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Second District Clarifies: IL Medical Studies Act Does Not Apply Until After a Peer-Review Committee Initiates an Investigation
October 17, 2017AppellateStephen GorskiRelated Practice Areas: Appellate
In Grosshuesch v. Edward Hospital, et al., 2107 IL App (2d) 160972, the Illinois Appellate Court for the Second District clarified when the Medical Studies Act (735 ILCS 5/8-2101, et. seq.) protects documents from production during discovery. In Grosshuesch, the court held that in order for a party to successfully assert a claim of privilege over documents pursuant to the Medical Studies Act, two things must be true: (1) the documents must be made after an internal peer-review committee is assembled to investigate a patient’s medical treatment; and (2) the documents must be initiated, created, prepared, or generated by a peer-review committee.
In Grosshuesch, the plaintiff filed a wrongful-death and survival action against Edward Hospital and a number of medical providers following the death of her newborn child. She was hospitalized during the 30th week of her pregnancy, and gave birth the day she was hospitalized. The newborn child was born with a number of medical issues, including necrotizing entercolitis, and died a few weeks after birth. Shortly thereafter, the plaintiff contacted the hospital to express concerns regarding the medical treatment rendered to her and her child. The plaintiff’s concerns and the death of her child were “review indicators” included in the hospital’s medical staff quality committee (MSQC) charter and its peer-review policy. Based on these indicators, the MSQC’s liaison met with two physicians who worked at the hospital to discuss the purported deficiencies in medical care raised by the plaintiff. The MSQC liaison created notes in an electronic database, which included the reviewing physicians’ conclusions and requests for additional information. A week later, the MSQC met for the first time to discuss the plaintiff’s concerns and medical treatment, and in doing so relied upon the notes created by the MSQC liaison.
During the course of discovery, the plaintiff requested the hospital produce the MSQC liaison’s notes. The hospital refused to produce those notes, claiming they were privileged under the Medical Studies Act. The plaintiff then filed a motion to compel an in camera inspection of the MSQC liaison’s notes. The hospital asserted that the MSQC liaison’s notes were privileged because they were made pursuant to the hospital’s internal peer-review policy, and that the matter had been referred to the MSQC as soon as the plaintiff reported her concerns to the hospital. The trial court held that the MSQC liaison’s notes were not privileged under the Medical Studies Act because they were drafted before the MSQC met, and the MSQC was not involved in the peer-review process until after the documents were created. The court ordered the hospital to produce the MSQC liaison’s notes, but the hospital refused to do so in order to obtain a “friendly contempt” order to bring the issue before the Appellate Court.
The Second District upheld the trial court’s ruling, and in doing so, reaffirmed decades of precedent that in order for a defendant to claim a privilege under the Medical Studies Act, a peer-review committee must have met and directed the creation of the privileged documents. The court noted that at the time the MSQC liaison began her investigation, the MSQC had not yet met. Thus, the liaison’s notes were not privileged for that reason alone.
The court also noted that the hospital’s internal policies that triggered the investigation did not constitute a “peer review committee” as contemplated under the Medical Studies Act. The court concluded that permitting such internal quality control policies to govern when the Medical Studies Act applies could end up covering documents that were otherwise made in the ordinary course of business. Rather, the court held that the documents must be made at the direction of a peer-review committee to investigate a specific patient’s medical care. The court again noted that the MSQC had not assembled to discuss the plaintiff’s medical care at the time the liaison made her notes. The court also noted that the contested documents were made pursuant to a written hospital policy, not at the direction of a peer-review committee, and thus, were not privileged under the Medical Studies Act.
The court also declined to follow the defendant’s argument that the liaison’s notes were privileged because the MSQC eventually relied on them. By that logic, any document relied upon by the MSQC would arguably be privileged under the Medical Studies Act. To allow that argument to prevail would put even a patient’s medical records made in the ordinary course of business beyond the reach of discovery.
In order to gain the benefit and privilege of the Medical Studies Act, hospitals and other medical providers need to be aware of the holding in Grosshuesch. Peer-review documents are privileged from discovery when a peer-review committee has met to discuss a specific patient’s medical treatment, and when those documents were generated at the direction of the peer-review committee to investigate the same patient’s medical treatment. It is not enough for medical staff to act pursuant to internal quality control or peer-review policies, even if the documents generated pursuant to those policies are eventually utilized by a peer-review committee. While such internal policies may be useful in determining when to assemble a peer-review committee, the privilege set forth in the Medical Studies Act only applies to documents generated at the direction of a peer-review committee during an active investigation of a patient’s medical treatment.
