Yocabet v. UPMC Presbyterian, 119 A.3d 1012

Plaintiff Michael Yocabet received a kidney from donor Christina Mecannic at UPMC; post-transplant he contracted Hepatitis C that the donor had, allegedly missed during donor screening.
The Pennsylvania Dept. of Health (on behalf of CMS) conducted an unannounced survey/investigation of UPMC’s transplant program; UPMC submitted documents and staff interviews to that CMS/DOH investigation.
Plaintiffs sought production from UPMC of materials submitted to the CMS/DOH investigation and documents/communications from a May 11, 2011 UPMC Board meeting about the incident.
UPMC asserted the Peer Review Protection Act privilege for materials given to DOH/CMS and asserted both the Peer Review Act and attorney-client privilege for materials from the May 11 board meeting.
The trial court ordered production of the CMS/DOH materials and ordered UPMC to produce the board-meeting materials; this appeal consolidated two orders: (1) March 11, 2014 (CMS/DOH materials) and (2) June 26, 2014 (board meeting materials).
The Superior Court affirmed the March 11 order (DOH/CMS materials discoverable) and reversed the June 26 order, remanding for in camera review to determine applicability of asserted privileges to board-meeting materials.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether materials UPMC submitted to the CMS/DOH (CMS investigation) are protected by the Peer Review Act privilege	Materials submitted to the DOH are confidential because they relate to internal review and thus fall within Peer Review Act protections	CMS/DOH materials are privileged as peer-review because the investigation examined clinical care and involved medical professionals	Held: Not privileged. DOH/CMS is not a "professional health care provider" under the Act; agency investigation is regulatory oversight, not peer review; documents submitted to DOH/CMS are discoverable.
Whether minutes, presentations, and documents from the May 11, 2011 UPMC Board meeting are protected by attorney-client privilege and/or Peer Review Act	Board materials and discussions were privileged: Board sought legal advice (attorney present) and Board action involved peer review of the transplant program	Plaintiffs argue the Board presentation by a non-lawyer (Concordia) was informational, not privileged; trial court found no attorney-client basis on record	Held: Attorney-client and peer review privileges potentially apply. Superior Court reversed compelled disclosure and remanded for creation of a privilege log and in camera review to determine whether particular board materials are protected.

Dodson v. DeLeo, 872 A.2d 1237 (Pa. Super. 2005) (describing Peer Review Act purpose to facilitate self-policing and limits on privilege for non-peer-review records)
Sanderson v. Frank S. Bryan, M.D., Ltd., 522 A.2d 1138 (Pa. Super. 1987) (explaining peer review organizations and rationale for confidentiality)
McClellan v. Health Maintenance Organization, 660 A.2d 97 (Pa. Super. 1995) (HMO not a "professional health care provider" under the Act where it functions as insurer/provider mix; privilege inapplicable)
T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa. Super. 2008) (privilege log and in camera review required where privilege is asserted but record insufficient)
In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204 (Pa. 2014) (standards for appellate review of asserted statutory and common-law privileges)
Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (attorney-client privilege protects two-way confidential communications for legal advice)
Red Vision Systems, Inc. v. National Real Estate Information Servs., L.P., 108 A.3d 54 (Pa. Super. 2015) (party invoking attorney-client privilege must initially proffer facts showing privilege applies)
Atkins v. Pottstown Memorial Med. Ctr., 634 A.2d 258 (Pa. Super. 1993) (incident reports and other original-source documents are not shielded merely because later reviewed by peer-review committee)