ILLINOIS SUPREME COURT USES DICTIONARY TO THWART STATUTORY PRIVILEGES
By: Mary M. Cunningham
Illinois Courts have consistently whittled away the Medical Studies Act and other statutes which outline a statutory privilege of confidentiality for matters of credentialing and peer review. In furtherance of its tradition, the Illinois Supreme Court further undermines the concept of statutory privilege in its recent decision in Klaine v. Southern Illinois Hospital Services (“SIHS”), et al. 2016 IL 118217 (Ill. S. Ct.)
In this case, the plaintiff filed a medical malpractice lawsuit and, in an amended pleading, added a count alleging that the defendant SIHS negligently credentialed the defendant doctor. The plaintiff served discovery requests to the Hospital seeking the doctor’s credentialing documents, including multiple applications for staff privileges and a case list of surgical procedures. The hospital claimed that these documents were privileged and non-discoverable, citing to the plain language of Section 15(h) of the Credentials Act, which states in pertinent part:
”[A]ny credentials data collected or obtained by the healthcare entity, healthcare plan or hospital shall be confidential as provided by law, and otherwise may not be re-disclosed without written consent of the healthcare professional, except that in any proceeding to challenge credentialing or re-credentialing, or in any judicial review, the claim of confidentiality shall not be invoked to deny a healthcare professional, healthcare entity, healthcare plan, or hospital access to or use of credential data . . .” See 410 ILCS 517/1 et seq. (2012)
Nonetheless, the trial court found that the documents were not privileged.
The hospital appealed to the Illinois Appellate Court, which basically affirmed the trial court. In an effort to strictly construe the language of the Credentials Act, the Appellate Court made a distinction between the meanings of the word “confidential” and “privilege”. Recognizing that privileges are strictly construed as exceptions to a general duty to disclose and are therefore not favored, the Appellate Court held that “there is no general principle under Illinois law that provides that information that is otherwise discoverable is privileged because it is confidential”. In other words, just because a document is “confidential”, it does not mean that it is not relevant and privileged from disclosure.
In its appeal to the Illinois Supreme Court, the defendant health system once again appealed to the Supreme Court to find that the plain language of the statute required a finding that “confidential” credentialing documents are privileged from disclosure. The Illinois Supreme Court refused to do so.
Although it recognized that the purpose of the Credentials Act was to standardize, streamline, and regulate credentialing data for use in assessing qualifications of healthcare professionals, it adopted the Appellate Court’s distinction between “confidential” and “privileged” documents. In fact, the Supreme Court relied on and spelled out Webster’s Third New International Dictionary for its definitions. A “confidential” provision in a statute, it concluded, does not create an automatic bar to discovery. “Information, though confidential, may be highly relevant to matters at issue in a trial and therefore critical to the truth seeking process”. Because the plaintiff had a count pending for negligent credentialing, the court felt that the documents were discoverable. The court even stated “in fact, we fail to see how a cause of action for negligent credentialing could proceed if we were to deny plaintiff’s access to this information”.
The Supreme Court also refused to acknowledge that the language of the Medical Studies Act, which provides that all information used in the course of internal quality control is “privileged”, “strictly confidential”, and “shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person” protects the documents. It cited Frigo v. Silver Cross Hospital and Medical Center, 377 Ill.App.3d 43 (2007), which ruled that information sought in a negligent credentialing case was not privileged, because the Medical Studies Act was never intended to shield hospitals from potential liability.
The Illinois Supreme Court said “we believe that if this court made such an expansive reading of the Act, it would eliminate actions against hospitals for institutional negligence”.
Finally, because the documents of SIHS included the defendant doctors’ National Practitioner Data Bank information, the court held that it was in fact discoverable in the negligent credentialing claim. Relying on its interpretation of the Healthcare Quality Improvement Act and its Codes of Federal Regulations, the court found that it was clear that the information reported to the National Practitioner Data Bank, though confidential, was not privileged from discovery in instances where a lawsuit has been filed against a hospital and the hospital’s knowledge of information regarding the physician’s competence was at issue.
This decision now makes it extremely easy for any plaintiff to add a negligent credentialing count against the hospital in his or her medical malpractice case in order to obtain otherwise “confidential” material. Further, it makes it very difficult for a hospital to refuse to disclose the information.