Lead Opinion
JUSTICE DONOHUE
The Peer Review Protection Act, 63 P.S. §§ 425.1 - 425.4 ("PRPA"), provides a narrow evidentiary privilege to protect the "proceedings and documents of a review committee" conducting peer review activities by professional health care providers in conformity with its provisions. In this medical malpractice action, Monongahela Valley Hospital ("MVH") contracted with UPMC Emergency Medicine, Inc. ("ERMI") to provide staffing and administrative services for its emergency room. Both MVH and ERMI claim that the PRPA's statutory evidentiary privilege protects from disclosure the performance file of Marcellus Boggs, M.D. ("Dr. Boggs") that had been prepared and maintained by Brenda Walther, M.D. ("Dr. Walther"), who served as the director of MVH's emergency department and was Dr. Boggs' supervisor.
In January 2011, Eleanor Reginelli was transported by ambulance to MVH's emergency department with what she reported at the time to be gastric discomfort. She was treated by Dr. Boggs. Mrs. Reginelli and her husband, Orlando Reginelli, allege that Dr. Boggs failed to diagnose an emergent, underlying heart problem and discharged her without proper treatment. Several days later, Mrs. Reginelli suffered a heart attack.
In 2012, the Reginellis filed an amended complaint containing four counts. Count I asserts a negligence claim against Dr. Boggs with respect to his treatment of Mrs. Reginelli. Count II is a claim for corporate negligence against MVH, alleging that it failed to hire appropriately trained staff, to oversee staff and to adopt adequate policies. Count III sets forth negligence claims against MVH and ERMI, contending that they are vicariously liable for the acts of their agents (ostensible and/or actual), employees and/or servants. Count IV asserts a claim for loss of consortium against all defendants. The defendants filed their respective answers and new matter. In the year that followed, the Reginellis deposed, inter alia, Dr. Boggs
On June 12, 2014, the Reginellis filed a motion to compel discovery directed to MVH, seeking production of Dr. Boggs' performance file. In its written reply to the motion to compel, MVH argued that "the requested items are created and used for the purpose of reviewing the services being rendered at [MVH's] emergency room and other departments and fall squarely under the protection of the [PRPA]." Reply to Plaintiffs' Motion to Compel, 6/19/2014, ¶ 14. In an accompanying brief in support, MVH further indicated that "it is difficult, if not impossible, to understand how these reports and files could not be seen as evaluating the quality and efficiency of services ordered or performed by health care providers." MVH's Brief in Opposition to Plaintiffs' Motion to Compel, 6/19/2014, at 6 (citing 63 P.S. § 425.2 ).
On August 29, 2014, the trial court granted the motion to compel, ordering that MVH produce Dr. Boggs' performance file to the Reginellis. In its order, the trial court stated that the "documentation shall remain confidential with Plaintiff's counsel, and shall not be copied or reproduced in any fashion, and in the event that [it] determines same is not relevant evidence in the case sub judice, same shall be returned to [MVH]." Order, 9/29/2014.
ERMI and Dr. Boggs
MVH filed a motion for reconsideration of August 29, 2014 order. Contrary to ERMI's claim that Dr. Walther created and maintained performance files "on behalf of ERMI," MVH posited that Dr. Walther's peer review work of the performance of emergency department physicians was performed "on behalf of both ERMI and MVH." Motion for Reconsidertion, 9/22/2014, ¶ 11. Similar to its initial arguments in opposition to the motion to compel, MVH argued that Dr. Walther's performance reviews were "for the evaluation of the quality and efficiency of health care services, ensuring compliance with laws and regulations and evaluating and improving the quality of health care rendered by emergency department physicians, as set forth in the PRPA." Id., ¶ 21. MVH also offered to produce Dr. Boggs' performance file to the trial court for in camera review "in order to satisfy this [h]onorable [c]ourt of the applicability of the PRPA and its prohibitions of disclosure of such information to that file at issue." Id., ¶ 22.
Before the trial court could rule on either ERMI's motion for protective order and MVH's motion for reconsideration, both entities appealed the trial court's August 29, 2014 order to the Superior Court. In an order dated September 26, 2014, the trial court granted MVH's motion to include Dr. Boggs' performance file in the judicial record under seal and to retain it under seal during the pendency of the action. In the trial court's written opinion pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, it first ruled that any evidentiary privilege was waived when Dr. Walther and ERMI shared the documents with MVH. Trial Court Opinion, 11/24/2014, at 2 ("The PRPA privilege, like other privileges, applies only to information which remains exclusive."). The trial court further ruled that even if Dr. Walther had kept the documents exclusively to herself, "she was not employed by [MVH], and was in fact an agent of ERMI, an entirely distinct entity," and, as a result, "it is untenable that [MVH] could claim a privilege for documents that it neither generated nor maintained." Id. at 2-3.
On appeal to the Superior Court,
In contrast to MVH's arguments, before the Superior Court ERMI continued to maintain that Dr. Walther's peer review work was "created and maintained solely by Dr. Walther on behalf of her employer." ERMI's Superior Court Reply Brief, 1585 WDA 2014, at 6. ERMI also repeated its assertion that Dr. Boggs' performance file "was not reviewed by and/or disseminated to [MVH's] Peer Review Committee." Id. at 16. Rather than arguing that it shared the evidentiary privilege with MVH, ERMI insisted that ERMI and Dr. Boggs, as "as Dr. Walther's employer and as the person whose 'performance file' is to be disclosed by the Trial Court's August 29, 2014, Order," are the entities "entitled to claim protection under the [PRPA]." Id. at 25.
The Superior Court affirmed the trial court's order requiring production of Dr. Boggs' performance file. Reginelli v. Boggs , 1584 WDA 2014,
ERMI and MVH appealed the Superior Court's rulings to this Court, each claiming an entitlement to the PRPA's evidentiary privilege with respect to Dr. Boggs' performance file.
Pennsylvania courts have recognized the laudable goal of the PRPA, which was enacted "to serve the legitimate purpose of maintaining high professional standards in the medical practice for the protection of patients and the general public" based upon the General Assembly's determination that "because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities." See, e.g. , McClellan v. Health Maint. Org. of Pa. ,
In interpreting its provisions, however, we may not ignore the unambiguous statutory language of the PRPA "under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). Such is particularly true in the present context, since "evidentiary privileges are not favored, as they operate in derogation of the search for truth." In re Thirty-Third Statewide Investigating Grand Jury ,
Before considering the arguments of the parties, we first set forth the provisions of the PRPA at issue here, beginning with the definition of "peer review:"
"Peer review" means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations. Peer review, as it applies to veterinarians, shall mean the procedure for evaluation by licensed doctors of veterinary medicine of the quality and efficiency of veterinary medicine ordered or performed by other doctors of veterinary medicine with the standards set by an association of doctors of veterinary medicine and with applicable laws, rules and regulations.
63 P.S. § 425.2.
The PRPA also defines the terms "professional health care providers" and "review organization" as follows:
"Professional health care provider" means
(1) individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:
(i) a physician;
(ii) a dentist;
(iii) a podiatrist;
(iv) a chiropractor;
(v) an optometrist;
(vi) a psychologist;
(vii) a pharmacist;
(viii) a registered or practical nurse;
(ix) a physical therapist;
(x) an administrator of a hospital, nursing or convalescent home or other health care facility; or
(xi) a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility; or
(2) individuals licensed to practice veterinary medicine under the laws of this Commonwealth.
* * *
"Review organization" means any committee engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a health insurance review committee, a hospital plan corporation review committee, a professional health service plan review committee, a dental review committee, a physicians' advisory committee, a veterinary review committee, a nursing advisory committee, any committee established pursuant to the medical assistance program, and any committee established by one or more State or local professional societies, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualificationsor activities of its medical staff or applicants for admission thereto. It shall also mean a committee of an association of professional health care providers reviewing the operation of hospitals, nursing homes, convalescent homes or other health care facilities.
Finally, the PRPA's evidentiary privilege is set forth in section 425.4.
The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or used in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.
63 P.S. § 425.4.
We begin our analysis by considering ERMI's assertion of its entitlement to claim the section 425.4 evidentiary privilege. ERMI's contends that the Superior Court, in ruling that it is "not an entity enumerated in the [PRPA] as being protected by peer review privilege," interpreted the PRPA too narrowly. Reginelli ,
Despite its protestations to the contrary, ERMI is not a "professional health care provider" under the PRPA's definition of that term. In its brief filed with this Court, ERMI describes itself as "a physician organization comprised of hundreds of individual emergency medicine physicians ... that exists specifically to provide emergency medical services." Brief of ERMI at 25. This is accurate as far as it goes. ERMI is a business entity that provides hospitals and other health care facilities, pursuant to contractual agreements, with staff involved with the provision of emergency medical services. While it is true that a plurality of this Court in McClellan identified the provision of health care services as one requirement for a professional health care provider, McClellan ,
It does not matter that the documents at issue here were generated and maintained by an employee of ERMI (Dr. Walther) during her review of the performance of another employee of ERMI (Dr. Boggs).
In the present case, ERMI does not qualify as a professional health care provider under the PRPA because it is not approved, licensed or otherwise regulated to practice or operate in the healthcare field in Pennsylvania, and it did not become one because one of its employees (Dr. Walther) conducted an evaluation of another of its employees (Dr. Boggs). Accordingly, we affirm the Superior Court's determination that ERMI was "not an entity enumerated in the [PRPA] as being protected by peer review privilege." Reginelli ,
We turn next to MVH's contention that it, unlike ERMI, is a professional health care provider and is thus entitled to claim the PRPA's evidentiary privilege. MVH argues that the Superior Court erred in concluding that the documents in question were not "generated nor maintained" by MVH because Dr. Walther was not employed by the hospital, since Dr. Walther is the medical director of its emergency department and a member of its medical staff. MVH's Brief at 14. MVH contends that a "performance review by one member of a hospital's medical staff of the performance of another member of the hospital's medical staff is precisely the kind of review" that should qualify for protection under the PRPA.
We cannot agree with these arguments. As discussed above, the PRPA's evidentiary privilege is reserved only for the "proceedings and documents of a review committee [.] 63 P.S. § 425.4 (emphasis added). MVH does not contend that Dr. Walther was a member of the hospital's peer review committee, and the certified record contains no evidence to support such a finding. Instead, MVH argues that Dr. Walther acted, ostensibly, as a "separate" peer review committee for the ERMI-supplied emergency department physicians. MVH's Brief at 13. Although Dr. Walther is an individual rather than a committee, MVH contends that this is a distinction without a difference, as the second sentence of the definition of "review organization" refers to any "hospital board, committee or individual reviewing
Contrary to MVH's contention, the PRPA does not use the terms "committee" and "individual" interchangeably.
For these reasons, while it is possible that Dr. Walther, as an individual, may qualify as a "review organization" under the second sentence of the PRPA's definition of that term,
Finally, we must address the argument presented by both ERMI and MVH that the lower courts erred in refusing to apply PRPA's evidentiary privilege because a hospital's peer review committee may conduct protected peer review activities through an outside entity pursuant to a contract. ERMI insists that the Superior Court ignored "the clear evidence that the information at issue was generated on behalf of [MVH], at the request of [MVH], pursuant to ERMI's contract with [MVH]. " ERMI's Brief at 32 (emphasis in original). MVH similarly argues, "Here, [MVH], unquestionably a 'professional health care provider,' retained an external organization, ERMI, to staff its Emergency Department and to provide, among other services, evaluation of the qualifications and performance of the Emergency Department physicians practicing within its walls." MVH's Brief at 18-19. According to MVH, to the extent that a "professional health care provider" must initiate the peer review process, "that requirement was satisfied when [MVH] entered into the contract with ERMI that included peer review among the services to be provided." Id. at 19. As such, both ERMI and MVH contend that no statutory provision in the PRPA precludes a hospital (like MVH) from entering into a contract with a staffing and administrative services entity (like ERMI) to conduct peer review services for the hospital's peer review committee.
Based upon our review of the certified record, we conclude that MVH and ERMI failed to preserve this issue for appeal to this Court. See Pa.R.A.P. 302(a) (providing for waiver of issues not first raised in lower court). For reason of either strategy or oversight, neither MVH nor ERMI included the contract between them in the record in the trial court proceedings. With respect to MVH, in neither its initial response to the Reginellis' discovery request for production of Dr. Boggs' performance
Likewise, neither MVH nor ERMI raised the issue in their initial briefs in the Superior Court. While MVH referenced that the two entities were contractually bound together "to provide medical services," it did not argue that a specific provision of the contract between them obligated ERMI (by and through Dr. Walther) to perform peer review services on MVH's behalf.
Even if the issue had been preserved for appeal, we must conclude that it lacks merit.
For these reasons, the order of the Superior Court is hereby affirmed.
Justices Baer, Dougherty and Mundy join the opinion.
Justice Wecht files a dissenting opinion in which Chief Justice Saylor and Justice Todd join.
Notes
The American Medical Services Association and the Pennsylvania Medical Society have filed amicus curiae briefs on behalf of ERMI, Dr. Boggs and MVH. The Pennsylvania Association for Justice has filed an amicus brief on behalf of the Reginellis.
Dr. Walther's deposition testimony appears in the original record as Exhibit B to Appellees' Motion for Sanctions and to Recommence the Depositions of Marcellus Boggs and Brenda Walther.
The Reginellis did not seek to compel Dr. Boggs or ERMI to produce those records and/or information.
As their positions are the same, ERMI and Dr. Boggs will be referred to collectively as "ERMI."
The Superior Court granted the appeal as a collateral order pursuant to Rule 313 of the Pennsylvania Rules of Civil Procedure. None of the parties have appealed this ruling.
With respect to MVH, we granted review of the following issues:
1. Whether the Superior Court erred by holding an outside medical provider's peer review proceedings regarding its employees who staff a hospital's Emergency Department under a contract with that hospital are not entitled to protection from disclosure under the [PRPA]?
2. Whether the sharing of peer review records by a third-party medical provider that operates a hospital's Emergency Department with the administration of that hospital constitutes a waiver of peer review protection as to those records?
3. Whether a hospital that contracts with a third-party medical provider to operate the hospital's Emergency Department may claim protection under the [PRPA] for records of peer review proceedings conducted by the medical provider regarding its employees who staff the hospital's Emergency Department?
Reginelli v. Boggs ,
1. Whether the Superior Court's holding directly conflicts with previous Superior Court holdings that an outside entity can be appointed or retained by a hospital to conduct peer review and that the review is entitled to protection under the [PRPA]?
2. Whether the Superior Court's holding directly conflicts with the intent of the [PRPA] and this Court's holdings that the provision of peer review materials to the hospital does not constitute a waiver of the [PRPA]?
Reginelli v. Boggs ,
The PRPA was enacted in 1974 and last amended in relevant part in 1978 (references to veterinary medicine were added in 1996). Entities similar to ERMI existed at or around this time. See Com., Dep't of Pub. Welfare v. Forbes Health Sys. ,
At a fundamental level, ERMI misconstrues the scope of the evidentiary privilege created by the PRPA. Contrary to ERMI's contention, the privilege does not apply anytime that an activity consistent with the PRPA's definition of "peer review" occurs. ERMI's Brief at 23-24. Instead, the PRPA strictly limits the evidentiary privilege to the "proceedings and records of a review committee." 63 P.S. § 425.4. A review committee is defined in the PRPA as "any committee engaged in peer review[.]" 63 P.S. § 425.2. Peer review is "a procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers[.]"
For this reason, we disapprove of Troescher and its Superior Court progeny (e.g., Piroli v. Lodico,
Professional "qualifications" would include, for instance, a physician's continuing maintenance of his or her board certifications, and "activities" could include clinical research initiatives, continuing education, service on professional committees or organizations and, more broadly speaking, other qualifications deemed necessary by the hospital. Credentials review permits a hospital to retain, and then maintain, a medical staff of quality professionals.
The General Assembly defined the more expansive term "review organization" for a purpose unrelated to the evidentiary privilege, as section 425.3 provides for various criminal and civil immunities available to persons providing information to a "review organization" (with limited exceptions), and to individuals serving as members of a "review organization." 63 Pa.C.S. § 425.3.
While the title to section 425.4 contains a reference to "review organizations," section 1924 of the Statutory Construction Act provides that titles to statutory sections "shall not be considered to control." 1 Pa.C.S. § 1924. Although titles to statutory sections may in some circumstances be used to aid in the construction of ambiguous statutory language,
For this reason, we must also disapprove of Superior Court decisions to the extent that they hold that credentialing review is entitled to protection from disclosure under the PRPA's evidentiary privilege. See, e.g., Troescher ,
Whether Dr. Walther performed credentialing work for MVH is not entirely clear from the certified record. At her deposition, she testified that while ERMI recommended physicians to work in the emergency room, it was entirely up to MVH to do the credentialing work to decide whether to accept them as members of the medical staff. N.T., 2/5/2014, at 43-44 ("Q. So the control of the hospital is to either credential them or not? A. "Correct."). On the other hand, with respect to "recredentialing" someone for continuing membership on the medical staff, Dr. Walther described this process as a "joint decision between the hospital and ERMI." Id. at 67-69.
MVH raised this issue for the first time in its reply brief in the Superior Court, arguing that the contract between ERMI and MVH provided for ERMI to conduct peer review functions on its behalf for the emergency room physicians placed there by ERMI. MVH's Superior Court Reply Brief, 1584 WDA 2014, at 1-6. It did so, however, only after the Reginellis attempted, unsuccessfully, to include the ERMI-MVH contract in the certified record before the Superior Court by filing a supplemental reproduced record. See Commonwealth v. Bracalielly ,
As this Court has ruled, the opportunity for, and the extent of, a reply brief is limited, as the Pennsylvania Rules of Appellate Procedure make clear that an "appellant may file a brief in reply to matters raised by appellee's brief not previously raised in appellant's brief." Pa.R.A.P. 2113(a). Therefore, an appellant is prohibited from raising new issues in a reply brief. Commonwealth v. Fahy ,
Because it has been waived and no support in the certified record exists to support it, the issue is not presently before us as to whether a hospital may claim the PRPA's evidentiary privilege after entering into a contract with a staffing and administrative services entity to conduct peer review services for use by a hospital's peer review committee. We note that in Yocabet , the Superior Court suggested that, consistent with the PRPA's privilege provisions, a professional health care provider could retain outside entities composed of professional health care providers to perform peer review services. Yocabet ,
In connection with ERMI's motion for a protective order, Dr. Walther also submitted an affidavit in which she represented that "I have no input or firsthand knowledge regarding the contract entered into by my employer, [ERMI], and [MVH]." Motion for Protective Order, 9/22/2014, Ex. D.
Dissenting Opinion
To ensure frank, probing assessments of physicians by their peers-those most qualified to conduct such reviews-our General Assembly enacted the Peer Review Protection Act ("the PRPA" or "the Act").
At issue in this case
[O]ur object is to ascertain and effectuate the intention of the General Assembly, giving effect, if possible, to all provisions of the statute under review. Generally, the best indication of legislative intent is the statute's plain language. Further, the plain language of each section of a statute must be read in conjunction with [the others], construed with reference to the entire statute. We presume that the General Assembly does not intend a result that is absurd, impossible of execution, or unreasonable, and that the General Assembly intends the entire statute to be effective and certain.
When words of a statute are ... ambiguous, a reviewing court looks to other principles of statutory construction, among them: the occasion and necessity for the statute; the circumstances under which the statute was enacted; the mischief to be remedied; the object to be attained; [and] the consequences of a particular interpretation....
Bowling v. Office of Open Records ,
Generally, the party invoking an evidentiary privilege bears the burden of showing that the privilege applies. Once the party has done so, the burden shifts to the adverse party to establish that an exception applies or that the privilege has been waived. Yocabet v. UPMC Presbyterian ,
The learned Majority aptly explains certain principles governing the interpretation and application of evidentiary privileges in general:
"[E]videntiary privileges are not favored, as they operate in derogation of the search for truth." In re Thirty-Third Statewide Investigating Grand Jury ,, 624 Pa. 361 , 215 (2014). As we have stated, "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Commonwealth v. Stewart , 86 A.3d 204 , 547 Pa. 277 , 197 (1997) (quoting Hutchison v. Luddy , 690 A.2d 195 , 414 Pa.Super. 138 , 908 (1992) ). 606 A.2d 905
Maj. Op. at ----. Thus, an evidentiary privilege may contravene truth-seeking only when it serves "a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth."
But our view of evidentiary privileges becomes less restrictive when the General Assembly has created the privilege. The Majority elaborates on statutory privileges as follows:
Statutory privileges reflect public policy determinations by the General Assembly, and "where the legislature has considered the interests at stake and has granted protection to certain relationships or categories of information, the courts may not abrogate that protection on the basis of their own perception of public policy unless a clear basis for doing so exists in a statute, the common law, or constitutional principles." McLaughlin v. Garden Spot Vill. ,, 953 (Pa. Super. 2016) (quoting V.B.T. v. Family Servs. of W. Pa. , 144 A.3d 950 , 1335 (Pa. Super. 1998), aff'd , 705 A.2d 1325 , 556 Pa. 430 (1999) (per curiam ) ). 728 A.2d 953
Maj. Op. at ---- - ----.
In my view, it is precisely because the General Assembly's judgment is presumptively embodied in the specific statutory provisions that, where the statute provides for certain specific exceptions to the privilege, we generally may not manufacture additional exceptions to that privilege by judicial fiat. Thus, in Castellani v. Scranton Times, L.P. ,
The peer review privilege that Appellants invoke here is defined broadly:
§ 425.4 Confidentiality of review organization's records
The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, [t]hat information, documents or records otherwise available from original sources are not to be construed as immune from discovery or used in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testified before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.
63 P.S. § 425.4.
The Act defines "peer review" as follows:
"Peer review" means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations....
63 P.S. § 425.2.
The Reginellis seek discovery of the performance file for Marcellus Boggs, M.D. Brenda Walther, M.D., prepared the file on behalf of ERMI, her employer, and furnished it to MVH. The Majority holds that the privilege applies only if Dr. Walther acted as a "review organization" in preparing the performance file. The Act defines that term broadly as well:
"Review organizations" means [a]ny committee engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a health insurance review committee, a hospital plan corporation review committee, a professional health service plan review committee, ... a physicians' advisory committee, ... a nursing advisory committee, any committee established pursuant to the medical assistance program, and any committee established by one or more State or local professional societies, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto. It shall also mean a committee of an association of professional health care providers reviewing the operation of hospitals, nursing homes, convalescent homes or other health care facilities.
The Majority's analysis builds upon the premise that, the language of the Act being plain and unambiguous, we must follow it where it leads, no matter how unintuitive or even counterintuitive the result. In finding the Act unambiguous in all relevant particulars, the Majority's approach falls into tension with the contrary conclusion of several members of this Court in McClellan v. Health Maintenance Organization of Pennsylvania ,
The Majority rejects MVH's contention that Dr. Walther's preparation and maintenance of a performance file for Dr. Boggs constituted "peer review" in the first instance, as defined by Section 425.2. This alone would suffice to nullify the privilege, and the Majority need go no farther. Indeed, the Majority rejects the proposition that any individual review of another doctor's performance can ever qualify as peer review in the relevant sense. In effect, the only "peer" that can qualify for the privilege is, in fact, a "review committee," i.e. , a group of peers.
The legislative intent underlying the PRPA is not controversial:
Peer review is the common method for exercising self[-]regulatory competence and evaluating physicians for privileges. The purpose of this privilege system is to improve the quality of health care, and reflects a widespread belief that the medical profession is best qualified to police its own. Thus, it is beyond question that peer review committees play a critical role in the effort to maintain high professional standards in the medical practice.
Cooper v. Del. Valley Med. Ctr. ,
Dr. Walther performed peer review under the Act.
Appellants argue that, in defining a "review organization" to include, inter alia ,
Appellants contend that the Superior Court "failed to appreciate" that Dr. Walther was the Department's medical director, and thus was responsible for reviewing the performance of the physicians in her department. Brief for MVH at 14; see Walther Dep., 2/5/2014, at 46 (acting as "medical director"), 63-64 (explaining her responsibility for peer review).
The Reginellis only briefly address whether Dr. Walther acted as a review organization under the Act. In the paragraph they dedicate to the question, they note little more than that the Act is "replete with references to hospital committees," and argue that, "[o]bviously, the legislature and this Court are looking to protect the collaborative work of committees." Brief for the Reginellis at 18 (emphasis omitted).
The statutory definition of a review organization effectively consists of three discrete parts, two of which are relevant to the question presented, and only one of which refers to an "individual." In its lengthy first sentence, the statute identifies a series of "committees" that are "engag[ed] in peer review ... to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care." 63 P.S. § 425.2. In its second sentence, the statute identifies a second category of "review organization": "[A]ny hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto."
The Majority finds no room in the second category to recognize an individual as conducting peer review, focusing upon the fact that the repeated usage of the term "committee" in the first category of review
There is some appeal to this reading. However, to exclude a given physician's patient care from "professional activities" is at odds with a common understanding of that term in its statutory context. No "activity" is more tied to a health care provider's profession than the delivery of care. Moreover, if "professional qualifications and activities" refer, together, only to "credentials," then we encounter a different surplusage, given that "qualifications" and "credentials" effectively are synonyms. This calls into question how "activities" separately contribute to the "credentialing" process. Compare "qualification ," AMERICAN HERITAGE COLLEGE DICTIONARY (3d ed. 1993) ("1. The act of qualifying or the condition of being qualified. 2. A quality, an ability, or an accomplishment that makes a person suitable for a particular position or task. 3. A condition or circumstance that must be met or complied with.") with "credentials ,"
The bright line that the Majority seeks to draw between a review organization and a review committee cannot be sustained by the statutory text read holistically. In effect, the distinction breaks down in Section 425.4, which is the section that confers confidentiality. That section, entitled "confidentiality of review organization's records," refers in its text only to "review committees." If in all PRPA uses we are to understand "organization" as distinct and more broadly inclusive than "committee," then the second definition of review organization, at least to the extent it pertains to individuals and hospital boards, enjoys no confidentiality at all. The Majority seems to allow that individuals may invoke the confidentiality provision of Section 425.4, but only in connection with the "credentialing" process. It so holds because the first sentence of the definition of "review organization," which expressly cites "peer review," refers only to committees in that connection. But that is true, as well, of Section 425.4. Extending the Majority's own reasoning with respect to Section 425.2 to Section 425.4, the privilege described cannot apply to an individual , regardless of the nature of the review in question-whether peer review or credentialing. In assessing whether the statute is ambiguous, we must view the text in its full context. Viewing the statute as a whole, I find that the meanings of "review organization" and "review committee" ultimately confound the bright-line distinction the Majority attempts to draw.
The meaning of these terms being less than clear, the Court should turn to consider "[t]he occasion and necessity for the statute," "[t]he mischief to be remedied," "[t]he object to be attained," and "[t]he consequences of a particular interpretation."
I am reluctant to impute to the General Assembly the belief that effective peer review, and the objects it seeks to advance, can be achieved only when engaged in by two or more qualified professionals, so as to constitute a "committee." Under this account, no one supervisor can assess a given physician's performance negatively without risking exposure as the source of criticism, but if he or she does so with a colleague, and calls the twosome a "committee," precisely the same assessment is privileged.
Dr. Walther's performance file for Dr. Boggs contains charts documenting Dr. Boggs' management of dozens of cases other than the one that underlies this litigation. Dr. Walther pulled these charts to assess the quality of care provided by Dr. Boggs. Dr. Walther plainly is a professional peer to whom fell the responsibility to review the quality of services performed by Dr. Boggs, a physician under Dr. Walther's oversight, for patients in the department Dr. Walther managed. I believe that this was a species of peer review performed by an individual as provided by the second sentence of Section 425.2's definition of "review organization," and that applying the privilege would best serve the General Assembly's intent.
ERMI is a professional health care provider.
The Superior Court ruled that "ERMI, as an independent contractor staffing the Hospital's emergency room, is not an entity
Hospital reliance upon contractors to operate departments
The Act furnishes the following definition:
"Professional health care provider" means:
(1) individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:
(i) a physician;
(ii) a dentist;
(iii) a podiatrist;
(iv) a chiropractor;
(v) an optometrist;
(vi) a psychologist;
(vii) a pharmacist;
(viii) a registered or practical nurse;
(ix) a physical therapist;
(x) an administrator of a hospital, nursing or convalescent home or other health care facility; or
(xi) a corporation or other organization operating a hospital, nursing home or other health care facility ....
63 P.S. § 425.2. Notably, the definitional section of the PRPA provides no definition that informs its uses of "other health care facility."
Although no opinion in McClellan commanded a Majority, the case offers some insight. In McClellan , the Court considered whether the peer review privilege extended to an "individual practice association" ("IPA")-model HMO. In her OISA, Justice Newman (joined by Justice Cappy, with Justice Nix concurring only in the
First, the OISA observed that the Act's definition of professional health care provider was broad enough that the Court might or might not read it to exclude IPA-model HMOs. Thus, as an ambiguous statute, review pursuant to our principles of statutory construction was warranted. Turning to the Act, the OISA addressed the "including, but not limited to" language in the definition of professional health care provider in tandem with the enumerated list that followed it, and explained as follows:
It is widely accepted that general expressions such as "including, but not limited to" that precede a specific list of included items should not be construed in their widest context, but apply only to persons or things of the same general kind or class as those specifically mentioned in the list of examples. Under our statutory construction doctrine ejusdem generis ("of the same kind or class"), where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. Where the opposite sequence is found, i.e. , specific words following general ones, the U.S. Supreme Court and the courts from several other jurisdictions recognize that the doctrine is equally applicable, and restricts application of the general term to things that are similar to those enumerated.
The OISA noted that, of eleven enumerated terms in the definition, nine specify individual health care workers, with the remaining two comprising "an administrator, and a corporation or other organization operating or administering," inter alia , a hospital or other health care facility. McClellan ,
In his OISR, Justice Zappala (joined by Justice Castille) rejected such a restrictive account, because HMOs are "held to have the same duties as hospitals to select and retain competent physicians." McClellan ,
The OISA, read in tandem with Justice Zappala's OISR, strongly suggests a common view among a majority of the then-sitting Justices. The OISA suggested a relatively expansive view of what constitutes the administration or operation of a health care facility, implying that it would be satisfied on that point if the entity in question employed its own physicians who practiced in facilities that were controlled by that entity. Justice Zappala, for his part, would have deemed the HMO a professional health care provider under the Act, despite its lack of staff or facility, simply because it was of the same general nature or class as those specifically enumerated under the Act. In this case, ERMI undisputedly maintained a staff of professional health care providers sufficient to administer and operate MVH's emergency department.
Appellants argue that it is "nonsensical" to find that the physicians and other individuals who comprise ERMI and define its commercial activities fall within the rubric of "professional health care provider" under item (i) of the definition, while ERMI itself lies outside it. Brief for ERMI at 29. They also argue that item (xi) includes corporations and organizations operating "health care facilities" as professional health care providers, and that ERMI, in staffing and operating the emergency department, qualifies. They further note that the lower courts' determinations that ERMI is a "business," and, as such, not a "health care provider" under the Act is belied by the Reginellis' own pleadings, which expressly asserted a "professional liability claim" against ERMI. See Plaintiffs' Amended Complaint ¶ 6.
To exclude ERMI, Appellants conclude, would confound the PRPA's intent by "ignor[ing] the reality of modern health care, where outside physician practice groups routinely staff and are integral to the operation of hospitals." Brief for Boggs and ERMI at 26 (emphasis omitted); see Brief for MVH at 17 ("[T]he Superior Court's decision to withhold peer review protection from reviews conducted by hospital staff members simply because they are employed by an independent physician group or similar independent contractor leads to an absurd and unworkable result."). They further argue that, even if we find no quarter for ERMI in items (i) or (xi), they nonetheless must be protected because the definition's employment of the "including, but not limited to" clause signals the legislature's intent that a professional health care provider not be limited to the specific terms of that list. See Brief for MVH at 20.
Conversely, the Reginellis contend that ERMI "merely employs health care providers," providing "physicians, non-physicians, legal services, billing/coding services and facility planning services to contracting hospitals." Brief for the Reginellis at 15. They note that the definition requires an individual or entity that is "approved,
The Majority agrees, finding that "no principled reading" of the definition enables ERMI to overcome the qualification that a professional health care provider be "approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth." Maj. Op. at ----; see 63 P.S. § 425.2.
As noted, the statutory definition encompasses, inter alia , "a corporation or other organization operating a hospital, nursing home or other health care facility." 63 P.S. § 425.2. Furthermore, the list of eleven categories of individuals and entities who may be considered professional health care providers under the Act is expanded by the phrase "including, but not limited to," which invites the principled expansion of the list to include other individuals and organizations that share the relevant characteristics with those enumerated. See Dechert ,
"Hospital" and "health care facility" are used separately in item (xi) of the definition of "professional health care facility." Thus, the Court must assume that the legislature understood a "health care facility" to be broader than, if not simply distinct from, a "hospital." See 1 Pa.C.S. § 1921(a) (directing that we must "give effect to all [of a statute's] provisions"). Neither the lower courts nor the Reginellis specifically contend that the emergency department does not qualify as a constituent part of MVH or as a health care facility in its own right, and I have difficulty conceiving how any such contention could be true under a common understanding of those terms. Consequently, in reviewing item (xi), our focus should turn to the meaning of "a corporation or other organization" and what it means to "operate" a facility. ERMI plainly is a corporation; indeed, that is an essential premise to the Reginellis' argument. See Brief for the Reginellis at 16 ("ERMI ... is merely a business entity."). Furthermore, by any fair definition, ERMI "operates" the department.
With respect to the "approved, licensed or otherwise regulated to practice or operate under the laws of the Commonwealth" qualification, the Majority relies for all practical purposes upon its determination that ERMI was neither licensed nor regulated to practice or operate in the health care field. Its plain language account is incomplete for failing to account for the word "approved" in a way that describes something other than the state of being "licensed" or "regulated." Maj. Op. at ----. The Majority's account also leaves little room for any unenumerated entity that might qualify under the "including, but not limited to" expansion of the enumerated class, rendering it a null set. Like several justices in McClellan , I believe that these gaps at least create ambiguity regarding whether ERMI qualifies as a "professional health care provider" under the Act.
Setting aside licensure for present purposes, and further setting aside "regulated" without conceding that it does not apply to a corporation whose agents operate a regulated health care facility, "approved" nonetheless must be given meaning and effect that is not encompassed in the terms "licensed" or "regulated." Thus, the Majority's apparent conclusion that ERMI is not a "corporation ... operating a ... health care facility" is suspect, given
The question becomes one of approval or, perhaps, regulation. The Department, its staff providers, and MVH writ large are subject to myriad regulations, and MVH operates only with the approval of the Commonwealth and its agencies. Cf. 35 P.S. § 448.806(a) ("No person shall maintain or operate or hold itself out to be a health care facility without first having obtained a license therefor issued by the department."). Regardless of whom MVH hires to operate its facility, it has a non-delegable duty to ensure that the care administered within its four walls meets applicable standards, which includes the "duty to oversee all persons who practice medicine within its walls as to patient care." See Thompson v. Nason Hosp. ,
We have noted, and the Majority does not dispute, that the Act aims to encourage full and frank assessments of health care providers by other health care providers who are best qualified for that task. Whether the licensure, approval, or regulation requirement that undisputedly applies to MVH and its emergency department applies by extension to the contractor through its promise to ensure that the hospital complies with all state requirements seems beside the point: to exclude ERMI on the basis that it is not a professional health care provider under the expansive statutory definition would create a circumstance in which application of the peer review privilege to proceedings associated with a hospital department depends solely upon whether the hospital operates its own department or contracts with an outside corporate entity to do so. Put simply, if MVH, as the employer of the physicians staffing the Emergency Department, conducts peer review activities, then the information generated for those purposes is protected. However, if ERMI, as the employer of the same physicians staffing the same department at the same hospital, conducts the same peer review activities, the Act offers no protection for information of precisely the same nature.
This Court should not adopt an unreasonable or impractical interpretation that so clearly frustrates legislative intent. See 1 Pa.C.S. § 1922 (directing us to assume that the General Assembly "intends the entire statute to be effective and certain," and that it "does not intend a result that is absurd, impossible of execution or unreasonable"). Thus, I would hold that ERMI is an operator of a health care facility by virtue of having taken sole responsibility for operating the Department. The Majority's contrary interpretation guts the privilege, given that such contractual staffing and administrative agreements are commonplace.
Sharing the performance file with MVH did not waive the privilege.
Also addressed in the courts below, and subject to our allowance of appeal, is whether, assuming the peer review privilege applied to Dr. Walther and ERMI, such privilege was waived when Dr. Walther provided the file to MVH. While the Majority touches upon this question, its conclusions that the file did not constitute peer review and that ERMI was not a professional health care provider render the issue moot, and the question only appears as a corollary to the Majority's primarily waiver-driven rejection of the proposition
In ruling in the alternative that Dr. Walther compromised any applicable privilege by sharing the file, the Superior Court attached great consequence to one sentence fragment drawn from Dr. Boggs and ERMI's joint Reply Brief in that court to the effect that the performance file was "created and maintained solely by Dr. Walther on behalf of her employer." Super. Ct. Mem. at 6 (quoting Super. Ct. Reply Brief for Boggs and ERMI at 6). Based upon that alone, the Superior Court concluded that MVH "cannot claim that the file is [MVH's] privileged peer review, since, as the trial court noted, 'it is untenable that [MVH] could claim a privilege for documents that it neither generated nor maintained.' "
Although the Superior Court provided no further information, the trial court's assertion in this regard was based upon the proposition that "[t]he PRPA privilege, like other privileges, applies only to information which remains exclusive." Trial Ct. Op., 11/25/2014, at 2 (citing Dodson v. DeLeo ,
If MVH had Dr. Boggs' performance file in its possession, as it plainly did, it was provided to it by Dr. Walther or another agent of ERMI. Furthermore, it "maintained" that file at least to the extent that it never threw it away and to the extent that it knew where to find it when asked. This contradicts any suggestion that the file was never intended to serve MVH's benefit, or was not sought by MVH as part and parcel of its business relationship with ERMI. MVH's possession and actual production of the performance file necessarily provides support for Dr. Walther's account regarding for whose benefit she reviewed Dr. Boggs and with whom she shared the consequent performance file.
Appellants argue that the practical consequences of affirming the lower courts' rulings are untenable:
It is extremely common, and should be encouraged, for health care entities to work together to meet the public's needs, while sharing information to maintain and improve health care quality. It is logical for an outside entity, like ERMI, to review its own employee who is being supplied to staff a hospital, and for the information to be shared with that hospital, which of course has an interest in quality control regarding the members of its medical staff. To discourage the sharing of valuable information thwarts the goals of the PRPA [and] conflicts with legislative intent ....
Brief for Boggs and ERMI at 38-39.
The lower courts' apparent reliance on "exclusivity" is at odds with the Act's broad definition of "review organization," which clearly anticipates possession of such records by an array of individuals and groups concerned with evaluating and improving the quality of health care, reducing adverse events, and controlling costs. Among the entities named therein are a hospital, health insurance tissue or review committee, "a hospital plan corporation review committee," "any committee established pursuant to the medical assistance program, and any committee established by one or more State or local professional societies." 63 P.S. § 425.2. Necessarily, these are third parties relative to those who delivered the care subject to review. Nothing in Section 425.2 suggests that the sharing or dual possession of a single peer review record necessarily vitiates an otherwise valid privilege. Indeed, the scope of the Act itself is difficult to understand except as authorizing the simultaneous possession of peer review materials by multiple individuals and entities. Taking the Reginellis' argument to its logical conclusion, any professional health care provider that shared its records with any of these bodies, or among two or more enumerated entities or groups, would waive the peer review privilege. There is no way to reconcile this with the legislature's manifest intent.
In light of the broad intent reflected by the Act, I believe that the privilege here at issue was intended to capture an entire sector of conduct performed by a swath of individuals, committees, and government bodies on behalf of providers, both human and institutional, to ensure the quality of health care and the accountability of providers. As noted, supra , where the legislature creates a statutory privilege and specifies exceptions to that privilege, we must consider that as evidence that it intended not to allow for other unspecified exceptions. See Commonwealth, Dep't of Transp. v. Taylor ,
Like the Shield Law in Castellani , the PRPA delineates exceptions.
A hospital must monitor the performance of its credentialed physicians, whether they are employed directly by the hospital or by a contractor, not least because plaintiffs in claims involving alleged medical malpractice are likely to claim corporate negligence against that entity when they believe that the hospital has violated its non-delegable duty to ensure the quality of care-as the Reginellis have alleged in this case. See Thompson , supra . It also seems obvious that the administrator of a given hospital department-whether employed by the hospital or an entity retained by the hospital to assume such duties-is best positioned to review the physicians who staff that department.
For all practical purposes, MVH, ERMI, and Drs. Walther and Boggs comprise a collective responsible for ensuring that the care delivered in the Department, and specifically the care provided by Dr. Boggs, and more specifically still the care provided by Dr. Boggs to Mrs. Reginelli, satisfied the standard of care. The well-established statutory mechanism for doing so is professional peer review, and the legislature clearly has found that confidentiality is critical to such review. Nothing in the PRPA suggests that sharing review materials among a chain of vertically integrated providers who collectively are responsible for a given health care facility should result in waiver of that confidentiality. See Armstrong v. Dwyer ,
Chief Justice Saylor and Justice Todd join this dissenting opinion.
See Act of July 20, 1974, P.L. 564, No. 193, § 1, as amended, 63 P.S. §§ 425.1, et seq.
For purposes of my discussion, I incorporate by reference the Majority's account of the factual and procedural background that led to this appeal. See Maj. Op. at ---- - ----.
The Majority allows that an individual physician qualifies as a "review organization" to the extent she serves as an "individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto." 63 P.S. § 425.2. However, as discussed below, the Majority maintains that any such review of a physician's "qualifications or activities" necessarily goes only to credentialing, which is not at issue in this case. See Maj. Op. at ---- - ----.
The Reginellis and the Majority do not appear to dispute that Dr. Walther and MVH are professional health care providers.
To similar effect, the American Medical Association ("AMA") and Pennsylvania Medical Society ("PMS"), as amici curiae , observe that the Superior Court "fail[ed] to recognize the cooperative nature" of the arrangement among the Appellants. Amici Curiae Brief for AMA/PMS at 18. "Dr. Walther may have been [an] ERMI employee, but she was also a credentialed member of [MVH's] staff and effectively the Department Chairman. At bottom, [MVH] was sharing with itself."
The Reginellis have submitted materially similar, but nonetheless distinct, responsive briefs to the separate briefs of MVH and UPMC. All citations to the Reginellis' briefing in this case refer to their MVH brief, at 20 and 21 WAP 2016.
See 1 Pa.C.S. § 1924 ("The title ... of a statute may be considered in the construction thereof.").
This same stringent reading informs the Majority's reliance upon the fact that, while MVH was given and maintained possession of Dr. Boggs' performance file, that file did not specifically reside with MVH's "peer review committee." Maj. Op. at ----.
The Majority understates the degree of ERMI's control of MVH's emergency room. See Maj. Op. at ---- - ---- (observing that MVH contracted with ERMI "to provide staffing and administrative services for its emergency room"). The Reginellis themselves provide a more expansive account of ERMI's role at MVH. See Brief for the Reginellis at 15 (noting that ERMI provides "physicians, non-physicians, legal services, billing/code services and facility planning services to contracting hospitals"). Furthermore, Dr. Walther testified that she functioned as the Emergency Department's "medical director." See Walther Dep., 2/5/2014, at 46 (acting as "medical director"). There is no dispute on this latter point.
See "operate ," American Heritage College Dictionary (3d ed. 1993) ("tr. 1. To control the function of; run. 2. To conduct the affairs of; manage.").
See, e.g., Walther Dep., 2/5/2014, at 64-66 (Dr. Walther testifies that she performed various peer review activities "on behalf of [MVH] and ERMI," and that, if an issue emerges during peer review, she forwards it to MVH's peer review committee and to her superior at ERMI); cf. id. at 67 (indicating that retention decisions, where there's "a care issue involved," are "joint" decisions of MVH and ERMI); Motion for Reconsideration of the Court's August 29, 2014 Order of Court and for In Camera Review, 9/22/2014, at 4 ("Dr. Walther is regularly involved in peer review for all the [emergency department] physicians and the quality assurance process ... on behalf of both ERMI and MVH."), 5 ("[F]or peer review, [Dr. Walther] reviews records of patient files when an issue is raised or a review is requested by staff or administration of MVH or ERMI"); N.T., 6/9/2014, at 71-72 (counsel for MVH, arguing in opposition to the Motion to Compel: "Dr. Walther, as part of our-as our supervisor, if you will, of the emergency department, part of our contractual relationship with ERMI , ... it's all part of that package that we do core measures and these other things .... [E]verything [the Reginellis] are asking for is an ongoing, everyday activity that the hospital does and is required to do in order to stay on top of this stuff." (emphasis added) ).
See 63 P.S. § 425.4 (denying the privilege as to "information, documents or records otherwise available from original sources ... merely because they were presented during proceedings of such committee"; allowing an individual who appears before or is a member of a peer review committee to testify "as to matters within his knowledge," although he "cannot be asked about his testimony [in] or opinions formed by him as a result of said committee hearings"); cf. 63 P.S. § 425.3 (immunizing certain persons involved in peer review from criminal culpability or civil liability for information provided unless the person knew, or had reason to believe, that the information was false).