PHILADELPHIA – Shortly before trial, a medical malpractice lawsuit brought by the parents of an infant child who underwent emergency surgery to remove one of his testicles was settled.
Lasheena Sipp-Lipscomb and Andres Gardin, Sr., first filed a complaint on April 16, 2020 in the U.S. District Court for the Eastern District of Pennsylvania against Einstein Physicians Pennypack Pediatrics, Albert Einstein Healthcare Network and others alleging violation of the Emergency Medical Treatment Act (EMTALA) and other claims.
Sipp-Lipscomb contacted her son Gardin’s physician at Pennypack Pediatrics on July 23, 2019, due to the then-two-year-old’s acute scrotal pain and swelling on his left testicle. Gardin was then taken to St. Christopher’s Hospital emergency department the next day.
The plaintiffs alleged that the defendant healthcare providers subsequently failed to follow screening procedures and to diagnose Baby Gardin’s urgent medical condition, which resulted in the need to surgically removal his testicle.
U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson later examined a motion to produce a radiologist’s report pertaining to the care which Baby Gardin received.
“In May 2021, plaintiffs learned of a document called the Poletto Report during a deposition. The Poletto Report, as described by plaintiffs, is a report reviewing the quality of care for the allegedly injured infant-plaintiff, authored by a radiologist named Erica Poletto who works for St. Christopher’s. This Court ordered production of the Poletto Report and related documentation and metadata on the basis that peer review privilege did not attach to the Poletto Report itself,” Baylson said.
“Plaintiffs then moved the Court to enforce the subpoena directed to Dr. Poletto and compel testimony regarding the report. Upon a recorded telephonic conference, the Court ordered (1) Poletto to be deposed regarding the structure and process of peer review at St. Christopher’s Hospital; and (2) Supplemental briefing in light of this testimony regarding whether the peer review privilege applies.”
While the plaintiffs argued Dr. Poletto’s deposition regarding the creation of the report has indicated that further substantive discovery regarding its contents should not be barred, defendant St. Christopher countered that “peer review privilege” was attached to this document and would therefore also preclude the plaintiffs from deposing Dr. Poletto regarding the substantive contents of the report.
An important point, Baylson noted, was that Dr. Poletto “never shared the report with the St. Christopher peer review committee and the review process giving rise to this report was not a part of St. Christopher’s peer review process.”
“The Peer Review Production Act (PRPA) was enacted in 1974 to provide a framework for health care providers to evaluate the quality and efficiency of services performed by other professional health care providers via peer review processes. The PRPA provides immunity in certain circumstances to those involved in the peer review process and seeks to protect the documents and communications generated by and through this process,” Baylson said.
“In Reginelli v. Boggs, the Court held that an organization providing independent contractor emergency room services to a hospital, such as defendant Teleradiology Services, could not assert peer review privilege under the PRPA because they are not considered a ‘professional health care provider’ by virtue of the fact that such organizations are unregulated and unlicensed.”
According to Baylson, such privilege did not extend to the report in question.
“It is clear that the PRPA does not apply to the Poletto Report. Defendant Teleradiology Solutions cannot assert privilege over the report because it is not a ‘professional health care provider’ as is statutorily defined and interpreted by Reginelli. Defendant St. Christopher’s likewise cannot assert privilege over the document because only Dr. Poletto had access to the report and both Reginelli and Leadbitter make clear that no one individual can assert peer review privilege,” Baylson concluded.
UPDATE
On Feb. 21 and shortly before trial was scheduled to begin, Clerk of Court George Wylesol noted that the case had been settled. Terms of the settlement were not disclosed.
“It having been reported that the issues between the parties in the above action has been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court, it is ordered that the above action is dismissed with prejudice, pursuant to agreement of counsel and without costs. The Clerk of Court shall mark this case closed,” Wylesol said.
The plaintiffs were represented by Derek Jokelson and David Jokelson of Jokelson Law Group, in Philadelphia.
The defendants were represented by Joseph G. Zack of Post & Post in Berwyn, E. Chandler Hosmer III and Jacqueline M. Reynolds of Marshall Dennehey Warner Coleman & Goggin in King of Prussia, Gary M. Samms and Katherine Robinson of Obermayer Rebmann Maxwell & Hippel, George L. Young Jr. of Kiernan Trebach, plus John P. Shusted and Nikki Mosco of German Gallagher & Murtaugh, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-01926
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com