PSO Case Law: Ungurian v. Beyzman, et al., 2020 PA Super 105

June 10, 2020    |   By: Alex Christgen, BS, CPPS, CPHQ

A recent Pennsylvania case shows how courts narrowly interpret the PSQIA, ignoring the D & A pathway and the clear language of the Final Rule. (Ungurian v. Beyzman, et al., 2020 PA Super 105). The court discussed the PSQIA protection for two documents: an event report and a root cause analysis report.  The court’s reasoning on the two documents differed.

The Event Report

The court focused on its conclusion that the hospital did not create the event report for purposes of reporting to the PSO.  The hospital appropriately argued that its “PSES encompasses information assembled, developed, deliberated upon, or analyzed from patient safety and quality activity and includes information that may result in documents such as occurrence reports, cause analysis, and root cause analyses.” The court held that because the hospital could have used the report for other purposes and because the policy did not require its submission to the PSO, it could not be protected. The court’s opinion ignores clear language in the PSQIA and Final Rule, particularly the dropout provision, which protects such information as PSWP until the provider says it isn’t PSWP.  Also, the PSQIA allows PSO participants to share and use PSWP with their workforce to support patient safety and quality activity, as described in the hospital’s affidavit.

The Root Cause Analysis

The court also found that the RCA was not “developed for the purpose of reporting to the PSO.”  The court also focused on the fact that “information contained in the RCA is not solely in the PSES.”  This finding attempts to create a requirement that PSWP, developed in the PSES, cannot exist outside of the PSES.  However, the law and the Final Rule provide that PSWP can be shared within a participating provider’s workforce without violating the disclosure provisions, even outside the PSES.  By its holding, the court eliminates that opportunity for providers to use PSWP for the improvement of safety and quality.

Take-Aways from Ungarian

This opinion underscores the underlying challenges of defending PSQIA protections. 

• In some jurisdictions, the courts are incredibly hesitant to enforce protections.  In all jurisdictions, the burden of establishing privilege falls on the provider, so we must be prepared to make those arguments. 
• Most courts have no knowledge or experience with this Act.  Therefore, the provider’s counsel needs to educate the court and discuss favorable cases such as Daley v. Ingalls Hospital and Rumsey v. The Guthrie Clinic.
• If your attorneys need additional background or help, contact your PSO before filing pleadings and affidavits for advice on how to draft those. The appellate courts look to the trial court record, which you generally cannot supplement.
• If you think it will help, consider offering the documents for an in camera inspection by the trial court. Because sharing could constitute a disclosure (unless ordered by the court), be sure to obtain a protective order and obtain written authorization from providers named in the documents, as described in Final Rule Section 3.206(b)(3).
• Support the ongoing education of your defense attorneys about the PSQIA, especially regarding the broad protection offered by the D & A pathway and the ability to use PSWP internally for safety and quality purposes. Some attorneys who are deeply involved in PSO litigation argue that providers can use PSWP within their workforce for ANY purpose.