Pollina v. Dishong
98 A.3d 613
| Pa. Super. Ct. | 2014Background
- Pollina and his corporation New Dimensions provided dental services to Pennsylvania Medical Assistance (MA) recipients; allegations arose after termination of an employee, Debra Dishong, who reported suspected overprescribing and improper billing to the Bureau of Program Integrity (BPI).
- BPI conducted an unannounced inspection, removed ~78 patient files, obtained invoices, and retained Dr. Arthur Kravitz as a dental consultant to review records and advise BPI.
- Kravitz reviewed charts, claims data and prescriptions, issued a critical opinion finding credible allegations of fraud (excessive controlled substances, substandard care, billing for unnecessary or misrepresented services).
- BPI suspended MA payments to Plaintiffs and referred the matter to the Medicaid Fraud Control Section (MFCS); the suspension caused severe business and emotional harm to Plaintiffs.
- MFCS later closed its file for insufficient evidence; BPI lifted the suspension. Plaintiffs sued Kravitz for professional negligence and intentional infliction of emotional distress based on his investigation and report to BPI.
- Trial court denied most of Kravitz’s preliminary objections, including his claims of immunity; Kravitz appealed claiming (1) peer-review/judicial/quasi-judicial immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Peer-review immunity under state law | Plaintiffs allege Kravitz negligently performed consultant work to BPI | Kravitz contended peer-review immunity (common-law and analogous protections) | Waived on appeal because not raised below; PRPA also conditions immunity on due care, so allegations of negligence defeat immunity |
| Judicial (absolute) immunity | Plaintiffs: claims arise from extra-judicial consultant work, not protected | Kravitz: his report was part of proceedings and preparation for judicial/quasi-judicial action, so absolute privilege applies | Rejected: work was not in the regular course of judicial proceedings nor pertinent/material to any pending/impending judicial proceeding |
| Quasi‑judicial immunity | Plaintiffs: BPI actions were investigative; BHA appeal was adjudicatory but claims target pre-hearing conduct | Kravitz: BPI/BHA process is part of a quasi‑judicial adjudicatory scheme entitling him to immunity | Rejected: BPI investigation and mandatory suspension are non‑adjudicatory/administrative; quasi‑judicial immunity might protect witness testimony but not an expert’s independent investigative negligence |
| Immunity for expert witness actions (retroactive protection) | Plaintiffs: claims target investigation/analysis, not protected testimony | Kravitz: his consultant role and any related testimony should be cloaked by immunity | Rejected: LLMD principle controls — immunity does not shield negligent formulation of expert opinions or investigative duties performed outside adjudicatory acts |
Key Cases Cited
- Feingold v. Hendrzak, 15 A.3d 937 (Pa. Super. 2011) (standard for reviewing preliminary objections and demurrers)
- Post v. Mendel, 507 A.2d 351 (Pa. 1986) (absolute judicial privilege applies to statements made in regular course of judicial proceedings and to preparatory statements pertinent to litigation)
- Petition of Dwyer, 406 A.2d 185 (Pa. 1979) (recognition of quasi-judicial immunity for administrative officials performing adjudicatory functions)
- Butz v. Economou, 438 U.S. 478 (U.S. 1978) (functional test for quasi‑judicial/prosecutorial immunity requires discretionary decisionmaking and procedural safeguards)
- LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186 (Pa. 1999) (expert witnesses are not immunized from liability for negligent formulation of their opinions)