FORM OVER SUBSTANCE?
By: Mary M. Cunningham
Over the years The Medical Studies Act has been more and more narrowly construed by Illinois Courts. The purpose of The Medical Studies Act is to maintain privilege of all information, interviews, reports, statements, memos, and recommendations or other data of peer review committees which are used in the course of internal quality control for purposes of reducing morbidity and mortality or for improving patient care. Courts have consistently ruled that conversations, documents generated, or data generated before or after the peer review process, including the results of the peer review process, are not privileged. Recently, within months of each other, the Illinois Appellate Courts of the First and Second District both upheld and overruled Medical Studies objections to pre-peer reviewed documents based on the actual forms and procedures used to submit a matter to the Peer Review Committee. The only consistency in the cases is that, despite the nature of the incident, it must be patently obvious – in documents and affidavits – that the matter at issue was investigated and submitted exclusively, directly and per hospital protocol to the actual Peer Review Committee.
In the case of Eid v. Loyola University Medical Center, 2017 IL App (1st) 143967, the First District upheld The Medical Studies Act and the claim of privilege for communications and documentation generated before the review by the committee, but after it was determined that an investigation was warranted. The Court held that these conversations and documents were, in fact, part of the Peer Review process covered by The Act.
The underlying medical malpractice case involved medical treatment resulting in the death of a pediatric patient following a surgery which replaced a pacemaker. The day after the child’s death, Loyola’s Risk Manager and Member of its Peer Review Committee, began the process of preservation of records. She paged the Chairperson of the Peer Review Committee to advise him of the incident; this Chair instructed her to investigate the incident pursuant to the Peer Review Committee’s protocols from a quality perspective. That investigation led to the creation of 13 pages of documents to which Loyola claimed privilege.
The Plaintiff claimed that The Medical Studies Act does not protect against the discovery of information generated before a peer review process. The Plaintiff also claimed that any communications made about the incident prior to the evaluation by the Peer Review Committee was not protected by The Act, even if conversations were part of the hospital’s internal review process. The Plaintiff claimed that the Risk Manager was not acting on behalf of the Peer Review Committee when gathering documents and creating additional documents. The Plaintiff further relied on the existing law that the simple act of furnishing a Peer Review Committee with earlier acquired information is not sufficient to cloak that information with the privilege, and that those communicating were not actually designated to do so by the Peer Review Committee.
The First District Appellate Court disagreed. In formulating its opinion, the Court relied on the affidavits of both the Chairman of the Peer Review Committee as well as the Risk Manager, which outlined the very specific protocols utilized to begin an investigation for the Peer Review Committee. The affidavits articulated their familiarity with the process, their authority under the Peer Review process to determine when investigation is necessary, and what steps are required to perform the investigation. The Court found that information generated by the Risk Manager at the Chair’s directive as a designee of the Peer Review Committee, contributed to the Peer Review Committee’s deliberations and that it was obtained as a part of the information gathering process. The Court further found that The Medical Studies Act clearly identifies that Peer Review Committees “or their designees” could create or generate information protected by The Act’s privilege. As such, the Court found that all communications and documentation generated as a result of the incident by the Peer Review designees, prior to actual evaluation by the Peer Review Committee, was privileged under The Act. The Court took specific pains to highlight that The Medical Studies Act protects the nature and content of an internal review process. There was no question, based on the affidavits presented, that the communications and documents generated were obtained as part of information gathering for the Peer Review process and the documentation, if produced, would have revealed the functioning of the Peer Review Committee’s internal review process.
However, in the recent Second District Appellate case of Nielson v. Swedish American Hospital and Amanda J. Bush, M.D., 2017 IL App (2d) 160743, an Appeal from Winnebago County, the Court found that Quality Control Reports created post-surgery and pre-peer review were not privileged under The Act. In this case, the hospital used a single form entitled “Quality Control Reports” in which it identified occurrences for which the hospital proactively sought information to review. After an alleged negligent surgery, the Plaintiff sought these Quality Control Reports. The Defendant hospital, in an attempt to follow its Medical-Staff and Bylaws, argued that the Quality Control Reports were a part of the Quality Assurance process and that the reports were completed to monitor, evaluate, and improve quality and safety. After the Risk Manager reviewed them, she forwarded them to the hospital’s Peer Review Committee, and the entire process was kept confidential.
After receipt of testimony and affidavits, the Second District Appellate Court found the Quality Control Reports were used to provide information for all occurrences, medical or non-medical. Additionally, they were used in cases where legal action “may be contemplated” or where there was “a potential for a claim or lawsuit.” The Court found that these forms, pursuant to the By-laws, were to be provided to the Risk Management Department “to facilitate follow-up, investigation, resolution, and data collection”. As these reports were deemed to have multiple functions, including that of gathering material and investigation for Peer Review, the Court found that they were not used solely for the purpose of Peer Review, and therefore, not covered under The Act. This Court believed that these forms were in effect Incident Reports which were furnished to the Committee with earlier acquired information and therefore, could not be deemed automatically privileged. Despite the Defendant’s plea that the Court not apply strict chronology to bar the application of The Act because to do so would frustrate the purpose of quality control, the Court could not be assured that these documents were prepared solely for the purpose of Peer Review. The Court rejected the argument that the nurses filling out the forms and the Risk Manager reviewing them were designees as identified under The Medical Studies Act, because it was hospital policy that these forms be filled out in all incidents.
Finally, the Nielson Court identified the Eid case and indicated that it stood for the proposition that “where a member of a Peer Review Committee, acting on its behalf, authorizes an investigation by a designee into a potential quality control issue on the Committee’s behalf, any documents generated thereafter as part of the investigation are privileged.” The Court, therefore, found the Nielson case distinguishable because the designee was not declared until after the Committee became aware of the incident and authorized the investigation; in the Nielson case, there was no designee identified exclusive to the Peer Review Committee.
It appears that Courts want to be able to see a chronology or chain of custody of the documents that are exclusive to the designees of a Peer Review Committee. A single form used to identify any incident is clearly not believed to be exclusive to the Peer Review Committee (despite the nature of the incident). Very specific affidavits of the Members of the Peer Review Committee and their designees, with specific outlines as to the mechanisms required to gather information for the Peer Review process, will be required by the Courts. As the Eid case is precedent in Cook County, it will help defense counsel against the Plaintiff’s bar, as it continues to work to stifle The Medical Studies Act.