Medical Studies Act and Attorney Client Privilege

1. Medical Studies Act and Attorney Client Privilege Presented by Genevieve LeFevour and Martha Szatkowski

2. MEDICAL STUDIES ACT 735 ILCS 5/8-2101-2102 • Section 8-2101 of the Medical Studies Act (hereinafter referred to as “the Act”) provides, in pertinent part: • 8-2101. Information obtained. All information, interviews, reports, statements, memoranda, recommendations, . . . or other data of. . . committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees, and Executive Committees, or their designees (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity and mortality, or for improving patient care. . . shall be privileged, strictly confidential, and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care. . . (See 735 ILCS 5/8-2101 (West 2006)).

3. Medical Studies Act Continued • Section 8-2102 of the Act states as follows: • 8-2102. Admissibility as evidence. Such information, records, reports, statements, notes, memoranda, or other data, shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency, or person. The disclosure of any such information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility. • See 735 ILCS 5/8-2102 (West 2006), emphasis supplied.

4. Background • The Medical Studies Act (MSA), as amended in July 1997, designates as privileged from discovery and inadmissible as evidence all information of a confidential nature of in-hospital staff committees of accredited hospitals, or its designees, gathered and used for the purpose of medical research or to reduce morbidity or mortality or improve patient care.

5. The Act Explained • In order to encourage the evaluation of adverse patient events, certain communications and information gathered through the peer review process about an adverse patient are protected from discovery in litigation.

6. Peer Review • The process by which practitioners evaluate the quality of their peers. • Committee process • Physicians determine if standard of care is met. • Goal: to identify the cause and development of an improved process for patient safety. • In the alternative, a specific practitioner may become the focus of an investigation.

7. Privilege is Limited • All information, including reports, memos, and statements of certain health care entities used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges.

8. Privilege Continued • The privilege cannot be waived. • Disclosure of privilege information is a misdemeanor offense.

9. Non-Privileged Information • A document generated in the ordinary course of a hospital’s medical business, or for the purpose of rendering legal opinions, or to weigh potential liability risk, or for later corrective action is not privileged under the MSA. See Pietro v. Marriott Senior Living Services, Inc., App. 1 Dist. 2004, 284 Ill. Dec. 564.

10. When the Privilege Applies • The hospital committee must be engaged in the peer review process before the statutory privilege under the MSA applies. • To establish the MSA privilege, a hospital must prove the incident or occurrence report is strictly confidential and used exclusively for purposes of peer review and quality control. • Documents generated for the use of a peer review committee receive protection under the MSA. See Webb v. Mount Sinai Hosp. and Medical Ctr., App. 1 Dist. 2004, 283 Ill. Dec. 185.

11. 2 Keys Questions for Illinois Courts • (1) Which entity within the hospital collected the information; and • (2) Whether the purpose for the collection of the information was improving patient care and reducing morbidity and mortality.

12. Questions Addressed • The ILSC held that where the committee is made up of the hospital’s medical staff, a peer-review committee must be involved in the review process before the privilege will attach. • Material sought to be protected by the Act must be generated as part of the peer review process itself. • It cannot be material collected for legal or investigative purposes which is later given to a peer review committee. • See Roach v. Springfield Clinic, 157 Ill. 2d 29, 623 N.E.2d 246 (1993)

13. Annual Physician Reviews • MSA was created to advance the quality of health care by ensuring that members of the medical profession effectively engage in a peer-review process. See Toth v. Jensen, 272 Ill.App.3d 382, 385, 649 N.E.2d 484 (1st Dist. 1995).

14. Negligent Credentialing • Negligent credentialing action • Hospital’s credentialing requirements were not privileged under the MSA. • See Frigo v. Silver Cross Hosp., 377 Ill. App. 3d 43, 876 N.E.2d 697 (1st Dist. 2007)

15. Medical Staff Privileges • Letter from doctor, generated at request of hospital's credentialing committee, could be privileged from discovery under MSA in medical malpractice litigation. • Granting or limiting staff privileges could constitute internal quality control. • See Stricklin v. Becan, App. 4 Dist.1997, 228 Ill.Dec.456, 293 Ill.App.3d 886, 689 N.E.2d 328.

16. Staff Privileges Continued • Physicians' applications for privileges at hospital were not subject to withholding from pretrial discovery in malpractice action • Applications were antecedent to peer review process and not protected under the Act. • Ekstrom v. Temple, App. 2 Dist.1990, 142 Ill.Dec. 910, 197 Ill.App.3d 120, 553 N.E.2d 424

17. Documents Prepared Before and After Peer Review Not Privileged • The Act does not protect documents written before the peer-review process begins or after it ends. • The Court could not determine that certain documents generated by the hospital’s risk manager were written during the peer review process and fell within the scope of the Act. • See Webb v. Mount Sinai Hosp., 347 Ill. App. 3d 817, 807 N.E.2d 1026 (1st Dist. 2004).

18. Conclusion of Peer Review Process • Documents generated specifically for the use of physician peer-review committee are privileged under MSA provision covering information and studies used for internal quality control or improvement of care in medical facilities. • The MSA does not protect against disclosure of committee's recommendations after completion of the peer-review process. • See Green v. Lake Forest Hosp., App. 2 Dist.2002, 269 Ill.Dec. 861, 335 Ill.App.3d 134, 781 N.E.2d 658

19. Institutional Review Board Privileged • Information from hospital’s institutional review board was privileged under the Act. • Information was used in the course of medical study and internal quality control. • See Doe v. Ill. Masonic Med. Ctr., 297 Ill. App. 3d 240, 696 N.E.2d 707 (1st Dist. 1998)

20. Incidents and Situation Reports Not Privileged • Incident and situation reports about a hospital patient’s case were held not to be privileged under the MSA. • Court held that each document should be examined specifically to determine if it has been made part of the peer review process. • See Chicago Trust Co. v. Cook County Hosp., 298 Ill. App. 3d 396, 698 N.E.2d 641 (1st Dist. 1998)

21. Test Reports Privileged • Reports of pathological tests were initiated by a committee and fall within the scope of the MSA. • All information gathered and documents generated by the committee fall within the privilege afforded by the MSA. • See Sakosko v. Memorial Hosp., 167 Ill. App. 3d 842, 522 N.E.2d 273 (5th Dist. 1985)

22. Hospital Administration Investigation Not Privileged • An investigation generally undertaken by hospital administration is not protected by Medical Studies Act protecting information used in course of internal quality control or medical study for reducing morbidity or improving patient care. • Administrator was not acting on behalf of any peer review committee. • See Grandi v. Shah, App. 1 Dist.1994, 199 Ill.Dec. 98, 261 Ill.App.3d 551, 633 N.E.2d 894

23. Patient Records • Review procedures were privileged under MSA, and hospital could not waive statutory privilege. • Patient did not allege that hospital negligently violated its review procedures. • See Zajac v. St. Mary of Nazareth Hosp. Center, App. 1 Dist.1991, 156 Ill.Dec. 860, 212 Ill.App.3d 779, 571 N.E.2d 840.

24. Who Has the Burden • A defendant who relies on the Act and its privilege has the burden of setting forth facts which give rise to the privilege. See Ardisana v. Northwest Community Hospital 342 Ill. App. 3d 741, 795 N.E.2d 964 (1st Dist. 2003).

25. Legal and Factual Determination • Court must determine the applicability of a discovery privilege as a matter of law. • However, whether specific materials are part of a medical study is a factual question within that legal determination for the trier of fact. • See Niven v. Siqueira, 109 Ill. 2d 357, 487 N.E.2d 937 (1985)

26. Sentinel Events • Medical journal articles utilized by Sentinel Events Committee and final “Action Plan” protected by MSA. • While “results” of peer-review process not privileged, “recommendations” and “conclusions” of peer-review committees leading to results are protected. • See Anderson v. Rush-Copley Medical Center --2008 Ill. App. LEXIS 828 (2d Dist. 2008)

27. ATTORNEY-CLIENT PRIVILEGE • In Illinois, a statement provided by an insured (who is also a potential party defendant) given to her insurer or her insurer’s agent is privileged from discovery under the attorney-client privilege.

28. It is well-settled in Illinois that statements made by an insured to his insurance carrier or its investigator when the insurance carrier has a duty to select an attorney and provide a defense to the insured fall within the attorney-client privilege. • In addition, statement by the insured to an independent contractor retained by the insurance carrier to investigate the claim, made under the assumption that the statements would be transmitted to the attorney to protect the insured’s interests, are privileged.

29. Privilege Continued • Also, if a statement is made to an insurer by an insured that faces a possibility of liability, it remains privileged in later litigation, even if the insured is not one of the defendants.

30. Establishing the Attorney-Client Privilege To establish the privilege, the proponent of the privilege need only establish: 1) the insured’s identity; 2) the insurance carrier’s identity; 3) the insurance carrier’s duty to defend the insured and the agent of the insurance carrier 4)that a communication was made between the insured and an agent of the insurance carrier.

31. DESTRUCTION OF THE MEDICAL STUDIES ACT PRIVILEGE • If a party asserts the attorney-client privilege, any argument that the MSA privilege applies is fatal. • The reason it is fatal is because if a hospital asserts the attorney-client privilege, it is making an argument that an incident report represents a communication made by a potential party defendant to its insurer for purposes of defending against future litigation.

32. Therefore, the MSA privilege cannot apply, because the essential prerequisite of the Act is that the information is collected for the purposes of quality control and peer review. • A hospital could not successfully argue that the department of risk management is, simultaneously, a designee of the hospital’s peer review committees which is collecting confidential information for the purpose of peer review and a recipient of confidential information given by a potential party defendant for purposes of potential future litigation.

33. Attorney-Client Privilege/Petrillo • Just as the attorney-client privilege can conflict with the MSA privilege, it can also conflict with Petrillo. • The Petrillo doctrine precludes counsel for a defendant from communicating with a healthcare worker employed by the defendant. • However, a justification can exist for the exclusion of Petrillo where liability on the hospital is predicated on the negligence of an employee-physician.

34. Reconciling Petrillo With the Attorney-Client Privilege • The issue of Petrillo and the attorney-client privilege becomes difficult due to the fact that it cannot always be known from the time of a hospital occurrence whose conduct will be at issue. • Therefore, as an attorney, one approach would be to have risk management review the chart and determine which employees could be liable and speak with only such employees. • When speaking to the hospital employees, the attorney-client relationship must be established in order to ensure the employee does not risk personal exposure.

35. How to be Successful in Arguing the Attorney-Client Privilege 1) Provide evidence that the person who communicated with the department of risk management was a hospital insured and 2) The communication was made while the insured and that the communication was made while the insured was a potential party defendant to plaintiff’s action. **Important for hospitals to know that they cannot keep incident reports as a matter of ordinary business and then later try and assert the attorney-client privilege.**