The Pennsylvania Superior Court Concludes the MCARE Act Does Not Preclude Hospital’s Disclosure of Anonymous Patient Safety Report Author

September 21st, 2023

The Pennsylvania Superior Court Concludes the MCARE Act Does Not Preclude Hospital’s Disclosure of Anonymous Patient Safety Report Author

Richard M. Betz died at UPMC Pinnacle West Shore Hospital (“the Hospital”) following an elective knee surgery. His wife, Jane Betz, initiated a medical negligence survivor and wrongful death action against the Hospital. During the course of discovery, the Hospital produced four incident reports, one of which was submitted anonymously through the Hospital’s online portal in accordance with its MCARE Act patient safety plan. That report stated as follows:

Patient was given 6 x 0.5 mg of hydromorphone and 4 mg of morphine post-op in the PACU. Based on chart documentation, the patient was desatting from the narcotics and required 3L NC [oxygen]. The patient was then transferred from the PACU to WS4 without any bedside handoff to the floor RN. Floor RN found the patient unresponsive and pulseless, and a code blue was activated. After a few days in the ICU the patient was found to have anoxic brain injury due to his cardiac arrest. Care was withdrawn and the patient died during the admission.

Plaintiff requested to depose the author of all four reports. However, Defendants asserted that the MCARE Act precluded the disclosure of the anonymous reporter. Plaintiff moved to compel the deposition, prompting a hearing before a discovery master. The Hospital represented that the identity of the author of the anonymous report was unknown at that time but conceded that it might be discovered Hospital’s reporting system. As such, the Court ordered the Hospital to conduct a reasonable search of its system to try to determine the identity of the reporter, and to serve a verified report of the result of that search upon Plaintiff’s counsel. The Hospital brought this appeal, arguing that the trial court erred in concluding the whistleblower protections of the MCARE ACT, i.e., 40 P.S. § 1303.308 did not protect the anonymity of the author of a confidential serious event report from disclosure in response to civil discovery.

The section of the MCARE Act invoked by the Hospital states as follows in relevant part:

–A health care worker who reasonably believes that a serious event or incident has occurred shall report the serious event or incident according to the patient safety plan of the medical facility unless the health care worker knows that a report has already been made. The report shall be made immediately or as soon thereafter as reasonably practicable, but in no event later than 24 hours after the occurrence or discovery of a serious event or incident. . . . .

–A health care worker who reports the occurrence of a serious event or incident in accordance with subsection (a) . . . shall not be subject to any retaliatory action for reporting the serious event or incident and shall have the protections and remedies set forth in [43 P.S. §§ 1421-1428], known as the Whistleblower Law.

–Nothing in this section shall limit a medical facility’s ability to take appropriate disciplinary action against a health care worker for failure to meet defined performance expectations or to take corrective action against a licensee for unprofessional conduct, including making false reports or failure to report serious events under this chapter.

40 P.S. § 1303.308.

The provisions of the Whistleblower Law concerning protection of employees are as follows:

(a) Persons not to be discharged.–No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste by a public body or an instance of waste by any other employer as defined in this act.

(b) Discrimination prohibited. –No employer may discharge, threaten, or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee is requested by an appropriate authority to participate in an investigation, hearing or inquiry held by an appropriate authority or in a court action.

(c) Disclosure prohibition. —An appropriate authority to which a violation of this act was reported may not disclose the identity of a whistleblower without the whistleblower’s consent unless disclosure is unavoidable in the investigation of the alleged violation.

43 P.S. § 1423. (emphasis added).

The Court concluded the Hospital is not an “appropriate authority” that is bound to protect the identity of the whistleblower. Rather, the “appropriate authorities” at issue are the public entities involved in administering the patient safety provisions of the Act, namely the Patient Safety Authority and the Department of Health. The Hospital instead stands in the shoes of the Whistleblower Law’s concept of an “employer” for purposes of applying protections and remedies of the MCARE Act. The Court reasoned the MCARE Act contains no references to anonymous reporting in § 1303.308, which requires health care workers to make reports in accordance with the medical facility’s patient safety plan but does allow for anonymous reporting to the authority after the internal report is made. See 40 P.S. § 1303.304(b). As such, the Court concluded the MCARE Act contemplates that medical facilities will be aware of who authored reports made pursuant to the patient safety plan insofar as it expressly provides that medical facilities are permitted to discipline and take corrective action against health care workers who make false reports. See 40 P.S. § 1303.308(a).

Betz v. UPMC Pinnacle West Shore Hospital, 2023 PA Super 166 (Sept. 12, 2023) can be accessed here.