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-Oliver Wendell Holmes, Jr.

Courts Limit Hospital “Peer Review” Protection

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Courts Limit Hospital “Peer Review” Protection

Illinois hospitals routinely use physician peer reviews and hospitals and other health care facilities quality control committees to improve the quality of patient care. These reviews most-often, but not always, look into a specific patient’s care where there has been a negative outcome to determine if there is something that the can be done to improve future patient care. The purpose of the Medical Studies Act is to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rates of death and disease.

Encouraging candor from physicians and other health care professionals

The review may include such aspects as determining the following:

  • If any of the physicians, nurses, other medical care providers were negligent in providing care
  • If the hospital policies or procedures contributed to the negative outcome
  • If there was a problem with the facility or equipment used in treating the patient

   

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The Medical Studies Act is premised on the belief that, absent the statutory peer-review privilege, physicians would be reluctant to sit on peer-review committees and engage in frank evaluations of their colleagues.

Privilege granted by Medical Studies Act

If performed within the parameter of the Illinois Medical Studies Act (Act), the peer review and quality control investigations are entitled to a privilege preventing the disclosure in later litigation regarding a patient’s care and treatment. To be cloaked in the privilege under the Act, the documents must be created after the hospital’s committee has been engaged in a peer review or quality control review. If documents have been prepared prior to the empaneling of a specific peer review or initiation of a quality control process, it may not be entitled to protection from disclosure.

The Act specifically provides:

    All information . . . reference or other third party confidential assessments of a health care practitioners professional competence or other data of . . . committees of licensed or accredited hospitals or their medical staffs, or their designees, 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 . . . the evaluation and improvement of quality care.

735 ILCS 5/8-2101 (emphasis added). Section 8-2102 of the Act provides that “the information, records, reports, statements, notes, memoranda or other data, shall not be admissible as evidence, nor discoverable in any action of any kind any court or before any tribunal, board, agency or person.” 735 ILCS 5/8-2102 2101 (emphasis added).

In order to invoke the privilege under the Act, the documents must be created after the hospital’s committee has been engaged in a peer review or quality control review. Two Illinois decisions in 2017 highlight this point and demonstrate how easily this protection can be waived but with more attention can also be preserved.

The most recent case is Grosshuesch v. Edward Hospital, 2017 IL App (2d) 160972. In Grosshuesch, the plaintiff gave birth to a daughter at Edward Hospital. The baby suffered from numerous medical conditions, including necrotizing entercolitis, and died 20 days later. One month later, the Plaintiff contacted the hospital's patient advocate and expressed concern regarding the care and treatment given to her and her daughter. Pursuant to the hospital’s medical staff quality committee (MSQC) charter and its peer-review policy (both enacted in 2008), the plaintiff's concern about the infant’s death constituted "review indicators" resulting in a referral to the MSQC.

The hospital MSQC liaison consulted two expert peer reviewers—each a member of the hospital's medical staff with the same specialty as the physician whose care was being reviewed. One peer reviewer commented on the obstetrical care given to the plaintiff, and one peer reviewer commented on the neonatal care given to the daughter, Isabella. The MSQC liaison then entered her notes on each peer reviewer's input, including the reviewer's conclusion and/or requests for additional information, into an electronic database. Her concern prompted a referral to the medical staff quality committee ("MSQC") for investigation, pursuant to hospital policy. The MSQC liaison’s notes were later considered during MSQC meetings.

The plaintiff sought the liaison’s notes in discovery. On appeal, the hospital argued the liaison notes were protected because those notes were privileged under the Medical Studies Act. Specifically, the hospital argued that the MQSC's peer-review policy provided that if certain indicators are met (such as the death of a patient and a concern raised about that death) then an investigation begins. Because the peer-review policy authorized the investigation, everything that was discovered through that investigation is privileged under the Medical Studies Act.

The Appellate Court rejected this argument.

The appellate court found that documents generated for the use after the peer review committee was convened were protected under the Act, but the documents prepared by the liaison prior to convening the peer review committee were not.

The Second District held:

    [T]he Medical Studies Act 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 another case this year, the opposite result occurred. Earlier this year, the First District extended the protection to notes that were part of the first step into a formal peer review. In Eid v. Loyola Univ. Med. Ctr., 2017 IL App (1st) 143967. In Eid, information generated for use by a hospital peer-review committee was privileged where a committee designee, pursuant to his authority under hospital bylaws, began an investigation of a patient's treatment and instructed another committee member to collect information.

Specifically, after a child died following surgery, the hospital's risk manager, who was also a member of the peer-review committee, began contacting individuals to preserve records. She also contacted the chair of the peer-review committee who instructed her to investigate the incident on the committee's behalf from a quality perspective. The chair averred that the committee directed and empowered individuals to assemble information about incidents and to report the information back to the committee for its use in evaluating and improving the quality of patient care. The risk manager, he further averred, was such a designee in this instance.

In Eid, the First District upheld the trial court's finding that the privilege applied to documents generated by the risk manager after she obtained the chair's directive on the committee's behalf. The Court noted that the 1995 amendment to the Medical Studies Act provided that "'designees'" could create or generate information covered by the statute. Thus, if the risk manager and the chair were designees under the Medical Studies Act, the documents were privileged. Id. In assessing this question, the court rejected the plaintiffs' argument that the privilege does not apply to information generated before the peer-review committee, acting as a whole, either becomes aware of an incident or is engaged in the peer-review process.

The primary difference between the outcome in Grosshuesch and Eid was that in Grosshuesch the documents were generated by the liaison prior the formal institution of a peer review committee whereas in Eid, the documents were generated after the risk manager had obtained the chair's directive on the peer review committee's behalf.

The lesson of Grosshuesch is that simply having a policy to institute a peer review committee may not be enough to extend the protections granted under the Medical Studies Act. The protection may only extend to those documents generated as a result of a proper peer and quality control committee review. It is important to note that the Medical Studies Act does not prevent the Patient’s medical records from being admissible in evidence even where the medical records are created following the institution of a peer review committee. The Medical Studies Act only applies to records prepared as part of a peer review and quality control committee.

The attorneys at McKenna Storer are available to offer additional information and guidance about this and other topics in healthcare law. Contact Kristin Tauras.

Categories General Litigation



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