Medical Studies Act Medical Studies Act and Attorney Client and Attorney Client

PrivilegePrivilege

Presented by Genevieve Presented by Genevieve LeFevour and Martha LeFevour and Martha

SzatkowskiSzatkowski

MEDICAL STUDIES ACT MEDICAL STUDIES ACT 735 ILCS 5/8-2101-2102735 ILCS 5/8-2101-2102

• Section 8-2101 of the Medical Studies Act (hereinafter Section 8-2101 of the Medical Studies Act (hereinafter referred to as “the Act”) provides, in pertinent part:referred to as “the Act”) provides, in pertinent part:

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

Medical Studies Act Medical Studies Act ContinuedContinued

• Section 8-2102 of the Act states as follows:Section 8-2102 of the Act states as follows:• 8-2102. Admissibility as evidence. 8-2102. Admissibility as evidence. Such Such

information, records, reports, statements, notes, information, records, reports, statements, notes, memoranda, or other data, shall not be memoranda, or other data, shall not be admissible as evidence, nor discoverable in any admissible as evidence, nor discoverable in any action of any kind in any court or before any action of any kind in any court or before any tribunal, board, agency, or person.tribunal, board, agency, or person. The The disclosure of any such information or data, disclosure of any such information or data, whether proper, or improper, shall not waive or whether proper, or improper, shall not waive or have any effect upon its confidentiality, have any effect upon its confidentiality, nondiscoverability, or nonadmissibility. nondiscoverability, or nonadmissibility.

• SeeSee 735 ILCS 5/8-2102 (West 2006), 735 ILCS 5/8-2102 (West 2006), emphasis emphasis supplied. supplied.

BackgroundBackground

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

The Act ExplainedThe Act Explained

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

Peer ReviewPeer Review

• The process by which practitioners The process by which practitioners evaluate the quality of their peers.evaluate the quality of their peers.

• Committee processCommittee process• Physicians determine if standard of care is Physicians determine if standard of care is

met.met.• Goal: to identify the cause and development Goal: to identify the cause and development

of an improved process for patient safety. of an improved process for patient safety. • In the alternative, a specific practitioner In the alternative, a specific practitioner

may become the focus of an investigation. may become the focus of an investigation.

Privilege is LimitedPrivilege is Limited

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

Privilege ContinuedPrivilege Continued

• The privilege cannot be waived.The privilege cannot be waived.• Disclosure of privilege information is Disclosure of privilege information is

a misdemeanor offense.a misdemeanor offense.

Non-Privileged Non-Privileged InformationInformation

• A document generated in the ordinary A document generated in the ordinary course of a hospital’s medical course of a hospital’s medical business, or for the purpose of business, or for the purpose of rendering legal opinions, or to weigh rendering legal opinions, or to weigh potential liability risk, or for later potential liability risk, or for later corrective action is corrective action is notnot privileged privileged under the MSA. See under the MSA. See Pietro v. Marriott Pietro v. Marriott Senior Living Services, IncSenior Living Services, Inc., App. 1 ., App. 1 Dist. 2004, 284 Ill. Dec. 564. Dist. 2004, 284 Ill. Dec. 564.

When the Privilege When the Privilege AppliesApplies

• The hospital committee must be engaged in The hospital committee must be engaged in the peer review process the peer review process beforebefore the statutory the statutory privilege under the MSA applies. privilege under the MSA applies.

• To establish the MSA privilege, a hospital To establish the MSA privilege, a hospital must prove the incident or occurrence report must prove the incident or occurrence report is strictly confidential and used is strictly confidential and used exclusivelyexclusively for for purposes of peer review and quality control. purposes of peer review and quality control.

• Documents generated for the use of a peer Documents generated for the use of a peer review committee receive protection under review committee receive protection under the MSA. See the MSA. See Webb v. Mount Sinai Hosp. and Webb v. Mount Sinai Hosp. and Medical Ctr.,Medical Ctr., App. 1 Dist. 2004, 283 Ill. Dec. App. 1 Dist. 2004, 283 Ill. Dec. 185. 185.

2 Keys Questions for 2 Keys Questions for Illinois CourtsIllinois Courts

• (1) Which entity within the hospital (1) Which entity within the hospital collected the information; and collected the information; and

• (2) Whether the purpose for the (2) Whether the purpose for the collection of the information was collection of the information was improving patient care and reducing improving patient care and reducing morbidity and mortality. morbidity and mortality.

Questions AddressedQuestions Addressed• The ILSC held that where the committee is The ILSC held that where the committee is

made up of the hospital’s medical staff, a peer-made up of the hospital’s medical staff, a peer-review committee review committee must must be involved in the be involved in the review process before the privilege will attach. review process before the privilege will attach.

• Material sought to be protected by the Act Material sought to be protected by the Act must be generated as part of the peer review must be generated as part of the peer review process itself. process itself.

• It cannot be material collected for legal or It cannot be material collected for legal or investigative purposes which is later given to a investigative purposes which is later given to a peer review committee. peer review committee.

• See See Roach v. Springfield ClinicRoach v. Springfield Clinic, 157 Ill. 2d 29, , 157 Ill. 2d 29, 623 N.E.2d623 N.E.2d246 (1993)246 (1993)

Annual Physician Annual Physician ReviewsReviews

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

Negligent CredentialingNegligent Credentialing

• Negligent credentialing actionNegligent credentialing action• Hospital’s credentialing Hospital’s credentialing

requirements were not privileged requirements were not privileged under the MSA. under the MSA.

• See See Frigo v. Silver Cross HospFrigo v. Silver Cross Hosp., 377 ., 377 Ill. App. 3d 43, 876 N.E.2d 697 (1Ill. App. 3d 43, 876 N.E.2d 697 (1stst Dist. 2007)Dist. 2007)

Medical Staff PrivilegesMedical Staff Privileges

• Letter from doctor, generated at request Letter from doctor, generated at request of hospital's credentialing committee, of hospital's credentialing committee, could be privileged from discovery under could be privileged from discovery under MSA in medical malpractice litigation.MSA in medical malpractice litigation.

• Granting or limiting staff privileges could Granting or limiting staff privileges could constitute internal quality control.constitute internal quality control.

• See See Stricklin v. BecanStricklin v. Becan, App. 4 Dist.1997, , App. 4 Dist.1997, 228 Ill.Dec.456, 293 Ill.App.3d 886, 689 228 Ill.Dec.456, 293 Ill.App.3d 886, 689 N.E.2d 328. N.E.2d 328.

Staff Privileges Staff Privileges ContinuedContinued

• Physicians' applications for privileges at Physicians' applications for privileges at hospital were not subject to withholding hospital were not subject to withholding from pretrial discovery in malpractice from pretrial discovery in malpractice action action

• Applications were antecedent to peer Applications were antecedent to peer review process and not protected under review process and not protected under the Act. the Act.

• Ekstrom v. TempleEkstrom v. Temple, App. 2 Dist.1990, , App. 2 Dist.1990, 142 Ill.Dec. 910, 197 Ill.App.3d 120, 553 142 Ill.Dec. 910, 197 Ill.App.3d 120, 553 N.E.2d 424N.E.2d 424

Documents Prepared Documents Prepared Before and After Peer Before and After Peer Review Review NotNot Privileged Privileged

• The Act does not protect documents The Act does not protect documents written written beforebefore the peer-review process the peer-review process begins or begins or after after it ends. it ends.

• The Court could The Court could not not determine that determine that certain documents generated by the certain documents generated by the hospital’s risk manager were written hospital’s risk manager were written during the peer review process and fell during the peer review process and fell within the scope of the Act.within the scope of the Act.

• See See Webb v. Mount Sinai HospWebb v. Mount Sinai Hosp., 347 Ill. ., 347 Ill. App. 3d 817, 807 N.E.2d 1026 (1App. 3d 817, 807 N.E.2d 1026 (1stst Dist. Dist. 2004).2004).

Conclusion of Peer Review Conclusion of Peer Review ProcessProcess

• Documents generated specifically for the use Documents generated specifically for the use of physician peer-review committee are of physician peer-review committee are privileged under MSA provision covering privileged under MSA provision covering information and studies used for internal information and studies used for internal quality control or improvement of care in quality control or improvement of care in medical facilities.medical facilities.

• The MSA does not protect against disclosure The MSA does not protect against disclosure of committee's recommendations of committee's recommendations afterafter completion of the peer-review process. completion of the peer-review process.

• See See Green v. Lake Forest Hosp.Green v. Lake Forest Hosp., App. 2 , App. 2 Dist.2002, 269 Ill.Dec. 861, 335 Ill.App.3d Dist.2002, 269 Ill.Dec. 861, 335 Ill.App.3d 134, 781 N.E.2d 658134, 781 N.E.2d 658

Institutional Review Board Institutional Review Board PrivilegedPrivileged

• Information from hospital’s Information from hospital’s institutional review board was institutional review board was privileged under the Act.privileged under the Act.

• Information was used in the course of Information was used in the course of medical study and internal quality medical study and internal quality control. control.

• See See Doe v. Ill. Masonic Med. CtrDoe v. Ill. Masonic Med. Ctr., 297 ., 297 Ill. App. 3d 240, 696 N.E.2d 707 (1Ill. App. 3d 240, 696 N.E.2d 707 (1stst Dist. 1998)Dist. 1998)

Incidents and Situation Incidents and Situation Reports Reports NotNot Privileged Privileged

• Incident and situation reports about a Incident and situation reports about a hospital patient’s case were held not to hospital patient’s case were held not to be privileged under the MSA. be privileged under the MSA.

• Court held that each document should be Court held that each document should be examined specifically to determine if it examined specifically to determine if it has been made part of the peer review has been made part of the peer review process.process.

• See See Chicago Trust Co. v. Cook County Chicago Trust Co. v. Cook County HospHosp., 298 Ill. App. 3d 396, 698 N.E.2d ., 298 Ill. App. 3d 396, 698 N.E.2d 641 (1641 (1stst Dist. 1998) Dist. 1998)

Test Reports PrivilegedTest Reports Privileged

• Reports of pathological tests were Reports of pathological tests were initiated by a committee and fall within initiated by a committee and fall within the scope of the MSA.the scope of the MSA.

• All information gathered and documents All information gathered and documents generated by the committee fall within generated by the committee fall within the privilege afforded by the MSA. the privilege afforded by the MSA.

• See See Sakosko v. Memorial HospSakosko v. Memorial Hosp., 167 Ill. ., 167 Ill. App. 3d 842, 522 N.E.2d 273 (5App. 3d 842, 522 N.E.2d 273 (5thth Dist. Dist. 1985)1985)

Hospital Administration Hospital Administration Investigation Investigation Not Not PrivilegedPrivileged• An investigation generally undertaken by An investigation generally undertaken by

hospital administration is not protected by hospital administration is not protected by Medical Studies Act protecting information Medical Studies Act protecting information used in course of internal quality control or used in course of internal quality control or medical study for reducing morbidity or medical study for reducing morbidity or improving patient care. improving patient care.

• Administrator was not acting on behalf of any Administrator was not acting on behalf of any peer review committee. peer review committee.

• See See Grandi v. ShahGrandi v. Shah, App. 1 Dist.1994, 199 , App. 1 Dist.1994, 199 Ill.Dec. 98, 261 Ill.App.3d 551, 633 N.E.2d Ill.Dec. 98, 261 Ill.App.3d 551, 633 N.E.2d 894894

Patient RecordsPatient Records

• Review procedures were privileged Review procedures were privileged under MSA, and hospital could not waive under MSA, and hospital could not waive statutory privilege.statutory privilege.

• Patient did not allege that hospital Patient did not allege that hospital negligently violated its review negligently violated its review procedures. procedures.

• See See Zajac v. St. Mary of Nazareth Hosp. Zajac v. St. Mary of Nazareth Hosp. CenterCenter, App. 1 Dist.1991, 156 Ill.Dec. , App. 1 Dist.1991, 156 Ill.Dec. 860, 212 Ill.App.3d 779, 571 N.E.2d 840.860, 212 Ill.App.3d 779, 571 N.E.2d 840.

Who Has the BurdenWho Has the Burden

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

Legal and Factual Legal and Factual DeterminationDetermination

• Court must determine the Court must determine the applicability of a discovery privilege applicability of a discovery privilege as a matter of law.as a matter of law.

• However, whether specific materials However, whether specific materials are part of a medical study is a are part of a medical study is a factual question within that legal factual question within that legal determination for the trier of fact.determination for the trier of fact.

• See See Niven v. SiqueiraNiven v. Siqueira, 109 Ill. 2d 357, , 109 Ill. 2d 357, 487 N.E.2d 937 (1985)487 N.E.2d 937 (1985)

Sentinel EventsSentinel Events

• Medical journal articles utilized by Medical journal articles utilized by Sentinel Events Committee and final Sentinel Events Committee and final “Action Plan” protected by MSA.“Action Plan” protected by MSA.

• While “results” of peer-review process While “results” of peer-review process not privileged, “recommendations” and not privileged, “recommendations” and “conclusions” of peer-review committees “conclusions” of peer-review committees leading to results are protected. leading to results are protected.

• See See Anderson v. Rush-Copley Medical Anderson v. Rush-Copley Medical CenterCenter --2008 Ill. App. LEXIS 828 (2d --2008 Ill. App. LEXIS 828 (2d Dist. 2008)Dist. 2008)

ATTORNEY-CLIENT ATTORNEY-CLIENT PRIVILEGEPRIVILEGE

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

• It is well-settled in Illinois that It is well-settled in Illinois that statements made by an insured to his statements made by an insured to his insurance carrier or its investigator when insurance carrier or its investigator when the insurance carrier has a duty to select the insurance carrier has a duty to select an attorney and provide a defense to the an attorney and provide a defense to the insured fall within the attorney-client insured fall within the attorney-client privilege.privilege.

• In addition, statement by the insured to In addition, statement by the insured to an independent contractor retained by an independent contractor retained by the insurance carrier to investigate the the insurance carrier to investigate the claim, made under the assumption that claim, made under the assumption that the statements would be transmitted to the statements would be transmitted to the attorney to protect the insured’s the attorney to protect the insured’s interests, are privileged.interests, are privileged.

Privilege ContinuedPrivilege Continued

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

Establishing the Attorney-Establishing the Attorney-Client PrivilegeClient Privilege

To establish the privilege, the proponent of To establish the privilege, the proponent of the privilege need only establish:the privilege need only establish:

1) the insured’s identity;1) the insured’s identity;

2) the insurance carrier’s identity;2) the insurance carrier’s identity;

3) the insurance carrier’s duty to defend the 3) the insurance carrier’s duty to defend the insured and the agent of the insurance insured and the agent of the insurance carrier carrier

4)that a communication was made between 4)that a communication was made between the insured and an agent of the insurance the insured and an agent of the insurance carrier.carrier.

DESTRUCTION OF THE DESTRUCTION OF THE MEDICAL STUDIES ACT MEDICAL STUDIES ACT

PRIVILEGEPRIVILEGE• If a party asserts the attorney-client If a party asserts the attorney-client

privilege, any argument that the MSA privilege, any argument that the MSA privilege applies is fatal.privilege applies is fatal.

• The reason it is fatal is because if a The reason it is fatal is because if a hospital asserts the attorney-client hospital asserts the attorney-client privilege, it is making an argument that privilege, it is making an argument that an incident report represents a an incident report represents a communication made by a potential communication made by a potential party defendant to its insurer for party defendant to its insurer for purposes of defending against future purposes of defending against future litigation.litigation.

• Therefore, the MSA privilege cannot Therefore, the MSA privilege cannot apply, because the essential prerequisite apply, because the essential prerequisite of the Act is that the information is of the Act is that the information is collected for the purposes of quality collected for the purposes of quality control and peer review. control and peer review.

• A hospital could not successfully argue A hospital could not successfully argue that the department of risk management that the department of risk management is, simultaneously, a designee of the is, simultaneously, a designee of the hospital’s peer review committees which hospital’s peer review committees which is collecting confidential information for is collecting confidential information for the purpose of peer review the purpose of peer review andand a a recipient of confidential information recipient of confidential information given by a potential party defendant for given by a potential party defendant for purposes of potential future litigation.purposes of potential future litigation.

Attorney-Client Attorney-Client Privilege/Privilege/PetrilloPetrillo

• Just as the attorney-client privilege can Just as the attorney-client privilege can conflict with the MSA privilege, it can also conflict with the MSA privilege, it can also conflict with conflict with Petrillo.Petrillo.

• The The Petrillo Petrillo doctrine precludes counsel for a doctrine precludes counsel for a defendant from communicating with a defendant from communicating with a healthcare worker employed by the healthcare worker employed by the defendant.defendant.

• However, a justification can exist for the However, a justification can exist for the exclusion of exclusion of PetrilloPetrillo where liability on the where liability on the hospital is predicated on the negligence of an hospital is predicated on the negligence of an employee-physician.employee-physician.

Reconciling Reconciling PetrilloPetrillo With With the Attorney-Client the Attorney-Client

Privilege Privilege • The issue of The issue of PetrilloPetrillo and the attorney-client and the attorney-client

privilege becomes difficult due to the fact that it privilege becomes difficult due to the fact that it cannot always be known from the time of a cannot always be known from the time of a hospital occurrence whose conduct will be at hospital occurrence whose conduct will be at issue.issue.

• Therefore, as an attorney, one approach would Therefore, as an attorney, one approach would be to have risk management review the chart be to have risk management review the chart and determine which employees could be liable and determine which employees could be liable and speak with only such employees. and speak with only such employees.

• When speaking to the hospital employees, the When speaking to the hospital employees, the attorney-client relationship must be established attorney-client relationship must be established in order to ensure the employee does not risk in order to ensure the employee does not risk personal exposure.personal exposure.

How to be Successful in How to be Successful in Arguing the Attorney-Client Arguing the Attorney-Client

PrivilegePrivilege1) Provide evidence that the person who 1) Provide evidence that the person who

communicated with the department of risk communicated with the department of risk management was a hospital insured and management was a hospital insured and

2) The communication was made while the 2) The communication was made while the insured and that the communication was made insured and that the communication was made while the insured was a potential party while the insured was a potential party defendant to plaintiff’s action.defendant to plaintiff’s action.

****Important for hospitals to know that they Important for hospitals to know that they cannot keep incident reports as a matter of cannot keep incident reports as a matter of ordinary business and then later try and ordinary business and then later try and assert the attorney-client privilege.**assert the attorney-client privilege.**