Where a Defendant takes an “interlocutory” appeal on the basis of Peer Review Privilege, the appeal will be quashed unless the asserted Privilege is real - Rhodes vs. UPMC
The allegations on in Rhodes case center around unnecessary spine surgery performed on our client by a UPMC neurosurgeon, Dr. Peter Gerszten. The unnecessary surgery left our client paralyzed, in constant pain, and confined to a wheel chair.
In addition, one of the allegations is that Dr. Gerszten was barely involved in the spine surgery; instead letting a fellow perform most if not all of the three level surgery. It is also alleged that based on Dr. Gerszten’s incentive based contract, Dr. Gerszten permits resident, fellows, and physician’s assistants perform his surgeries so that he can have multiple surgeries taking place at the same time so earn more money.
In our case, in discovery we found that Dr. Gerstzen had another complex spine surgery taking place at the exact same time as our clients.
At the end of Mrs. Rhodes’ operative report, in the “Attending Attestation” section of the record, Dr. Gerszten wrote, “I was present for the entire operation.” Additionally, Mrs. Rhodes’ intra-operative records provide specific times that Dr. Gerszten allegedly entered and exited the operating room:
TIME IN: 7: 13 am TIME OUT: 9: 27 am
As discussed above, we had reason to believe that Dr. Gerszten made the same claim, i.e. “I was present for the entire operation”, in this other patient’s operative report and intra-operative records for a surgery occurring at the exact same time as Mrs. Rhodes’ surgery. Therefore, in trying to determine whether Dr. Gerszten did in fact claim to be in two operating rooms at the exact same time, we first requested Dr. Gerszten’s surgical schedule from UPMC Presbyterian, and requested UPMC Presbyterian to identify the actual start times of Dr. Gerszten’s other surgeries that day.
The surgical schedule that UPMC produced, lists the scheduled start time of Mrs. Rhodes’ multi-level surgery as 7: 10 am. Notably, the surgical schedule also reveals that Dr. Gerszten had a full schedule of surgeries that day including a multi-level Spine Anterior Cervical Discectomy and Fusion Internal Fixation surgery (a complex surgery) also scheduled for 7: 10 am – the exact same time as Mrs. Rhodes’s surgery.
As for the actual start time (not “scheduled” start time) of Dr. Gerszten’s other surgeries, UPMC refused to provide an answer. Ultimately, a Special Master and Judge Colville ordered UPMC to do so. As ordered, UPMC provided Supplemental Answers to Plaintiffs’ First Set of Interrogatories which reveal that this other complex, multi-level, spine fusion surgery performed on Patient X was indeed being performed at the exact same time as Mrs. Rhodes’ surgery. However, UPMC’s Supplemental Answers did not provide any documents to verify the answer nor did the answers provide any insight on when Dr. Gerszten claimed to be in the other operating room at the exact same time. Instead, what it did provide was a self-serving narrative written by Defense Counsel that attempts to explain how Dr. Gerszten was able to be present in two operating rooms and perform spine surgeries on two patients at the exact same time. Moreover, UPMC’s Supplemental Answers did not provide the times listed for Dr. Gerszten being “In” and “Out” of the other operating room nor did it provide Dr. Gerszten’s “Attending Attestation” statement for this other surgery to see whether Dr. Gerszten claimed to be present for that entire surgery as well as Mrs. Rhodes’ entire surgery.
Therefore, we filed a Motion asking the Court to order UPMC to produce limited, redacted records from this other surgery. After a lengthy argument on this issue, Judge Colville granted Plaintiffs’ Motion and ordered UPMC to produce the limited, surgical records of this other surgery. Following that, UPMC filed a Motion for Reconsideration. After yet another oral argument, Judge Colville upheld his prior ruling and issued an Opinion.
Still refusing to produce these limited redacted records, two months before the schedule jury trial, UPMC filed an appeal to the Superior Court. UPMC claimed that it was too concerned with its patient’s privacy rights simply to turn these records over (even though all patient identifiers were ordered to be redacted).
In turn, we filed a Petition with the Superior Court asking the Court to quash (immediately dismiss) UPMC’s appeal based on the frivolous and disingenuous nature of the appeal. As we discussed in our detailed Petition, the appeal was nothing more than tactic to try and delay a case of this nature from being tried for years as our client is elderly and not in good health (due to the unnecessary surgery).
In a rare move, the Superior Court granted our Petition and dismissed UPMC’s appeal within months of it being filed.