Blue Cross must produce quality-of-care review documents in malpractice case

By Nicholas Malfitano | Aug 14, 2015

Noah E. Katz  

HARRISBURG – Per a decision released Aug. 7, the Superior Court of Pennsylvania affirmed the Aug. 8, 2014 decision of the Lackawanna County Court of Common Pleas to compel Blue Cross of Northeastern Pennsylvania to produce documents related to quality-of-care review in a medical malpractice action.

Judges Mary Jane Bowes, Christine L. Donohue and Cheryl Lynn Allen ruled in this case, with Bowes authoring the decision upholding the rejection of the Pennsylvania Peer Review Protection Act (PRPA), a form of privilege invoked by Blue Cross.

Ann Marie Venosh initiated this action in May 2011, in connection with an allegation of medical malpractice on the parts of Scranton-based defendants Dr. Jack Henzes, Physician Assistant Cindy S. Anderson, Scranton Orthopedic Specialists and Moses Taylor Hospital.

According to Venosh, the defendants were collectively guilty of malpractice in causing her to suffer various and unnecessary injuries, resulting from an occluded artery during a knee replacement surgery on June 11, 2009.

Venosh claimed Henzes and Anderson performed total knee replacement surgery on her left knee at Taylor Hospital on that day. During the surgery, Henzes allegedly caused an occlusion of the left popliteal artery, which a vascular surgeon immediately repaired.

As a result of the occlusion, the plaintiff suffered from “left foot drop, peroneal neuropathy, and left-leg numbness, weakness, muscle spasm, swelling, pain, nerve damage, cramping induced by exercise, and functional limitations.”

On Aug. 13, 2013, plaintiff counsel served Blue Cross with a subpoena seeking records relating to Venosh’s surgical treatment, including any investigative records.

Following a request by Blue Cross, the plaintiff disseminated the same subpoena to its affiliate, First Priority Health. At that point, Blue Cross withheld materials relating to a quality-of-care review it conducted of the medical providers and the subject incident at issue, and through its counsel, further moved to quash the subpoena as to any documents related to that review. 

The discovery matter was referred to a special master, who concluded that the PRPA’s privilege applied. Venosh appealed to the Lackawanna County Court of Common Pleas, which reversed the special master’s decision and ordered Blue Cross to produce the investigative materials.

Blue Cross and First Priority Health filed the current appeal, and the trial court agreed to stay its order pending resolution of the present appeal.

It was the Superior Court's duty to determine whether the Lackawanna County Court of Common Pleas had erred in its decision of compelling Blue Cross and First Priority Health to produce the desired records, superseding the PRPA’s confidentiality provision.

First Priority Health was Venosh’s medical insurer at the time of the surgery and is an independent practice type of health maintenance organization (IPA-HMO). First Priority is a subsidiary of Blue Cross, a seller of health insurance. 

“Blue Cross has procedures whereby it can conduct review of the medical treatment delivered by the health care providers with which it contracts. The primary purpose of that review process is to ensure that Blue Cross’s insureds are receiving the appropriate level of medical care from the health care providers,” Bowes said.

A Blue Cross medical director, a nurse, and an orthopedic surgeon conducted the examination of the medical care given to the plaintiff. Blue Cross claims that the PRPA’s confidentiality provision applies to any materials relating to its review of the medical care provided to the plaintiff.

Though the appellees claimed confidentiality, a key point which led The Superior Court of Pennsylvania to concur with the Lackawanna County Court of Common Pleas in this matter was delineating precisely between a provider of health insurance and a provider of medical care.

“In the present appeal, appellants admit that they are not professional health care providers as defined in the Act. This Court concluded [in McClellan v. Health Maintenance Organization] that an IPA-HMO could not be considered a professional health care provider because it does not deliver any type of medical services,” Bowes said. 

“A corporation that provides health insurance and not medical care, is not a professional health care provider. That decision further states that unless an entity is a professional health care provider, it does not conduct peer review, and any review conducted by such an organization is not confidential under the Act,” Bowes added, and affirmed the trial court’s judgment.

The appellant is represented by Jeffrey T. Kornblau and Gary Solomon of Kornblau & Kornblau, in Jenkintown.

The appellees are represented by James A. Doherty, Jr. of Scanlon, Howley & Doherty; Timothy E. Foley of Foley, Comerford & Cummins; and Eugene P. Feeney and Noah E. Katz of Weber Gallagher, all in Scranton.

The Superior Court of Pennsylvania case 1393 MDA 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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