Posted by Posted authored by Laura Wibberley
Deaths as a result of medical errors have been hailed as the third leading cause of death in the United States. See Martin Makary & Michael Daniel, Medical Error – The Third Leading Cause of Death in the US, 353 BMJ 2139 (2016). In order to improve the quality of safety and treatment rendered to patients, Illinois hospitals engage in the practice of safety and quality investigations. This process involves peer review from various health care practitioners that gather data, records, and other information to analyze an event or occurrence involving patient care. The idea is to use this process as a tool to develop new solutions and safer techniques in the health care setting. To encourage and promote this quality improvement process, Illinois enacted the Illinois Medical Studies Act, 735 ILCS 5/8-2101 et seq, which extends a privilege to certain materials used within this review process. The hope was to encourage health care professionals to actively participate in these review panels voluntarily and candidly regarding their colleagues in a confidential setting. Frigo v. Silver Cross Hosp. & Med. Ctr., 377 Ill. App. 3d 43 (1st Dist. 2011).
Yet, Illinois courts have been cracking the whip towards the scope of this privilege. The Illinois Supreme Court from the start declined to adopt a broad privilege finding that the Act should not be used to protect medical facilities from malpractice liability. Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993). Illinois courts since have strictly held that the privilege extends only to the information collected and reviewed during the committee’s formal investigation. Grossheusch v. Edward Hospital, 2017 IL App (2d) 160972. This means that all information generated before and after the review are discoverable, even if the information was considered by the committee in their review.
Surprisingly, Illinois courts have been breathing new life into the idea that this information should remain confidential and privileged. The First District Illinois Appellate Court recently confirmed that the federal Patient Safety and Quality Improvement Act creates another viable option for the institution of the privilege and protection of the information generated in the peer review and quality investigation process. See Daley v. Teruel, 2018 IL (1st) 170891. This Act creates a much broader privilege of protection over this information than that of the Illinois Medical Studies Act.
In Daley v. Teruel, the First District Illinois Appellate Court affirmed the applicability of The Patient Safety Act in Illinois and established criteria for this privilege to apply, (1) the facility must be a statutorily defined provider; (2) the collected information must be sent to a federally certified patient safety organization; and (3) the information must constitute “patient safety work product.” Daley, 2018 IL (1st) 170891, ¶33-35. The Court further provided that “patient safety work product” requires that the information must be developed by a provider for the purpose of reporting to a patient safety organization, that information then must have the ability to improve the quality of health care and patient safety, and finally, that information must actually be reported to the patient safety organization. Id. at ¶ 38. Thus, as long as the materials satisfy these criteria, and do not fall under the exceptions, the materials will be privileged despite the exact timing of the initiation of the investigation. This decision represents only the second opinion regarding the interpretation of the Patient Safety and Quality Improvement Act by the Illinois courts. See also Illinois Dept. of Financial & Prof. Reg. v. Walgreen, Co., 2012 IL App (2d) 110452.
Overall, this decision will certainly create a greater incentive for medical institutions within Illinois to begin utilizing federally certified Patient Safety Organizations for these investigations. Even though this broad privilege now exists and will be more readily utilized by health care facilities in Illinois, the Illinois courts still have not fully expanded upon the various exceptions that exist to the institution of the privilege. The Daley decision will certainly provide additional moment for The Patient Safety and Quality Improvement Act such that there will certainly be many more cases regarding the interpretation of the Act by Illinois courts.
About the Author:
Laura Wibberley is a member of the @theBar Blog Steering Committee. Laura was recently admitted to practice law in the state of Illinois. She graduated Valedictorian from The John Marshall Law School. Laura is now an Associate Attorney for Barker & Castro. She primarily concentrates her practice in the area of medical negligence serving in the defense of hospitals, physicians, and medical staff members. During law school, she was a judicial extern for the Honorable Robert E. Gordon in the First District Illinois Appellate Court. She also served on the board for both The John Marshall Law Review and the John Marshall Moot Court Executive Board.