabet and Mecinnac were husband and wife. Mr. Yocabet was on defendant’s kidney transplant list and Ms. Mecinnac agreed to be tested to determine her eligibility to be a kidney donor for Mr. Yocabet. Ms. Mecinnac tested positive for Hepatitis C, which under federal/state laws invalidates her candidacy as a donor. Remarkably, despite several physicians and transplant review committee evaluations, all purportedly having reviewed Ms. Mecinnac’s lab work, approved the transplant. The surgery occurred without complication. Shortly after surgery, it was determined that Mr. Yocabet had received a diseased kidney and now developed Hepatitis C. The treatment for Hepatitis C results in eventual kidney failure and death.
CMS (Medicare) and DOH (Medicaid) performed an investigation in connection with these events in order to determine defendant’s compliance with the Medicare/Medicaid program. CMS found violations, and defendant submitted a plan of correction to comply with the program’s rules and regulations. CMS’ investigative report was made available to the public. Plaintiffs sought to discover the information provided to CMS/PA DOH by defendant in connection with the investigation. Defendant claimed peer review protection and refused to produce the requested information. A special discovery master determined that the information was not protected because defendant was not conducting “peer review” during the CMS/PA DOH investigation. The trial court affirmed and the appeal to the Superior Court followed.
The Superior Court affirmed holding that CMS and the PA DOH are not health care providers, and therefore, did not conduct peer review during its investigation. The court further reasoned that protecting the materials from discovery would not facilitate the purpose of the Peer Review Act, namely self-policing.
Of interest, the court remanded the case back to the trial court to conduct an in-camera review of board meeting minutes in an effort to determine whether the peer review and/or attorney-client privilege applies.
