On October 26, 2017 the Appellate Court for the Second District released for publication its decision in Grossheusch v. Edward Hospital, 2017 IL App (2d) 160972. In Grossheusch, the Second District tackled the longstanding and judicially vexing question whether certain hospital documents are privileged pursuant to the Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2014)) (MSA). The scope of the MSA has been heavily litigated, and at first glance, one would think there is nothing left to determine. But one must understand that every case is different. Moreover, after each judicial decision in this arena hospitals often alter their policies in an attempt to shield all documents they create following an adverse event. In response, Illinois Courts are repeatedly called upon to dissect hospital policies to ensure the proper balance between a plaintiff’s right to discover material information regarding the care and treatment they receive, and the hospital’s need to encourage candid and voluntary studies and programs to improve hospital conditions and patient care–commonly referred to as “peer review.”
In Grossheusch, the Second District was called upon to address one crucial aspect of the MSA: when the peer review process began. And this is important because only information obtained after the peer review begins will be privileged. Here, the Court addressed whether a hospital policy—that pre-dates the adverse event—requiring a hospital “liaison” to investigate concerns that “constituted ‘review indicators’ resulting in referral to” the hospital’s quality of care committee, triggered the beginning of the peer review process. If so, the investigation would be privileged and the plaintiff would not have access to materials gleaned from that investigation. In support of the privilege, the hospital “insist[ed] that, because the peer-review policy authorized the investigation, everything that was discovered through that investigation was privileged.” The Appellate Court disagreed, finding the hospital’s “argument [to be] contrary to over 20 years of precedent establishing that the [MSA] cannot be used to conceal relevant evidence that was created before a quality-assurance committee or its designee authorized an investigation into a specific incident.”
In sum, the Appellate Court found that at the time this “liaison” wrote notes about her investigation, the committee was not engaged in an investigation. Rather, the “liaison” simply wrote these notes, and the committee later reviewed the notes. Indeed, the fact that a policy giving this “liaison” authority to investigate was enacted “five years before the incident at issue” cannot support a privilege. The moral here is clear: a hospital cannot enact policies that pre-determine the beginning of the peer review process. If such were the law, a hospital could shield all relevant information from a plaintiff by simply enacting policies finding that the mere fact of an adverse event triggers the beginning of the peer-review process. And the only information available to the plaintiff would be his/her medical records. This is something the law rightfully cannot allow.
The entire opinion can be found at: https://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/2ndDistrict/2160972.pdf
— Ryan M. Griffin
Recent Comments