News Articles
THE AUDIT TRAIL: RECENT RULING LEVIES SIGNIFICANT SANCTIONS
By: Sean B. Mascarenhas
A recent ruling in a Cook County medical malpractice case saw significant sanctions imposed against a defendant medical center, predominately related to audit trail discovery issues. On January 18, 2022, the Honorable Judge James N. O’Hara entered what he referred to as a “severe sanction:” striking the defendant medical center’s Answer to Plaintiff’s pleadings and granting judgment in favor of Plaintiff and against the Defendant as to the issue of liability. Judge O’Hara ordered that the case proceed as to the issue of damages only.
The ruling has sent reverberations throughout the medical malpractice litigation community and further highlights the emphasis Cook County courts are placing on production of audit trails in all medical malpractice cases. In this 2018 case, Plaintiff Angela Prieto filed a medical malpractice case on behalf of her minor son, alleging medical negligence against the medical center. Judge O’Hara’s January 2022 Memorandum Opinion ruled on various motions for sanctions levied by Plaintiff and on competing motions for sanctions by the Defendant.
To a lay person outside of the medicolegal or tech community, the words “audit trail” are likely (hopefully) meaningless. However, audit trails—and their relevance to discovery in medical negligence matters—have been a longstanding hot button issue in medical malpractice lawsuits. Generally, audit trails are collections of data that record access to an electronic record. For example, audit trails in medical malpractice cases may show who accessed a record and when or may show any changes to the record. Notably, every audit trail is different. Every system is different. But recent developments in Cook County have made it clear courts are favoring production of audit trails in any and all medical malpractice cases.
Right of Access: Court Analysis of Federal Law
As to the Prieto matter, and prior to addressing the facts and sanctions at issue, the Court discussed several aspects of Federal Law which, in its opinion, establish that audit trail data, including metadata associated with a patient’s Electronic Health Record (“EHR”), is part of a patient’s medical record and must be produced. To the Court, it’s all about a patient’s “right to access.”
Specifically, Judge O’Hara referenced the Health Insurance Portability and Accountability Act (“HIPAA”) and the Department of Health and Human Services (“HHS”) publication of a HIPAA’s “right of access” rule. The right of access rule states, in pertinent part, that “an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set.” 45 C.F.R. § 164.524(a)(1). While the Court referenced some exceptions, it went on to note that the HITECH Act of 2009 further expanded the patient right to obtain electronic health records.
Further, the Court went into significant detail discussing “The Cures Act,” which in its opinion was enacted in response to “a growing concern that healthcare software developers and providers sought to restrict the amount and types of information accessible to individuals.” Judge O’Hara highlighted that the Act prohibited information blocking. See January 18, 2022 Memorandum Opinion, Case 2018 L 003531 (hereinafter referred to as “Memorandum Opinion”), pp. 5-6 (NOTE: The memorandum opinion is a matter of public record. A full copy of the opinion can be obtained through Cook County’s Law Division).
Essentially, the Court referenced Federal Law to highlight the importance of a patient’s right to access electronic health information. The key issue, then, would be whether audit trail data is part of the EHR and subject to such right of access provisions. Notably, the plain language of these federal laws and HHS definitions fail to actually use the word “audit trail,” a point often referenced by defense attorneys in discovery disputes. Despite this, the Court noted that the HHS establishes that a patient has a right to “protected health information,” which is defined as “individually identifiable information” transmitted or contained in electronic media. 45 C.F.R. § 164.524(a)(1); 45 C.F.R. 160.103. Further, “individually identifiable information” is that which is created by a health care provider, and which relates to the provision of health care to an individual and can be used to identify the patient. 45 C.F.R. § 160.103.
The Court further noted that new rules from the Cures Act require, among other things, that electronic health information be accessible and/or easily exportable to a patient. Under the Federal Law of the Cures Act, failure to produce such information constitutes “information blocking.” 45 C.F.R. § 171.103(a). Judge O’Hara asserted that the information subject to the information blocking decisions, as shown by Federal Law, includes metadata and/or extra information about data, including who creates the data and when it was created. See Memorandum Opinion, p. 6.
Judge O’Hara concluded, based on the forgoing analysis, that Federal Law says audit trail data, including metadata, is part of the right of access and failure to produce such data is information blocking. Id.
Discovery Issues in the Prieto Matter
The Court then went into a lengthy, comprehensive, and often-times scathing discussion of the audit trail discovery issues in this matter. Plaintiff first issued discovery in January 2019, requesting all electronic health record information, including, as the Court emphasized, fetal monitoring strips and audit trails. Ultimately, after granting Defendant’s motion for entry of a protective order relating to the audit trail and EHR, the Defendant responded to discovery on June 24, 2019, which Judge O’Hara noted was five months since issuance. According to the Opinion, at that time, the Defendant produced an “audit log” and an affidavit of an individual who stated the access log and audit trail are interchangeable. Here, the Court emphasized, in italics, that “This would turn out to be false.” See Memorandum Opinion, p. 8. The Memorandum Opinion is replete with emphatic criticisms regarding how discovery proceeded in this matter.
The On-Site Inspection
Ultimately, after additional court appearances and a motion to compel by the Plaintiff, the Court granted a motion for an on-site inspection of the medical center’s EHR systems, over objection. This inspection is a critical aspect in the Court’s analysis. The Judge stated that the inspection eventually proceeded, under Court supervision, on February 28, 2020. According to the Opinion, this on-site inspection revealed “many aspects of EHR discovery that were either withheld, misrepresented, or otherwise not produced since Prieto made her requests thirteen months earlier” and listed “notable events” observed. See Memorandum Opinion, p. 9.
During inspection, the Defendant highlighted concerns that it involved viewing of “proprietary” information of the medical record software company (the company that developed the EMR’s system) and that production of such information could be completed after discussion with the company’s contract attorneys. The Court reiterated it required full production of this information and all other information listed in the notable events, over objections.
Combatting Motions for Sanctions
As a result of the inspection, Plaintiff was permitted to issue supplemental discovery in March 2020. The Court noted further delays and criticized Defendant for again failing to comply with discovery. Plaintiff ultimately filed her first Motion for Sanctions on June 4, 2020. Notably, the Defendant filed its own motion, arguing that Plaintiff’s counsel and site inspection expert knowingly viewed Epic’s confidential and proprietary information. Plaintiff’s counsel was granted leave to issue discovery related to the proprietary issues and the Court ordered in camera inspection of the documents claimed to be proprietary. The Court emphasized that this discovery was not answered nor documents produced at any time during the ongoing litigation.
After multiple additional motions for sanctions, response memorandums, and ongoing discovery, the Court found the various motions for sanctions were ripe for ruling.
The Ultimate Sanction
Illinois Supreme Court Rule 219(c) allows a court to enter in sanctions against a party for failure to comply with discovery rules and court orders. Judge O’Hara noted case law that states dismissal or entry of a default judgment are “drastic sanctions” justified only where there is a deliberate and contumacious disregard for court authority. See, Koppel v. Michael, 374 Ill. App. 3d 998, 1004 (1st Dist., 2007).
From the outset of this section, the Court asserted that the Defendant had not responded to supplemental discovery issued related to proprietary information. Defendant argued that no court orders were entered regarding such discovery and, as such, it was not in violation. The Court disagreed, stating the argument was “nonsense” and that Defendant was over 17 months delinquent on that discovery. The Court further asserted it was over 23 months since initial discovery was issued.
In lengthy discussion, the Court repeatedly referenced that it had ordered full production over objections on multiple occasions. It reiterated the issues observed at the on-site inspection and the issues it took with prior and subsequent affidavits of individuals from the Defendant facility, going as far as to say the Defendant “supported its discovery mishaps by tendering affidavits that contain seemingly false information.” See Memorandum Opinion, p. 21.
Judge O’Hara dismissed further arguments by the Defendant objecting to the one-sided discovery in this matter and arguments regarding delays in discovery caused by the COVID-19 pandemic, stating that General Administrative Orders mandated discovery was to continue as scheduled.
The Court emphasized that the 2018 case remained at a very early stage due to these discovery issues. In considering all relevant factors, the “repeated discovery delays” amounted to contumacious disregard for the Court’s orders and Supreme Court Discovery rules. As such, the Court noted this conduct “justified imposition of a severe sanction: “[Defendant’s] answer is stricken, and judgment is entered against [Defendant] and in favor of Prieto on the issue of liability.” See Memorandum Opinion, p. 22.
Reactions and Other Developments
Notably, unrelated to the Prieto matter, in 2020, Cook County’s Law Division issued new case management form-orders to be used in Category 1 and Category 2 Cases. The Category 2 order includes language that automatically mandates disclosure of a defendant’s audit trail, if any, by a certain date. In fact, the section of this order requires that the “audit trail [be] produced” at the same time that discovery requests are issued and on the same date a HIPAA order is entered. In other words, this order requires blanket production of audit trails in all Category 2 cases, regardless of whether or not Plaintiff or some other party has requested them. Like the Prieto ruling, this order has caused significant reverberations throughout the defense community and drastically changed how discovery is conducted in Cook County, arguably conflicting with the requirement that discovery in each case be analyzed on a case-by-case basis.
As to the Prieto decision, the Court’s ruling admittedly issued severe sanctions for failure to fully produce requested audit trail data. It bears repeating that, despite the somewhat creative analysis of Federal Law outlined in the order, there is no specific law whose plain language suggests or establishes that an audit trail is part of the medical record. Further, as referenced by the HHS, obtaining and producing audit trail data is often an extremely burdensome task. Any assumption that obtaining audit trail data is easy for these institutions and firms is not well founded. While discovery delays in production may seem unreasonable to other parties, the efforts required to fully access and produce audit trail data often involve significant hurdles. These include securing the suitable IT personnel and working with the necessary individuals to gain a working understanding of the software and technology required to fully access and produce that information. And of course, no two facilities and their systems are exactly the same.
In its current state, it appears the Prieto matter is proceeding and only as to the issues of damages. We will continue to monitor the case as it develops, including as to any potential additional motions, appeals, or other developments.
A recent ruling in a Cook County medical malpractice case saw significant sanctions imposed against a defendant medical center, predominately related to audit trail discovery issues. On January 18, 2022, the Honorable Judge James N. O’Hara entered what he referred to as a “severe sanction:” striking the defendant medical center’s Answer to Plaintiff’s pleadings and granting judgment in favor of Plaintiff and against the Defendant as to the issue of liability. Judge O’Hara ordered that the case proceed as to the issue of damages only.
The ruling has sent reverberations throughout the medical malpractice litigation community and further highlights the emphasis Cook County courts are placing on production of audit trails in all medical malpractice cases. In this 2018 case, Plaintiff Angela Prieto filed a medical malpractice case on behalf of her minor son, alleging medical negligence against the medical center. Judge O’Hara’s January 2022 Memorandum Opinion ruled on various motions for sanctions levied by Plaintiff and on competing motions for sanctions by the Defendant.
To a lay person outside of the medicolegal or tech community, the words “audit trail” are likely (hopefully) meaningless. However, audit trails—and their relevance to discovery in medical negligence matters—have been a longstanding hot button issue in medical malpractice lawsuits. Generally, audit trails are collections of data that record access to an electronic record. For example, audit trails in medical malpractice cases may show who accessed a record and when or may show any changes to the record. Notably, every audit trail is different. Every system is different. But recent developments in Cook County have made it clear courts are favoring production of audit trails in any and all medical malpractice cases.
Right of Access: Court Analysis of Federal Law
As to the Prieto matter, and prior to addressing the facts and sanctions at issue, the Court discussed several aspects of Federal Law which, in its opinion, establish that audit trail data, including metadata associated with a patient’s Electronic Health Record (“EHR”), is part of a patient’s medical record and must be produced. To the Court, it’s all about a patient’s “right to access.”
Specifically, Judge O’Hara referenced the Health Insurance Portability and Accountability Act (“HIPAA”) and the Department of Health and Human Services (“HHS”) publication of a HIPAA’s “right of access” rule. The right of access rule states, in pertinent part, that “an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set.” 45 C.F.R. § 164.524(a)(1). While the Court referenced some exceptions, it went on to note that the HITECH Act of 2009 further expanded the patient right to obtain electronic health records.
Further, the Court went into significant detail discussing “The Cures Act,” which in its opinion was enacted in response to “a growing concern that healthcare software developers and providers sought to restrict the amount and types of information accessible to individuals.” Judge O’Hara highlighted that the Act prohibited information blocking. See January 18, 2022 Memorandum Opinion, Case 2018 L 003531 (hereinafter referred to as “Memorandum Opinion”), pp. 5-6 (NOTE: The memorandum opinion is a matter of public record. A full copy of the opinion can be obtained through Cook County’s Law Division).
Essentially, the Court referenced Federal Law to highlight the importance of a patient’s right to access electronic health information. The key issue, then, would be whether audit trail data is part of the EHR and subject to such right of access provisions. Notably, the plain language of these federal laws and HHS definitions fail to actually use the word “audit trail,” a point often referenced by defense attorneys in discovery disputes. Despite this, the Court noted that the HHS establishes that a patient has a right to “protected health information,” which is defined as “individually identifiable information” transmitted or contained in electronic media. 45 C.F.R. § 164.524(a)(1); 45 C.F.R. 160.103. Further, “individually identifiable information” is that which is created by a health care provider, and which relates to the provision of health care to an individual and can be used to identify the patient. 45 C.F.R. § 160.103.
The Court further noted that new rules from the Cures Act require, among other things, that electronic health information be accessible and/or easily exportable to a patient. Under the Federal Law of the Cures Act, failure to produce such information constitutes “information blocking.” 45 C.F.R. § 171.103(a). Judge O’Hara asserted that the information subject to the information blocking decisions, as shown by Federal Law, includes metadata and/or extra information about data, including who creates the data and when it was created. See Memorandum Opinion, p. 6.
Judge O’Hara concluded, based on the forgoing analysis, that Federal Law says audit trail data, including metadata, is part of the right of access and failure to produce such data is information blocking. Id.
Discovery Issues in the Prieto Matter
The Court then went into a lengthy, comprehensive, and often-times scathing discussion of the audit trail discovery issues in this matter. Plaintiff first issued discovery in January 2019, requesting all electronic health record information, including, as the Court emphasized, fetal monitoring strips and audit trails. Ultimately, after granting Defendant’s motion for entry of a protective order relating to the audit trail and EHR, the Defendant responded to discovery on June 24, 2019, which Judge O’Hara noted was five months since issuance. According to the Opinion, at that time, the Defendant produced an “audit log” and an affidavit of an individual who stated the access log and audit trail are interchangeable. Here, the Court emphasized, in italics, that “This would turn out to be false.” See Memorandum Opinion, p. 8. The Memorandum Opinion is replete with emphatic criticisms regarding how discovery proceeded in this matter.
The On-Site Inspection
Ultimately, after additional court appearances and a motion to compel by the Plaintiff, the Court granted a motion for an on-site inspection of the medical center’s EHR systems, over objection. This inspection is a critical aspect in the Court’s analysis. The Judge stated that the inspection eventually proceeded, under Court supervision, on February 28, 2020. According to the Opinion, this on-site inspection revealed “many aspects of EHR discovery that were either withheld, misrepresented, or otherwise not produced since Prieto made her requests thirteen months earlier” and listed “notable events” observed. See Memorandum Opinion, p. 9.
During inspection, the Defendant highlighted concerns that it involved viewing of “proprietary” information of the medical record software company (the company that developed the EMR’s system) and that production of such information could be completed after discussion with the company’s contract attorneys. The Court reiterated it required full production of this information and all other information listed in the notable events, over objections.
Combatting Motions for Sanctions
As a result of the inspection, Plaintiff was permitted to issue supplemental discovery in March 2020. The Court noted further delays and criticized Defendant for again failing to comply with discovery. Plaintiff ultimately filed her first Motion for Sanctions on June 4, 2020. Notably, the Defendant filed its own motion, arguing that Plaintiff’s counsel and site inspection expert knowingly viewed Epic’s confidential and proprietary information. Plaintiff’s counsel was granted leave to issue discovery related to the proprietary issues and the Court ordered in camera inspection of the documents claimed to be proprietary. The Court emphasized that this discovery was not answered nor documents produced at any time during the ongoing litigation.
After multiple additional motions for sanctions, response memorandums, and ongoing discovery, the Court found the various motions for sanctions were ripe for ruling.
The Ultimate Sanction
Illinois Supreme Court Rule 219(c) allows a court to enter in sanctions against a party for failure to comply with discovery rules and court orders. Judge O’Hara noted case law that states dismissal or entry of a default judgment are “drastic sanctions” justified only where there is a deliberate and contumacious disregard for court authority. See, Koppel v. Michael, 374 Ill. App. 3d 998, 1004 (1st Dist., 2007).
From the outset of this section, the Court asserted that the Defendant had not responded to supplemental discovery issued related to proprietary information. Defendant argued that no court orders were entered regarding such discovery and, as such, it was not in violation. The Court disagreed, stating the argument was “nonsense” and that Defendant was over 17 months delinquent on that discovery. The Court further asserted it was over 23 months since initial discovery was issued.
In lengthy discussion, the Court repeatedly referenced that it had ordered full production over objections on multiple occasions. It reiterated the issues observed at the on-site inspection and the issues it took with prior and subsequent affidavits of individuals from the Defendant facility, going as far as to say the Defendant “supported its discovery mishaps by tendering affidavits that contain seemingly false information.” See Memorandum Opinion, p. 21.
Judge O’Hara dismissed further arguments by the Defendant objecting to the one-sided discovery in this matter and arguments regarding delays in discovery caused by the COVID-19 pandemic, stating that General Administrative Orders mandated discovery was to continue as scheduled.
The Court emphasized that the 2018 case remained at a very early stage due to these discovery issues. In considering all relevant factors, the “repeated discovery delays” amounted to contumacious disregard for the Court’s orders and Supreme Court Discovery rules. As such, the Court noted this conduct “justified imposition of a severe sanction: “[Defendant’s] answer is stricken, and judgment is entered against [Defendant] and in favor of Prieto on the issue of liability.” See Memorandum Opinion, p. 22.
Reactions and Other Developments
Notably, unrelated to the Prieto matter, in 2020, Cook County’s Law Division issued new case management form-orders to be used in Category 1 and Category 2 Cases. The Category 2 order includes language that automatically mandates disclosure of a defendant’s audit trail, if any, by a certain date. In fact, the section of this order requires that the “audit trail [be] produced” at the same time that discovery requests are issued and on the same date a HIPAA order is entered. In other words, this order requires blanket production of audit trails in all Category 2 cases, regardless of whether or not Plaintiff or some other party has requested them. Like the Prieto ruling, this order has caused significant reverberations throughout the defense community and drastically changed how discovery is conducted in Cook County, arguably conflicting with the requirement that discovery in each case be analyzed on a case-by-case basis.
As to the Prieto decision, the Court’s ruling admittedly issued severe sanctions for failure to fully produce requested audit trail data. It bears repeating that, despite the somewhat creative analysis of Federal Law outlined in the order, there is no specific law whose plain language suggests or establishes that an audit trail is part of the medical record. Further, as referenced by the HHS, obtaining and producing audit trail data is often an extremely burdensome task. Any assumption that obtaining audit trail data is easy for these institutions and firms is not well founded. While discovery delays in production may seem unreasonable to other parties, the efforts required to fully access and produce audit trail data often involve significant hurdles. These include securing the suitable IT personnel and working with the necessary individuals to gain a working understanding of the software and technology required to fully access and produce that information. And of course, no two facilities and their systems are exactly the same.
In its current state, it appears the Prieto matter is proceeding and only as to the issues of damages. We will continue to monitor the case as it develops, including as to any potential additional motions, appeals, or other developments.
DOESN'T EVERY DAY COUNT?
By: Mary M. Cunningham
Recently, a Federal Court in the Northern District of Illinois ruled that Leap Day did not count as an extra day in its determination that a case was timely filed two years and one day after the initial injury. In Mascari vs. Divisions, Inc., et al., 3:21 – cv-50091, the defense argued that the personal injury slip and fall lawsuit, filed February 10, 2021, was filed on the two-year anniversary of the accrual of the claim, but that the two-year time period in question included Leap Day in 2020. Thus, they argued, the two-year anniversary of the injury fell two years and one day after the injury, and therefore the case was not timely filed.
In denying the motion, the Court found that “calendar days” do not count to calculate the Statute of Limitations, but the “anniversary date” of the injury did. The Court reasoned that the Illinois statute defining terms of time in which to file, were “unambiguous”, and it relied on the statute’s definition of a “year”, which states “a calendar year unless otherwise expressed, and the word ‘year’ alone is equivalent to the expression of ‘the year of our Lord’ ”. Further, the statute in question defined computation of the time in which “any act must be done by law” as “excluding the first day and including the last” 5 Ill. Comp. Stat.; Section 70/1.1 et seq. This appeared to the Court to be an express adoption of the anniversary method. Although the Court appreciated that humankind has been fascinated with time for ages, it found that the defendants’ fixation on “their own time” lead to a misreading of Illinois statutes.
When the Court looked at the case law in Illinois for filing deadlines, it acknowledged that Illinois courts have not really resolved the issue of the computation method by calendar day or anniversary date. It nonetheless cited to and relied on an Illinois Pension Code case, which had resolved a conflict between the Metropolitan Sanitary District of Greater Chicago and some of its employees who alleged that they were not paid maximum benefits because the company did not calculate pension owed by the number of days they worked (including Leap Day), but calculated benefits by the number of weeks worked per year. Cella v. Sanitary District Employees’ and Trustees’ Annuity et al., 639 N. E. 2d, 1335 (First Dist. 1994). The Mascari Court based its opinion on the Cella Court’s finding that the Illinois Pension Code was unambiguous in articulating how to compute pension benefits. As the legislature has not been any more specific since that case, the Mascari Court found that a year remains a year, not 365 days.
So, a Federal Court has decided, based on its interpretation of a Pension Code case – not a Statute of Limitations case - that Leap Day does not count in calculating the Statute of Limitations.
Leap Day, now referred to February 29, occurs generally every four years; it is a day added to the calendar as a corrective measure because the Earth does not orbit the sun in exactly 365 days. It was initially introduced to the world by Julius Caesar in 45 B.C., and modified by Pope Gregory XIII in 1582 with the introduction of the Gregorian calendar. This system, used almost universally in the world today, is a more precise method of calculating leap years. Without the extra day, we would lose six hours a year, and after 100 years, the calendar would be off by 24 days. Clearly, calendar days which are used to balance time so that we are aligned with the universe are accepted worldwide as essential days.
Leap Day has been the calendar day anniversary of very important historical events: in 1504, history suggests that Christopher Columbus used his knowledge of the lunar eclipse on Leap Day to convince Jamaican natives to help him with needed supplies. St Petersburg, Florida was incorporated on February 29, 1892. In 1944, General Douglas MacArthur invaded the Admiralty Islands on February 29. And, in 1980, the famous Gordie Howe of the Hartford Whalers made NHL history when he scored his 800th goal. Surely, these historical events are not insignificant because they happened on Leap Day.
Those born on the calendar day February 29 are called ‘Leaplings”. Jimmy Dorsey, famous sax player, Al Rosen, famous baseball player, and coach, Jack Lousma, colonel, astronaut, and politician, Pedro Sanchez, Prime Minister of Spain, and Jessica Long, American Paralympic swimmer, were born on February 29. Obviously, this is a memorable and celebrated day for them. And what about those like Jerome Lawrence, American playwright and author, Akira Yamada, Japanese scholar, and philanthropist, Eva Szekely, Hungarian Gold Medalist swimmer, and the beloved Davy Jones, English singer/songwriter and Monkee who died on February 29. Leap Day was their final day.
Leap Day has been a specific calendar day rich in folklore. In Irish legend, on Leap Day, a woman can propose to a man, instead of the then known conventional method of the man proposing to the woman. In some European countries of old, legal penalties were provided to men who refused to marry a woman who proposed on Leap Day. Law in the Middle Ages acknowledged the existence and importance of Leap Day.
One just cannot get around the established fact that Leap Day is a calendar day.
And doesn’t every day count? The famous Roman poet Horace championed the concept of “Carpe Diem”, or “Seize the Day!”, acknowledging that we should live each day to its fullest as we might not have a tomorrow. This has generated inspirational encouragement used by many throughout the years, taught to us by our parents, who learned it from theirs, and that which we teach our children: “Make every day count” or, “Today is the First Day of the Rest of your Life”, or “What a difference a Day makes”, and “There can be not today without yesterday, nor tomorrow without today”. Lest we not forget Psalms 90:12 “Teach us to number our days so that we may grow a heart of wisdom”.
Surely, as every day counts, we should follow the calendar day approach when it comes to calculating a Statute of Limitations involving Leap Days. Leap Days are unlike national holidays in which offices, courts, and businesses close. Like any other day, we are still charged by utility companies and vendors for products and services we use on Leap Days. We commute to work, go shopping and take care of the yard, kids, dogs, or cats, and live our lives as we do every other day. We are still subject to the laws of the states and nation on Leap Day. We are not immune from natural disaster, tragedy, or death on Leap Day. Why should a plaintiff be able to avoid the day in filing his lawsuit? We should make every day count!
Recently, a Federal Court in the Northern District of Illinois ruled that Leap Day did not count as an extra day in its determination that a case was timely filed two years and one day after the initial injury. In Mascari vs. Divisions, Inc., et al., 3:21 – cv-50091, the defense argued that the personal injury slip and fall lawsuit, filed February 10, 2021, was filed on the two-year anniversary of the accrual of the claim, but that the two-year time period in question included Leap Day in 2020. Thus, they argued, the two-year anniversary of the injury fell two years and one day after the injury, and therefore the case was not timely filed.
In denying the motion, the Court found that “calendar days” do not count to calculate the Statute of Limitations, but the “anniversary date” of the injury did. The Court reasoned that the Illinois statute defining terms of time in which to file, were “unambiguous”, and it relied on the statute’s definition of a “year”, which states “a calendar year unless otherwise expressed, and the word ‘year’ alone is equivalent to the expression of ‘the year of our Lord’ ”. Further, the statute in question defined computation of the time in which “any act must be done by law” as “excluding the first day and including the last” 5 Ill. Comp. Stat.; Section 70/1.1 et seq. This appeared to the Court to be an express adoption of the anniversary method. Although the Court appreciated that humankind has been fascinated with time for ages, it found that the defendants’ fixation on “their own time” lead to a misreading of Illinois statutes.
When the Court looked at the case law in Illinois for filing deadlines, it acknowledged that Illinois courts have not really resolved the issue of the computation method by calendar day or anniversary date. It nonetheless cited to and relied on an Illinois Pension Code case, which had resolved a conflict between the Metropolitan Sanitary District of Greater Chicago and some of its employees who alleged that they were not paid maximum benefits because the company did not calculate pension owed by the number of days they worked (including Leap Day), but calculated benefits by the number of weeks worked per year. Cella v. Sanitary District Employees’ and Trustees’ Annuity et al., 639 N. E. 2d, 1335 (First Dist. 1994). The Mascari Court based its opinion on the Cella Court’s finding that the Illinois Pension Code was unambiguous in articulating how to compute pension benefits. As the legislature has not been any more specific since that case, the Mascari Court found that a year remains a year, not 365 days.
So, a Federal Court has decided, based on its interpretation of a Pension Code case – not a Statute of Limitations case - that Leap Day does not count in calculating the Statute of Limitations.
Leap Day, now referred to February 29, occurs generally every four years; it is a day added to the calendar as a corrective measure because the Earth does not orbit the sun in exactly 365 days. It was initially introduced to the world by Julius Caesar in 45 B.C., and modified by Pope Gregory XIII in 1582 with the introduction of the Gregorian calendar. This system, used almost universally in the world today, is a more precise method of calculating leap years. Without the extra day, we would lose six hours a year, and after 100 years, the calendar would be off by 24 days. Clearly, calendar days which are used to balance time so that we are aligned with the universe are accepted worldwide as essential days.
Leap Day has been the calendar day anniversary of very important historical events: in 1504, history suggests that Christopher Columbus used his knowledge of the lunar eclipse on Leap Day to convince Jamaican natives to help him with needed supplies. St Petersburg, Florida was incorporated on February 29, 1892. In 1944, General Douglas MacArthur invaded the Admiralty Islands on February 29. And, in 1980, the famous Gordie Howe of the Hartford Whalers made NHL history when he scored his 800th goal. Surely, these historical events are not insignificant because they happened on Leap Day.
Those born on the calendar day February 29 are called ‘Leaplings”. Jimmy Dorsey, famous sax player, Al Rosen, famous baseball player, and coach, Jack Lousma, colonel, astronaut, and politician, Pedro Sanchez, Prime Minister of Spain, and Jessica Long, American Paralympic swimmer, were born on February 29. Obviously, this is a memorable and celebrated day for them. And what about those like Jerome Lawrence, American playwright and author, Akira Yamada, Japanese scholar, and philanthropist, Eva Szekely, Hungarian Gold Medalist swimmer, and the beloved Davy Jones, English singer/songwriter and Monkee who died on February 29. Leap Day was their final day.
Leap Day has been a specific calendar day rich in folklore. In Irish legend, on Leap Day, a woman can propose to a man, instead of the then known conventional method of the man proposing to the woman. In some European countries of old, legal penalties were provided to men who refused to marry a woman who proposed on Leap Day. Law in the Middle Ages acknowledged the existence and importance of Leap Day.
One just cannot get around the established fact that Leap Day is a calendar day.
And doesn’t every day count? The famous Roman poet Horace championed the concept of “Carpe Diem”, or “Seize the Day!”, acknowledging that we should live each day to its fullest as we might not have a tomorrow. This has generated inspirational encouragement used by many throughout the years, taught to us by our parents, who learned it from theirs, and that which we teach our children: “Make every day count” or, “Today is the First Day of the Rest of your Life”, or “What a difference a Day makes”, and “There can be not today without yesterday, nor tomorrow without today”. Lest we not forget Psalms 90:12 “Teach us to number our days so that we may grow a heart of wisdom”.
Surely, as every day counts, we should follow the calendar day approach when it comes to calculating a Statute of Limitations involving Leap Days. Leap Days are unlike national holidays in which offices, courts, and businesses close. Like any other day, we are still charged by utility companies and vendors for products and services we use on Leap Days. We commute to work, go shopping and take care of the yard, kids, dogs, or cats, and live our lives as we do every other day. We are still subject to the laws of the states and nation on Leap Day. We are not immune from natural disaster, tragedy, or death on Leap Day. Why should a plaintiff be able to avoid the day in filing his lawsuit? We should make every day count!
THE NON-COMPETE CLAUSE: IS IT REASONABLE?
By: Melissa Y. Gandhi
You are about to accept a new job, one that meets your goals professionally and personally. You envision that this clinic, hospital, practice group is where you will dedicate your career. However, as is the case more often than not, there may be a point when you need to move on. Where you go next will, in part, be determined by your contract and the “Covenant not to Compete” clause contained therein.
There is no specific statute in Illinois governing noncompete in medical employment contracts. The American Medical Association code of ethics seem to disfavor covenants not to compete, finding that it can actually be harmful to patient care by disrupting continuity of care, and limiting access to care. See AMA Code of Medical Ethics Opinion 11.2.3.1. Regardless, this provides for no legal framework and enforceability is relied on general principals of contract law and Illinois prior court rulings (also known as “case law”). Even if a physician has entered into a valid contract with its employer, the noncompete clause must be “reasonable.” To be reasonable, the restrictive covenant must be 1) no greater than is required for the protection of a legitimate business interest of the employer; 2) does not impose undue hardship on the employee; and 3) it is not injurious to the public. Naperville Women's Healthcare, P.C. v. Carney-Siswick, 2018 IL App (2d) 170401-U, P47 (2018) citing Reliable Fire Equip. Co. v. Arredondo, 965 N.E.2d 393, 397 (2015).
As a general proposition, Illinois courts disfavor restrictions on trade and postemployment restrictive covenants. This has shown to be less so in the context of physician employment contracts. See e.g., Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52 (2006). In this Illinois Supreme Court case, the restrictive covenant at issue provided that appellant, Dr. Mohanty “shall not practice medicine within a five-mile radius of any Clinic office or at any of the four restricted hospitals [St. Mary of Nazareth, Norwegian American, St. Elizabeth, and Sacred Heart], for a period of five years.” Mohanty, 225 Ill. 2d at 57. Dr. Mohanty argued that the restrictive covenant was invalid because "the duration of the restrictive covenant, that is five (5) years, and its geographical limits, that is five (5) miles, are unnecessary to protect the economic or business interest of [the appellees] and therefore is excessive, unjust, unreasonable, unlawful, and unenforceable.” Id. at 58. The Court affirmed the Appellate Court decision, agreeing that this noncompete clause was reasonable where restriction on the appellant was just on his specialty practice (in this case, cardiology) and not all areas of medicine. In addition, he was “free to practice medicine outside the five-mile limit, which, given the heavily populated Chicago metropolitan area, would not deprive [the appellant] of employment." Id. at 76. The Court concluded that based on the totality of circumstances, the restriction on the practice of medicine was not unreasonable and was “not greater than necessary to [appellants] interests.” Id. at 77.
Why is it relevant that the covenant did not restrict the physician from practicing medicine in its entirety versus just his specialty? If a covenant restricts the employer from his or her entire skillset, then it is held to be unreasonable. This is because, as stated above, a restriction cannot extend beyond those necessary to protect any legitimate interest of the employer. House of Vision, Inc. v. Hiyane, 37 Ill. 2d 32, 39 (1967). If a medical group only proffers specific medical care (e.g., cardiology) to the public, then an employee physician practicing medicine in a different specialty (e.g., internal medicine), would not interfere with the financial or other legitimate interest of the employer. If a covenant not to compete dictates that the physician cannot practice any form of medicine, then it is arguably unreasonable and unenforceable.
While Courts generally look to geographic scope, duration, and type of prohibited activity, there is no objective standard on what is reasonable, and the determination is very much fact dependent. For example, in David Kindred Integrated Med., P.C. v. Snider, 2014 IL App (3d) 130937-U, P26, the Court found a restriction of thirty (30) miles of practice from Peoria and Bloomington for three (3) years was reasonable. Conversely, in Prairie Rheumatology Assocs., S.C. v. Francis, 2014 IL App (3d) 140338, P16, the Court ruled that the restrictive covenant of a radius of fourteen (14) miles for two (2) years was unenforceable, where the physician was only working with the group for fifteen (15) months prior to her departure. The Court focused on the fact that there was insufficient “consideration,” as the physician was working at the practice for less than two (2) years.
Consideration is the “bargained-for exchange of promises or performances, and may consist of a promise, an act or a forbearance." Carter v. SSC Odin Operating Co., LLC, 2012 IL 113204 citing Restatement (Second) of Contracts § 71 (1981). In other words, there must be derived benefit to both parties entering into the contract in order for it to be legally binding. Generally, Courts do not inquire as to the adequacy of consideration, just as long as there is some consideration. For example, a homeowner could sell their home for $.01 and that would satisfy the consideration requirement in a contract between the buyer and seller. However, “adequate” consideration is required to enforce restrictive covenants in an employment contract. Illinois courts have found that adequate consideration requires at least two (2) years of continued employment following the execution of the restrictive covenant. Axion RMS, Ltd. v. Booth, 2019 IL App (1st) 180724. There need not be “additional compensation” like a raise, bonus, or other special benefits, but the employee must be employed for a period of no less than two (2) years. Id. Returning to Prairie Rheumatology Assocs., S.C., even if the restrictive covenant was otherwise reasonable, the fact that the physician resigned within two years of employment was enough for the Court to deem the restrictive covenant unenforceable.
There is clearly no bright line rule which protects the employer versus the employee when it comes to restrictive covenants in medical employment contracts. Say for example, Dr. John Smith is practicing neurosurgery at a hospital in Rockford, Illinois. Dr. Smith’s contract with the hospital states that he cannot practice medicine within a fifteen (15) mile-radius for a period of three (3) years. After one and a half years of working at this hospital, Dr. Smith decides he wants to change the scope of his practice. Instead of performing brain and spine surgery, Dr. Smith wants to limit his practice to outpatient comprehensive pain management, including various forms of spinal injections. Dr. Smith wants to open a private practice near his residence, which is ten (10) miles away from the hospital. Would Dr. Smith violate his contract and noncompete clause if he left the hospital and opened up this private practice? At first glance, it would appear so because the practice is within the prohibited geographical limitation, within the three-year period, and he would still be practicing medicine. However, looking at the complete facts in this situation, Dr. Smith may have an argument that the noncompete clause is unenforceable.
First, geographical location: Rockford, Illinois is a remote area where there are not a lot of hospitals and clinics, unlike in a more heavily populated area and big city like Chicago. In this context, prohibiting Dr. Smith from working within a fifteen mile radius is not only imposing hardship on the physician by preventing him to work near his residence, but also injurious to the public because it would deprive access to medical care to the population of Rockford.
Second, duration: The noncompete clause restricts Dr. Smith’s practice for a period of three years. Courts have held that three years is not an unreasonable duration for a restrictive covenant. Arguing this fact alone may not be compelling, but, once again, looking to the totality of the facts, this could still be considered unreasonable.
Third, type of prohibited activity: The hospital’s noncompete clause prohibits Dr. Smith from practicing medicine. This would be restricting Dr. Smith’s entire livelihood, which a Court could find is unreasonable and “imposing an undue hardship” on the employee. Dr. Smith could also argue that his practice would only be for outpatient nonsurgical pain management, which would not be in competition to the services he provided at the hospital as a surgeon. In this context, restricting his practice is “greater than is required for the protection of a legitimate business interest of the employer.” Dr. Smith could further argue that this is also “injurious to the public” because it would deprive the residents of the Rockford area of an outpatient pain management clinic.
Looking at the complete circumstances in this case, would the Court find in favor of Dr. Smith? There is no objective standard and therefore this cannot be answered definitively. However, Dr. Smith certainly has a good argument that the noncompete clause is unreasonable.
Using Dr. Smith as an example again, what if the hospital was now in Chicago, he worked at that hospital for twenty years, and the noncompete clause restricted only the practice of neurosurgery instead of all aspects of medicine? Dr. Smith could still argue that his scope of his practice (outpatient pain management) is different and would not be in competition with the hospital where he only offered surgical services. The hospital could conversely argue that Dr. Smith spent twenty years working for the hospital and in that span of time developed longstanding patients of the hospital. In this case, the restrictive covenant would protect the hospital’s “legitimate business interest” by preventing the hospital from losing its patients to a nearby hospital. This does not mean that a Court would more likely than not find for the employer, but there are good faith arguments that the covenant is reasonable.
It is important to note that all contracts are negotiable. A noncompete clause in a proposed contract does not need to be blindly accepted. If a proposed contract contains terms that may be different than what you envisioned, you have the right to go back to the potential employer to seek more favorable terms. In fact, in some instances, it is assumed that the initial contract is only a starting point of discussion. It is therefore important for medical professionals to properly understand the noncompete clause prior to entering into a contract and be cognizant of the potential of its enforceability.
You are about to accept a new job, one that meets your goals professionally and personally. You envision that this clinic, hospital, practice group is where you will dedicate your career. However, as is the case more often than not, there may be a point when you need to move on. Where you go next will, in part, be determined by your contract and the “Covenant not to Compete” clause contained therein.
There is no specific statute in Illinois governing noncompete in medical employment contracts. The American Medical Association code of ethics seem to disfavor covenants not to compete, finding that it can actually be harmful to patient care by disrupting continuity of care, and limiting access to care. See AMA Code of Medical Ethics Opinion 11.2.3.1. Regardless, this provides for no legal framework and enforceability is relied on general principals of contract law and Illinois prior court rulings (also known as “case law”). Even if a physician has entered into a valid contract with its employer, the noncompete clause must be “reasonable.” To be reasonable, the restrictive covenant must be 1) no greater than is required for the protection of a legitimate business interest of the employer; 2) does not impose undue hardship on the employee; and 3) it is not injurious to the public. Naperville Women's Healthcare, P.C. v. Carney-Siswick, 2018 IL App (2d) 170401-U, P47 (2018) citing Reliable Fire Equip. Co. v. Arredondo, 965 N.E.2d 393, 397 (2015).
As a general proposition, Illinois courts disfavor restrictions on trade and postemployment restrictive covenants. This has shown to be less so in the context of physician employment contracts. See e.g., Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52 (2006). In this Illinois Supreme Court case, the restrictive covenant at issue provided that appellant, Dr. Mohanty “shall not practice medicine within a five-mile radius of any Clinic office or at any of the four restricted hospitals [St. Mary of Nazareth, Norwegian American, St. Elizabeth, and Sacred Heart], for a period of five years.” Mohanty, 225 Ill. 2d at 57. Dr. Mohanty argued that the restrictive covenant was invalid because "the duration of the restrictive covenant, that is five (5) years, and its geographical limits, that is five (5) miles, are unnecessary to protect the economic or business interest of [the appellees] and therefore is excessive, unjust, unreasonable, unlawful, and unenforceable.” Id. at 58. The Court affirmed the Appellate Court decision, agreeing that this noncompete clause was reasonable where restriction on the appellant was just on his specialty practice (in this case, cardiology) and not all areas of medicine. In addition, he was “free to practice medicine outside the five-mile limit, which, given the heavily populated Chicago metropolitan area, would not deprive [the appellant] of employment." Id. at 76. The Court concluded that based on the totality of circumstances, the restriction on the practice of medicine was not unreasonable and was “not greater than necessary to [appellants] interests.” Id. at 77.
Why is it relevant that the covenant did not restrict the physician from practicing medicine in its entirety versus just his specialty? If a covenant restricts the employer from his or her entire skillset, then it is held to be unreasonable. This is because, as stated above, a restriction cannot extend beyond those necessary to protect any legitimate interest of the employer. House of Vision, Inc. v. Hiyane, 37 Ill. 2d 32, 39 (1967). If a medical group only proffers specific medical care (e.g., cardiology) to the public, then an employee physician practicing medicine in a different specialty (e.g., internal medicine), would not interfere with the financial or other legitimate interest of the employer. If a covenant not to compete dictates that the physician cannot practice any form of medicine, then it is arguably unreasonable and unenforceable.
While Courts generally look to geographic scope, duration, and type of prohibited activity, there is no objective standard on what is reasonable, and the determination is very much fact dependent. For example, in David Kindred Integrated Med., P.C. v. Snider, 2014 IL App (3d) 130937-U, P26, the Court found a restriction of thirty (30) miles of practice from Peoria and Bloomington for three (3) years was reasonable. Conversely, in Prairie Rheumatology Assocs., S.C. v. Francis, 2014 IL App (3d) 140338, P16, the Court ruled that the restrictive covenant of a radius of fourteen (14) miles for two (2) years was unenforceable, where the physician was only working with the group for fifteen (15) months prior to her departure. The Court focused on the fact that there was insufficient “consideration,” as the physician was working at the practice for less than two (2) years.
Consideration is the “bargained-for exchange of promises or performances, and may consist of a promise, an act or a forbearance." Carter v. SSC Odin Operating Co., LLC, 2012 IL 113204 citing Restatement (Second) of Contracts § 71 (1981). In other words, there must be derived benefit to both parties entering into the contract in order for it to be legally binding. Generally, Courts do not inquire as to the adequacy of consideration, just as long as there is some consideration. For example, a homeowner could sell their home for $.01 and that would satisfy the consideration requirement in a contract between the buyer and seller. However, “adequate” consideration is required to enforce restrictive covenants in an employment contract. Illinois courts have found that adequate consideration requires at least two (2) years of continued employment following the execution of the restrictive covenant. Axion RMS, Ltd. v. Booth, 2019 IL App (1st) 180724. There need not be “additional compensation” like a raise, bonus, or other special benefits, but the employee must be employed for a period of no less than two (2) years. Id. Returning to Prairie Rheumatology Assocs., S.C., even if the restrictive covenant was otherwise reasonable, the fact that the physician resigned within two years of employment was enough for the Court to deem the restrictive covenant unenforceable.
There is clearly no bright line rule which protects the employer versus the employee when it comes to restrictive covenants in medical employment contracts. Say for example, Dr. John Smith is practicing neurosurgery at a hospital in Rockford, Illinois. Dr. Smith’s contract with the hospital states that he cannot practice medicine within a fifteen (15) mile-radius for a period of three (3) years. After one and a half years of working at this hospital, Dr. Smith decides he wants to change the scope of his practice. Instead of performing brain and spine surgery, Dr. Smith wants to limit his practice to outpatient comprehensive pain management, including various forms of spinal injections. Dr. Smith wants to open a private practice near his residence, which is ten (10) miles away from the hospital. Would Dr. Smith violate his contract and noncompete clause if he left the hospital and opened up this private practice? At first glance, it would appear so because the practice is within the prohibited geographical limitation, within the three-year period, and he would still be practicing medicine. However, looking at the complete facts in this situation, Dr. Smith may have an argument that the noncompete clause is unenforceable.
First, geographical location: Rockford, Illinois is a remote area where there are not a lot of hospitals and clinics, unlike in a more heavily populated area and big city like Chicago. In this context, prohibiting Dr. Smith from working within a fifteen mile radius is not only imposing hardship on the physician by preventing him to work near his residence, but also injurious to the public because it would deprive access to medical care to the population of Rockford.
Second, duration: The noncompete clause restricts Dr. Smith’s practice for a period of three years. Courts have held that three years is not an unreasonable duration for a restrictive covenant. Arguing this fact alone may not be compelling, but, once again, looking to the totality of the facts, this could still be considered unreasonable.
Third, type of prohibited activity: The hospital’s noncompete clause prohibits Dr. Smith from practicing medicine. This would be restricting Dr. Smith’s entire livelihood, which a Court could find is unreasonable and “imposing an undue hardship” on the employee. Dr. Smith could also argue that his practice would only be for outpatient nonsurgical pain management, which would not be in competition to the services he provided at the hospital as a surgeon. In this context, restricting his practice is “greater than is required for the protection of a legitimate business interest of the employer.” Dr. Smith could further argue that this is also “injurious to the public” because it would deprive the residents of the Rockford area of an outpatient pain management clinic.
Looking at the complete circumstances in this case, would the Court find in favor of Dr. Smith? There is no objective standard and therefore this cannot be answered definitively. However, Dr. Smith certainly has a good argument that the noncompete clause is unreasonable.
Using Dr. Smith as an example again, what if the hospital was now in Chicago, he worked at that hospital for twenty years, and the noncompete clause restricted only the practice of neurosurgery instead of all aspects of medicine? Dr. Smith could still argue that his scope of his practice (outpatient pain management) is different and would not be in competition with the hospital where he only offered surgical services. The hospital could conversely argue that Dr. Smith spent twenty years working for the hospital and in that span of time developed longstanding patients of the hospital. In this case, the restrictive covenant would protect the hospital’s “legitimate business interest” by preventing the hospital from losing its patients to a nearby hospital. This does not mean that a Court would more likely than not find for the employer, but there are good faith arguments that the covenant is reasonable.
It is important to note that all contracts are negotiable. A noncompete clause in a proposed contract does not need to be blindly accepted. If a proposed contract contains terms that may be different than what you envisioned, you have the right to go back to the potential employer to seek more favorable terms. In fact, in some instances, it is assumed that the initial contract is only a starting point of discussion. It is therefore important for medical professionals to properly understand the noncompete clause prior to entering into a contract and be cognizant of the potential of its enforceability.
THE IMPORTANCE OF OBTAINING COLLATERAL SOURCE INFORMATION DURING DISCOVERY
By: Jeffrey E. Eippert
In Illinois, the collateral source rule prevents defendants from submitting evidence that plaintiffs received compensation for their injuries from a collateral source, like insurance. As a result, in medical malpractice litigation, the plaintiffs’ attorneys will often object to the disclosure of their clients’ insurance information, citing the collateral source rule. This results in unnecessary motion practice and delays in discovery. Illinois courts have already ruled that liability insurance policies are discoverable, but what about Medicare and Medicaid information? To date, Illinois courts have not answered this question. However, neighboring jurisdictions have held that the disclosure of Medicare and Medicaid information is consistent with the Federal Rules of Civil Procedure and The Medicare Medicaid and SCHIP Extension Act (MMSEA).
The collateral source rule is an evidentiary objection appropriately made at trial to prevent defendants from introducing any evidence that all or part of a plaintiff’s losses had been covered by insurance or other means. Wills v. Foster, 229 Ill. 2d 393, 399 (2008). Objecting to the disclosure of insurance information is improper, as the standard to determine whether something is admissible at trial is different than the standard to determine whether something is discoverable. Id. Supreme Court Rule 201(b) provides that a party, through discovery, may obtain “full disclosure regarding any matter relevant to the subject matter involved in the pending action”.
In 2017, the First District held that liability insurance policies are discoverable in the course of civil litigation. Brown v. Advocate Health & Hosps. Corp., 2017 IL App (1st) 161918. In Brown, the defendant hospital objected to a request for production of insurance policies. Id. ¶ 4. The defendant objected on relevance grounds, arguing that evidence of whether a party is insured is generally inadmissible at trial. Id. ¶ 14. The trial court rejected that argument and ordered production for an in camera inspection. Id. The First District affirmed the trial court’s order directing production of the insurance policies, viewing “discoverability as distinct from admissibility.” Id. ¶¶ 13, 30 (emphasis added).
However, Illinois Courts have yet to rule on the discoverability of Medicare and Medicaid information. Nevertheless, the issue has been considered by multiple federal district courts. Overall, courts that have considered the discoverability of Medicare and Medicaid information have largely considered it to be discoverable and consistent with Rule 1 of the Federal Rules of Civil Procedure (that the rules should be administered to secure the just, speedy, and inexpensive determination of every action). See Plentyhawk v. Skeikh, 2015 U.S. Dist. LEXIS 128635 (D. Mont. Sep. 24, 2015); Niles v. Rodman, 2015 U.S. Dist. LEXIS 120713 (D. Colo. Sep. 10, 2015); Seger v. Tank Connection, LLC, 2010 U.S. Dist. LEXIS 49013 (D. Neb. Apr. 22, 2010). Courts have also determined that defendants would not be able to “assess damages fully and completely” without Medicare and Medicaid information, if relevant. See Niles, 2015 U.S. Dist. LEXIS 120713.
Counsel for both Plaintiff and Defendants have mandatory reporting requirements under federal law if a case settles or ends with a judgment in favor of Plaintiff. See The Medicare Medicaid and SCHIP Extension Act (MMSEA), 42 U.S.C. § 1395y(b)(8) (where liability insurers must secure information from a Medicare beneficiary and report that information to the federal agency that oversees the Medicare program).
Under the MMSEA, if either a plaintiff or defendant fails to notify Medicare of any settlement, award, judgment, or other payment made, the U.S. Department of Justice can and will seek reimbursement plus double damages against the parties that failed to notify under 42 U.S.C. §1395(y)(b)(2)(B)(iii). See United States v. Stricker, et al., No. CV-09-PT-2423-E (N.D. Ala. 2009) (federal government filing a lawsuit against plaintiff’s attorneys, defense attorneys, and insurance carriers who contributed to a prior settlement without informing Medicare). Without this information, defendants and their insurer cannot assess potential damages completely and could further incur civil money penalties for noncompliance.
Finally, if reimbursement information is not disclosed during discovery, Defendants lose their statutory right to a post-verdict reduction pursuant to 735 ILCS 5/2-1205. See DeCastris v. Gutta, 237 Ill. App. 3d 168, 175 (2d Dist. 1992) (holding that the defendant doctor waived his right to a post-verdict reduction because he failed to obtain collateral source information during discovery).
In Illinois, 735 5/2-1205 is a statutory exception to the collateral source rule that allows a medical malpractice judgment to be reduced by the medical charges associated with the claim. Specifically, the exception provides the following specifics regarding verdict reductions:
An amount equal to the sum of (i) 50% of the benefits provided for lost wages or private or governmental disability income programs, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, and (ii) 100% of the benefits provided for medical charges, hospital charges, or nursing or caretaking charges, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, shall be deducted from any judgment in an action to recover for that injury based on an allegation of negligence or other wrongful act, not including intentional torts, on the part of a licensed hospital or physician…
This exception is underutilized by defendants in medical malpractice litigation and although its application has been inconsistent throughout the Illinois courts, it is important to preserve the defendants’ right to a verdict reduction by obtaining collateral source information during discovery. The disclosure of collateral source information, although not admissible at trial, is relevant in assessing the value of Plaintiff’s claim and preserving Defendants’ right for a post-verdict reduction.
Recently, we have had success arguing in Cook County that our clients have the right to full disclosure of collateral source information, even Medicare and Medicaid information. Failure to obtain collateral source information during the discovery stage can result in unforeseen consequences with potential serious implications for the defense attorneys, their client and its insurer.
In Illinois, the collateral source rule prevents defendants from submitting evidence that plaintiffs received compensation for their injuries from a collateral source, like insurance. As a result, in medical malpractice litigation, the plaintiffs’ attorneys will often object to the disclosure of their clients’ insurance information, citing the collateral source rule. This results in unnecessary motion practice and delays in discovery. Illinois courts have already ruled that liability insurance policies are discoverable, but what about Medicare and Medicaid information? To date, Illinois courts have not answered this question. However, neighboring jurisdictions have held that the disclosure of Medicare and Medicaid information is consistent with the Federal Rules of Civil Procedure and The Medicare Medicaid and SCHIP Extension Act (MMSEA).
The collateral source rule is an evidentiary objection appropriately made at trial to prevent defendants from introducing any evidence that all or part of a plaintiff’s losses had been covered by insurance or other means. Wills v. Foster, 229 Ill. 2d 393, 399 (2008). Objecting to the disclosure of insurance information is improper, as the standard to determine whether something is admissible at trial is different than the standard to determine whether something is discoverable. Id. Supreme Court Rule 201(b) provides that a party, through discovery, may obtain “full disclosure regarding any matter relevant to the subject matter involved in the pending action”.
In 2017, the First District held that liability insurance policies are discoverable in the course of civil litigation. Brown v. Advocate Health & Hosps. Corp., 2017 IL App (1st) 161918. In Brown, the defendant hospital objected to a request for production of insurance policies. Id. ¶ 4. The defendant objected on relevance grounds, arguing that evidence of whether a party is insured is generally inadmissible at trial. Id. ¶ 14. The trial court rejected that argument and ordered production for an in camera inspection. Id. The First District affirmed the trial court’s order directing production of the insurance policies, viewing “discoverability as distinct from admissibility.” Id. ¶¶ 13, 30 (emphasis added).
However, Illinois Courts have yet to rule on the discoverability of Medicare and Medicaid information. Nevertheless, the issue has been considered by multiple federal district courts. Overall, courts that have considered the discoverability of Medicare and Medicaid information have largely considered it to be discoverable and consistent with Rule 1 of the Federal Rules of Civil Procedure (that the rules should be administered to secure the just, speedy, and inexpensive determination of every action). See Plentyhawk v. Skeikh, 2015 U.S. Dist. LEXIS 128635 (D. Mont. Sep. 24, 2015); Niles v. Rodman, 2015 U.S. Dist. LEXIS 120713 (D. Colo. Sep. 10, 2015); Seger v. Tank Connection, LLC, 2010 U.S. Dist. LEXIS 49013 (D. Neb. Apr. 22, 2010). Courts have also determined that defendants would not be able to “assess damages fully and completely” without Medicare and Medicaid information, if relevant. See Niles, 2015 U.S. Dist. LEXIS 120713.
Counsel for both Plaintiff and Defendants have mandatory reporting requirements under federal law if a case settles or ends with a judgment in favor of Plaintiff. See The Medicare Medicaid and SCHIP Extension Act (MMSEA), 42 U.S.C. § 1395y(b)(8) (where liability insurers must secure information from a Medicare beneficiary and report that information to the federal agency that oversees the Medicare program).
Under the MMSEA, if either a plaintiff or defendant fails to notify Medicare of any settlement, award, judgment, or other payment made, the U.S. Department of Justice can and will seek reimbursement plus double damages against the parties that failed to notify under 42 U.S.C. §1395(y)(b)(2)(B)(iii). See United States v. Stricker, et al., No. CV-09-PT-2423-E (N.D. Ala. 2009) (federal government filing a lawsuit against plaintiff’s attorneys, defense attorneys, and insurance carriers who contributed to a prior settlement without informing Medicare). Without this information, defendants and their insurer cannot assess potential damages completely and could further incur civil money penalties for noncompliance.
Finally, if reimbursement information is not disclosed during discovery, Defendants lose their statutory right to a post-verdict reduction pursuant to 735 ILCS 5/2-1205. See DeCastris v. Gutta, 237 Ill. App. 3d 168, 175 (2d Dist. 1992) (holding that the defendant doctor waived his right to a post-verdict reduction because he failed to obtain collateral source information during discovery).
In Illinois, 735 5/2-1205 is a statutory exception to the collateral source rule that allows a medical malpractice judgment to be reduced by the medical charges associated with the claim. Specifically, the exception provides the following specifics regarding verdict reductions:
An amount equal to the sum of (i) 50% of the benefits provided for lost wages or private or governmental disability income programs, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, and (ii) 100% of the benefits provided for medical charges, hospital charges, or nursing or caretaking charges, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, shall be deducted from any judgment in an action to recover for that injury based on an allegation of negligence or other wrongful act, not including intentional torts, on the part of a licensed hospital or physician…
This exception is underutilized by defendants in medical malpractice litigation and although its application has been inconsistent throughout the Illinois courts, it is important to preserve the defendants’ right to a verdict reduction by obtaining collateral source information during discovery. The disclosure of collateral source information, although not admissible at trial, is relevant in assessing the value of Plaintiff’s claim and preserving Defendants’ right for a post-verdict reduction.
Recently, we have had success arguing in Cook County that our clients have the right to full disclosure of collateral source information, even Medicare and Medicaid information. Failure to obtain collateral source information during the discovery stage can result in unforeseen consequences with potential serious implications for the defense attorneys, their client and its insurer.
GOVERNOR PRITZKER VETOES HB 3360 AND THE SENATE PASSES A COMPROMISE BILL
By: Katherine M. Kelleher
On March 25, 2021, Governor Pritzker vetoed House Bill 3360, which provided for the recovery of prejudgment interest on all damages in personal injury and wrongful death cases at 9% per annum. In his statement on the veto, the governor indicated his support for joining the majority of states that allow prejudgment interest in personal injury cases in order to encourage prompt resolution of litigation while at the same time detailing his concerns about certain provisions in the bill.
Governor Pritzker said that the bill as written would be burdensome for hospitals and medical professionals beyond the national norm, potentially driving up healthcare costs for patients and deterring physicians from practicing in Illinois. The governor stated he could not in good conscience sign a bill that would place individuals and entities in the healthcare industry in further financial distress at a time when they are in need of support.
The governor also disapproved of the flat interest rate of 9%, accrual upon notice of the injury, and the fact that the interest would accrue on both economic and non-economic damages.
The governor urged sponsors to negotiate further and find compromises that include stronger protections for health care providers while still reaching the goals of the original bill.
On the same day that the governor vetoed the bill, the Illinois Senate passed a new version of the bill. Senate Bill 72 will head to the governor’s desk for signature having already passed the House.
The new bill reduces the amount of prejudgment interest charged from 9% to 6% per annum on the verdict amount.
Prejudgment interest will not be calculated on punitive damages under the revised legislation. Also excluded from interest are sanctions, statutory attorney’s fees, and statutory costs. Notably, however, interest will still accrue on all other non-economic damages, like past and future pain and suffering.
Another important change under the new bill is that interest will begin to accrue once the lawsuit is filed, which in many circumstances will be a reduced timeframe from that provided in the original bill.
If the plaintiff voluntarily dismisses the action and refiles, the accrual of prejudgment interest shall be paused from the date the action is voluntarily dismissed to the date the action is refiled. This was a compromise provision included over concerns from the defense bar that plaintiff’s attorneys had greater control over the length of the litigation thereby increasing the interest.
Additionally, the new bill includes a provision meant to encourage good faith settlement negotiations between the parties and dissuade either side from unnecessarily protracting the litigation. It provides that if the judgment is equal to or less than the amount of the highest written settlement offer made by the defendant and the offer is rejected by the plaintiff, no prejudgment interest shall be added to the judgment amount. On the other hand, if the judgment is greater than the amount of the highest written settlement offer and the offer is rejected, interest will be calculated on the difference between the amount of the judgment and the amount of the highest written settlement offer.
The new bill includes multiple changes aimed at reaching a compromise between the various groups affected by prejudgment interest under the statute. Whether the modifications meet with Governor Pritzker’s approval remains to be seen. We will continue to monitor the legislation and keep you advised of further developments.
On March 25, 2021, Governor Pritzker vetoed House Bill 3360, which provided for the recovery of prejudgment interest on all damages in personal injury and wrongful death cases at 9% per annum. In his statement on the veto, the governor indicated his support for joining the majority of states that allow prejudgment interest in personal injury cases in order to encourage prompt resolution of litigation while at the same time detailing his concerns about certain provisions in the bill.
Governor Pritzker said that the bill as written would be burdensome for hospitals and medical professionals beyond the national norm, potentially driving up healthcare costs for patients and deterring physicians from practicing in Illinois. The governor stated he could not in good conscience sign a bill that would place individuals and entities in the healthcare industry in further financial distress at a time when they are in need of support.
The governor also disapproved of the flat interest rate of 9%, accrual upon notice of the injury, and the fact that the interest would accrue on both economic and non-economic damages.
The governor urged sponsors to negotiate further and find compromises that include stronger protections for health care providers while still reaching the goals of the original bill.
On the same day that the governor vetoed the bill, the Illinois Senate passed a new version of the bill. Senate Bill 72 will head to the governor’s desk for signature having already passed the House.
The new bill reduces the amount of prejudgment interest charged from 9% to 6% per annum on the verdict amount.
Prejudgment interest will not be calculated on punitive damages under the revised legislation. Also excluded from interest are sanctions, statutory attorney’s fees, and statutory costs. Notably, however, interest will still accrue on all other non-economic damages, like past and future pain and suffering.
Another important change under the new bill is that interest will begin to accrue once the lawsuit is filed, which in many circumstances will be a reduced timeframe from that provided in the original bill.
If the plaintiff voluntarily dismisses the action and refiles, the accrual of prejudgment interest shall be paused from the date the action is voluntarily dismissed to the date the action is refiled. This was a compromise provision included over concerns from the defense bar that plaintiff’s attorneys had greater control over the length of the litigation thereby increasing the interest.
Additionally, the new bill includes a provision meant to encourage good faith settlement negotiations between the parties and dissuade either side from unnecessarily protracting the litigation. It provides that if the judgment is equal to or less than the amount of the highest written settlement offer made by the defendant and the offer is rejected by the plaintiff, no prejudgment interest shall be added to the judgment amount. On the other hand, if the judgment is greater than the amount of the highest written settlement offer and the offer is rejected, interest will be calculated on the difference between the amount of the judgment and the amount of the highest written settlement offer.
The new bill includes multiple changes aimed at reaching a compromise between the various groups affected by prejudgment interest under the statute. Whether the modifications meet with Governor Pritzker’s approval remains to be seen. We will continue to monitor the legislation and keep you advised of further developments.
UNAMBIGUOUS CONSENT FORMS RELIEVE HOSPITAL OF LIABILITY UNDER APPARENT AGENCY
By: Katherine M. Kelleher
In medical malpractice litigation, plaintiff’s attorneys often allege that the hospital is vicariously liable for the acts of a physician under the theories of actual agency and apparent agency.
Actual agency refers to a scenario where there is a principal-agent relationship between the parties. The easiest example of actual agency is where a physician is employed by the hospital where she works. Under the theory of apparent agency, a hospital can be held liable for the acts of a physician providing care at the hospital even though the physician is not an employee, if the hospital held the physician out as an employee and the patient relied upon the hospital’s conduct.
While actual agency can be a straightforward theory for the defense to rebut, apparent agency is much more complicated. Moreover, trial judges are reticent to grant summary judgment in favor of a hospital on apparent agency, instead preferring to let the jury decide this question of fact.
In the Prutton case, however, the Second District affirmed the trial court’s grant of summary judgment in favor of the hospital on apparent agency in the context of labor and delivery where the consent forms were clear and unambiguous. Prutton v. Baumgart, 2020 IL App (2d) 190346.
In Prutton, the plaintiff alleged that Dr. Paula Hobson, an employee of Northern Illinois Fertility, S.C. (NIF), was an apparent agent of Kishwaukee Community Hospital (Kishwaukee). The plaintiff claims that Dr. Hobson was negligent in her delivery techniques and that her negligence caused the child to sustain significant, permanent injuries to her brachial plexus. The trial court granted Kishwaukee’s motion for summary judgment on the issue of apparent agency. The plaintiff appealed and argued that the trial court erred in this ruling because Dr. Hobson oversaw the plaintiff’s labor and performed the delivery of the child at Kishwaukee.
In its opinion, the appellate court explained that “a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor.” Prutton v. Baumgart, 2020 IL App (2d) 190346, ¶ 24, quoting Gilbert v. Sycamore, 156 Ill. 2d 511, 524 (1993).
For a hospital to be liable under the theory of apparent authority, the plaintiff must show that: “(1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the person alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent have the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.” Id., quoting Gilbert v. Sycamore, 156 Ill. 2d 511, 525 (1993).
The first two prongs of the analysis are grouped together and called the holding out factor. A hospital may be deemed to “hold out” an independent contractor as an employee if it holds itself out as a provider of emergency room care without informing the patient that independent contractors are performing the care. In other words, the hospital need not make an express representation that the contractor is an employee.
The third element, justifiable reliance, is satisfied if the plaintiff relies on the hospital, rather than a specific physician, to provide complete emergency room care. Prutton, 2020 IL App (2d) 190346, ¶ 25, citing Gilbert, 156 Ill. 2d at 525. The appellate court went on to say that the Gilbert analysis is not limited to the emergency room setting only. Id. at ¶ 26.
The appellate court concluded that the trial court correctly granted summary judgment in favor of Kishwaukee based solely upon the “holding out” factor. In its analysis, the appellate court first looked at the hospital’s advertisements. Interestingly, the appellate court held that the hospital advertisements could actually create a question of material fact regarding the employer-employee relationship if viewed in isolation because they specifically mention Dr. Hobson by name and in some cases included her photograph. The advertisements welcomed Dr. Hobson to the hospital staff, mentioned her background, and contained Kishwaukee’s name and logo all without directly stating that Dr. Hobson was an independent contractor.
From there, the appellate court addressed the plaintiff’s assertion that Dr. Hobson’s scrubs were marked with Kishwaukee’s name and logo. The appellate court noted Dr. Hobson’s testimony that the scrubs were labeled “Kishwaukee Hospital” [i]n the back where the tag was, but nowhere else. As a result, the appellate court determined the scrubs did not lend support to the plaintiff’s assertion that Kishwaukee held Dr. Hobson out as an employee.
The appellate court also looked at the issue of the consent forms and whether the hospital informed the patient in writing of the physician’s independent-contractor status. The appellate court rejected the plaintiff’s argument that the consent forms were meaningless because the plaintiff signed them while she was in labor.
Illinois case law supports the proposition that those who seek emergency treatment are in some physical or emotional distress, therefore the distress cannot operate to nullify the provisions of the signed consent forms. In other words, pain did not excuse the plaintiff from reading the consent form or having someone else sign the consent form if she could not, due to her condition. Id. at ¶ 51, citing Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) 121835, ¶ 24.
The appellate court also noted that the plaintiff was admitted around 6 p.m., she signed the forms at 8 p.m., and the baby was not born until 2:29 a.m. the following day, meaning that the plaintiff was far from the final stage of labor when she signed the forms. While the independent contractor disclaimer in a consent form is not always dispositive on the issue of “holding out”, it remains an important consideration and is “‘almost conclusive’ in determining whether a hospital should be held liable for the medical negligence of an independent contractor.” Id. at ¶ 55, quoting Steele v. Provena Hosps., 2013 IL App (3d) 110374, ¶ 131.
The appellate court also disagreed with the plaintiff’s argument that the consent forms were ambiguous and confusing. The court noted that the patient authorization was a single page; the independent contractor statement was in bold type; the form required the plaintiff’s initials after the paragraph that contained the bolded sentence; and the plaintiff additionally signed the bottom of the form.
The consent form for obstetrical services was two pages long and contained bulleted paragraphs. One paragraph contained a single sentence with the independent practitioner disclosure. The plaintiff signed the signature line of the second page of the form below the bolded statement that her signature constituted acknowledgement that she had read, understood, and agreed to the foregoing items.
The appellate court held that the consent forms clearly and concisely communicated that the physicians were independent contractors. Moreover, the court noted that the forms did not need to identify Dr. Hobson or NIF by name because the case law does not support that contention. That the plaintiff might not have subjectively understood the consent forms did not create a genuine question of material fact, as the issue is viewed from the perspective of a reasonable person. Id. at ¶ 54, citing Gilbert, 156 Ill. 2d at 524.
While Kishwaukee’s advertisements initially could have been seen to create a genuine question of material fact, the question was resolved by the signed consent forms, which clearly and unambiguously informed the plaintiff that the physicians at the hospital, which included Dr. Hobson, were independent contractors. Considering the clarity of the disclaimers in this case, Kishwaukee’s advertising would not create a question of fact. The appellate court held that the plaintiff could not satisfy the “holding out” factor of the Gilbert test, so she was unsuccessful in her efforts to hold Kishwaukee liable for Dr. Hobson’s actions based on apparent agency. The appellate court did not look at the third element of justifiable reliance, deeming it unnecessary in light of its finding on the “holding out” factor.
The Prutton case is instructive because it highlights the importance of clear and unambiguous consent forms in the context of apparent agency in medical malpractice litigation.
As illustrated by the Prutton court’s analysis, important factors to consider when evaluating the clarity of the consent forms are: the length of the form; whether the independent contractor disclaimer is in bold type to set it apart from the rest of the consent form; whether the form has a place for the patient’s initials by the disclaimer and, if so, whether the patient provided her initials; when the patient signed the form in relation to the timing of her treatment; other formatting elements that make the form easier to read, like bullet points; and whether the form contained an acknowledgement section.
A court will look at multiple factors when ruling on a summary judgment motion based upon apparent agency, like: whether the physician wore scrubs bearing the hospital logo; whether the hospital advertised the services of the physician; whether the physician discussed her employment status with the patient; and whether the physician’s practice group has an office on the hospital campus. As the Prutton case demonstrates, however, the consent form, when well drafted, can be determinative on the issue of apparent agency and should be emphasized by defense counsel in summary judgment briefing.
In medical malpractice litigation, plaintiff’s attorneys often allege that the hospital is vicariously liable for the acts of a physician under the theories of actual agency and apparent agency.
Actual agency refers to a scenario where there is a principal-agent relationship between the parties. The easiest example of actual agency is where a physician is employed by the hospital where she works. Under the theory of apparent agency, a hospital can be held liable for the acts of a physician providing care at the hospital even though the physician is not an employee, if the hospital held the physician out as an employee and the patient relied upon the hospital’s conduct.
While actual agency can be a straightforward theory for the defense to rebut, apparent agency is much more complicated. Moreover, trial judges are reticent to grant summary judgment in favor of a hospital on apparent agency, instead preferring to let the jury decide this question of fact.
In the Prutton case, however, the Second District affirmed the trial court’s grant of summary judgment in favor of the hospital on apparent agency in the context of labor and delivery where the consent forms were clear and unambiguous. Prutton v. Baumgart, 2020 IL App (2d) 190346.
In Prutton, the plaintiff alleged that Dr. Paula Hobson, an employee of Northern Illinois Fertility, S.C. (NIF), was an apparent agent of Kishwaukee Community Hospital (Kishwaukee). The plaintiff claims that Dr. Hobson was negligent in her delivery techniques and that her negligence caused the child to sustain significant, permanent injuries to her brachial plexus. The trial court granted Kishwaukee’s motion for summary judgment on the issue of apparent agency. The plaintiff appealed and argued that the trial court erred in this ruling because Dr. Hobson oversaw the plaintiff’s labor and performed the delivery of the child at Kishwaukee.
In its opinion, the appellate court explained that “a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor.” Prutton v. Baumgart, 2020 IL App (2d) 190346, ¶ 24, quoting Gilbert v. Sycamore, 156 Ill. 2d 511, 524 (1993).
For a hospital to be liable under the theory of apparent authority, the plaintiff must show that: “(1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the person alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent have the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.” Id., quoting Gilbert v. Sycamore, 156 Ill. 2d 511, 525 (1993).
The first two prongs of the analysis are grouped together and called the holding out factor. A hospital may be deemed to “hold out” an independent contractor as an employee if it holds itself out as a provider of emergency room care without informing the patient that independent contractors are performing the care. In other words, the hospital need not make an express representation that the contractor is an employee.
The third element, justifiable reliance, is satisfied if the plaintiff relies on the hospital, rather than a specific physician, to provide complete emergency room care. Prutton, 2020 IL App (2d) 190346, ¶ 25, citing Gilbert, 156 Ill. 2d at 525. The appellate court went on to say that the Gilbert analysis is not limited to the emergency room setting only. Id. at ¶ 26.
The appellate court concluded that the trial court correctly granted summary judgment in favor of Kishwaukee based solely upon the “holding out” factor. In its analysis, the appellate court first looked at the hospital’s advertisements. Interestingly, the appellate court held that the hospital advertisements could actually create a question of material fact regarding the employer-employee relationship if viewed in isolation because they specifically mention Dr. Hobson by name and in some cases included her photograph. The advertisements welcomed Dr. Hobson to the hospital staff, mentioned her background, and contained Kishwaukee’s name and logo all without directly stating that Dr. Hobson was an independent contractor.
From there, the appellate court addressed the plaintiff’s assertion that Dr. Hobson’s scrubs were marked with Kishwaukee’s name and logo. The appellate court noted Dr. Hobson’s testimony that the scrubs were labeled “Kishwaukee Hospital” [i]n the back where the tag was, but nowhere else. As a result, the appellate court determined the scrubs did not lend support to the plaintiff’s assertion that Kishwaukee held Dr. Hobson out as an employee.
The appellate court also looked at the issue of the consent forms and whether the hospital informed the patient in writing of the physician’s independent-contractor status. The appellate court rejected the plaintiff’s argument that the consent forms were meaningless because the plaintiff signed them while she was in labor.
Illinois case law supports the proposition that those who seek emergency treatment are in some physical or emotional distress, therefore the distress cannot operate to nullify the provisions of the signed consent forms. In other words, pain did not excuse the plaintiff from reading the consent form or having someone else sign the consent form if she could not, due to her condition. Id. at ¶ 51, citing Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) 121835, ¶ 24.
The appellate court also noted that the plaintiff was admitted around 6 p.m., she signed the forms at 8 p.m., and the baby was not born until 2:29 a.m. the following day, meaning that the plaintiff was far from the final stage of labor when she signed the forms. While the independent contractor disclaimer in a consent form is not always dispositive on the issue of “holding out”, it remains an important consideration and is “‘almost conclusive’ in determining whether a hospital should be held liable for the medical negligence of an independent contractor.” Id. at ¶ 55, quoting Steele v. Provena Hosps., 2013 IL App (3d) 110374, ¶ 131.
The appellate court also disagreed with the plaintiff’s argument that the consent forms were ambiguous and confusing. The court noted that the patient authorization was a single page; the independent contractor statement was in bold type; the form required the plaintiff’s initials after the paragraph that contained the bolded sentence; and the plaintiff additionally signed the bottom of the form.
The consent form for obstetrical services was two pages long and contained bulleted paragraphs. One paragraph contained a single sentence with the independent practitioner disclosure. The plaintiff signed the signature line of the second page of the form below the bolded statement that her signature constituted acknowledgement that she had read, understood, and agreed to the foregoing items.
The appellate court held that the consent forms clearly and concisely communicated that the physicians were independent contractors. Moreover, the court noted that the forms did not need to identify Dr. Hobson or NIF by name because the case law does not support that contention. That the plaintiff might not have subjectively understood the consent forms did not create a genuine question of material fact, as the issue is viewed from the perspective of a reasonable person. Id. at ¶ 54, citing Gilbert, 156 Ill. 2d at 524.
While Kishwaukee’s advertisements initially could have been seen to create a genuine question of material fact, the question was resolved by the signed consent forms, which clearly and unambiguously informed the plaintiff that the physicians at the hospital, which included Dr. Hobson, were independent contractors. Considering the clarity of the disclaimers in this case, Kishwaukee’s advertising would not create a question of fact. The appellate court held that the plaintiff could not satisfy the “holding out” factor of the Gilbert test, so she was unsuccessful in her efforts to hold Kishwaukee liable for Dr. Hobson’s actions based on apparent agency. The appellate court did not look at the third element of justifiable reliance, deeming it unnecessary in light of its finding on the “holding out” factor.
The Prutton case is instructive because it highlights the importance of clear and unambiguous consent forms in the context of apparent agency in medical malpractice litigation.
As illustrated by the Prutton court’s analysis, important factors to consider when evaluating the clarity of the consent forms are: the length of the form; whether the independent contractor disclaimer is in bold type to set it apart from the rest of the consent form; whether the form has a place for the patient’s initials by the disclaimer and, if so, whether the patient provided her initials; when the patient signed the form in relation to the timing of her treatment; other formatting elements that make the form easier to read, like bullet points; and whether the form contained an acknowledgement section.
A court will look at multiple factors when ruling on a summary judgment motion based upon apparent agency, like: whether the physician wore scrubs bearing the hospital logo; whether the hospital advertised the services of the physician; whether the physician discussed her employment status with the patient; and whether the physician’s practice group has an office on the hospital campus. As the Prutton case demonstrates, however, the consent form, when well drafted, can be determinative on the issue of apparent agency and should be emphasized by defense counsel in summary judgment briefing.
ILLINOIS LEGISLATURE AMENDS CODE OF CIVIL PROCEDURE TO ALLOW FOR PREJUDGMENT INTEREST IN PERSONAL INJURY CASES
By: Katherine M. Kelleher
Illinois personal injury attorneys and insurers should take note of House Bill 3360, which passed on January 13, 2021, and becomes effective immediately. The bill allows for prejudgment interest in all personal injury or wrongful death actions based upon negligence, willful and wanton misconduct, intentional conduct, or strict liability. This includes medical malpractice cases.
The bill amends Section 2-1303 of the Illinois Code of Civil Procedure to mandate prejudgment interest at 9% per annum. Prejudgment interest on all damages set forth in the judgment shall begin to accrue on the date the defendant has notice of the injury from the incident itself or a written notice. The court shall add the prejudgment interest to the judgment amount when entering the judgment for the plaintiff.
The bill provides only one exclusion to the new prejudgment interest rule: a local public entity is not liable to pay prejudgment interest in an action brought directly or vicariously against it by an injured party.
Also included in the bill is a provision allowing the trial court, in its discretion, to apportion any amount of prejudgment interest between the plaintiff and any agency or department of the State. Here, the court shall consider, among other factors it deems relevant, the plaintiff’s hardship from the time of injury to the date of judgment and the effort required to obtain the judgment.
The bill has passed both Chambers, and will be sent to Gov. Pritzker for signature.
Prior to this amendment, Section 2-1303 provided only for postjudgment interest at 9% per annum calculated from the date of the judgment until the judgment is satisfied. With this change, the amount that a personal injury plaintiff could collect if successful is drastically increased.
To see the effect of this amendment, let’s take a plaintiff who is injured on January 15, 2021. We will assume for the sake of this example that the alleged tortfeasor has notice of the injury on the same date. The plaintiff then waits until January 15, 2023 to file her lawsuit, as allowed by the applicable statute of limitations. The case is litigated for three years, and the plaintiff decides to voluntarily dismiss the action on January 15, 2026, pursuant to Section 2-1009. The plaintiff refiles her case on January 15, 2027, and the case is litigated for another two years through trial. On January 15, 2029, the jury awards the plaintiff $500,000 in damages. The court then calculates prejudgment interest at 9% per annum for 8 years ($360,000) and adds that to the verdict of $500,000 for a total judgment of $860,000. The prejudgment interest increases the jury’s verdict by 72%.
In the case of a $1.5 million verdict in the same scenario, the court would add $1.08 million in prejudgment interest to the verdict amount for a total judgment of $2.58 million.
An important consideration that is not made clear by the language of the amendment is whether postjudgment interest will be calculated on the prejudgment interest or just the verdict amount. If the court awards postjudgment interest on the prejudgment interest, it would increase plaintiff’s recovery even more in situations where the judgment is not timely paid.
Those in favor of prejudgment interest argue that it allows for the plaintiff to be fully and fairly compensated because it reimburses the plaintiff for the “opportunity costs” from the time of his injury until the time of judgment. Proponents also believe prejudgment interest will encourage quicker settlements, which reduces the time spent in litigation and could diminish court backlog.
Opponents of prejudgment interest assert that it unfairly prejudices the defendant who may reasonably believe he has a meritorious defense. In other words, prejudgment interest serves to penalize the defendant for going to trial instead of settling early. Additionally, plaintiffs have the opportunity to voluntarily dismiss a case for a year before refiling, thereby adding additional time for interest to accrue as outlined in the example above. Opponents also argue that prejudgment interest in the medical malpractice context will drive up healthcare costs, compel physicians and specialists to leave the state, and jeopardize access to care.
Time will tell how great the impact of this amendment will be on civil litigation in Illinois going forward, but there is no doubt that it will give insurers and litigators pause as they maneuver settlement discussions throughout the various stages of each case. We will continue to monitor the many ways this amendment is sure to affect defendants and insurers, and we will provide you with further updates.
Illinois personal injury attorneys and insurers should take note of House Bill 3360, which passed on January 13, 2021, and becomes effective immediately. The bill allows for prejudgment interest in all personal injury or wrongful death actions based upon negligence, willful and wanton misconduct, intentional conduct, or strict liability. This includes medical malpractice cases.
The bill amends Section 2-1303 of the Illinois Code of Civil Procedure to mandate prejudgment interest at 9% per annum. Prejudgment interest on all damages set forth in the judgment shall begin to accrue on the date the defendant has notice of the injury from the incident itself or a written notice. The court shall add the prejudgment interest to the judgment amount when entering the judgment for the plaintiff.
The bill provides only one exclusion to the new prejudgment interest rule: a local public entity is not liable to pay prejudgment interest in an action brought directly or vicariously against it by an injured party.
Also included in the bill is a provision allowing the trial court, in its discretion, to apportion any amount of prejudgment interest between the plaintiff and any agency or department of the State. Here, the court shall consider, among other factors it deems relevant, the plaintiff’s hardship from the time of injury to the date of judgment and the effort required to obtain the judgment.
The bill has passed both Chambers, and will be sent to Gov. Pritzker for signature.
Prior to this amendment, Section 2-1303 provided only for postjudgment interest at 9% per annum calculated from the date of the judgment until the judgment is satisfied. With this change, the amount that a personal injury plaintiff could collect if successful is drastically increased.
To see the effect of this amendment, let’s take a plaintiff who is injured on January 15, 2021. We will assume for the sake of this example that the alleged tortfeasor has notice of the injury on the same date. The plaintiff then waits until January 15, 2023 to file her lawsuit, as allowed by the applicable statute of limitations. The case is litigated for three years, and the plaintiff decides to voluntarily dismiss the action on January 15, 2026, pursuant to Section 2-1009. The plaintiff refiles her case on January 15, 2027, and the case is litigated for another two years through trial. On January 15, 2029, the jury awards the plaintiff $500,000 in damages. The court then calculates prejudgment interest at 9% per annum for 8 years ($360,000) and adds that to the verdict of $500,000 for a total judgment of $860,000. The prejudgment interest increases the jury’s verdict by 72%.
In the case of a $1.5 million verdict in the same scenario, the court would add $1.08 million in prejudgment interest to the verdict amount for a total judgment of $2.58 million.
An important consideration that is not made clear by the language of the amendment is whether postjudgment interest will be calculated on the prejudgment interest or just the verdict amount. If the court awards postjudgment interest on the prejudgment interest, it would increase plaintiff’s recovery even more in situations where the judgment is not timely paid.
Those in favor of prejudgment interest argue that it allows for the plaintiff to be fully and fairly compensated because it reimburses the plaintiff for the “opportunity costs” from the time of his injury until the time of judgment. Proponents also believe prejudgment interest will encourage quicker settlements, which reduces the time spent in litigation and could diminish court backlog.
Opponents of prejudgment interest assert that it unfairly prejudices the defendant who may reasonably believe he has a meritorious defense. In other words, prejudgment interest serves to penalize the defendant for going to trial instead of settling early. Additionally, plaintiffs have the opportunity to voluntarily dismiss a case for a year before refiling, thereby adding additional time for interest to accrue as outlined in the example above. Opponents also argue that prejudgment interest in the medical malpractice context will drive up healthcare costs, compel physicians and specialists to leave the state, and jeopardize access to care.
Time will tell how great the impact of this amendment will be on civil litigation in Illinois going forward, but there is no doubt that it will give insurers and litigators pause as they maneuver settlement discussions throughout the various stages of each case. We will continue to monitor the many ways this amendment is sure to affect defendants and insurers, and we will provide you with further updates.
SOCIAL MEDIA DISCOVERY: THE MISCONCEPTION OF “PRIVATE” INFORMATION
By: Jeffrey E. Eippert
How do courts determine what is and what isn’t discoverable when it pertains to social media information? In Illinois, the answer to this question is not all that clear. In fact, Illinois case law is rather scarce on this issue. Initially, it is important to determine whether the social media account(s) in question are public or private. If the account is public, the party seeking the information is free to gather any information it can access. If the account is private, there are additional considerations that must be addressed.
Logically, the very nature of social media limits parties’ privacy expectations. Plaintiffs who place their physical condition in controversy “may not shield from disclosure material which is necessary to the defense of the action.” Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 655 (2010). Therefore, courts will almost always grant discovery requests seeking publicly available social media information. Further, “private” social media information is not generally shielded from discovery merely because an individual used a third-party service’s privacy settings to restrict access – just as matter from a personal diary is discoverable. Id. at 655. Nevertheless, private social media information requires a more detailed analysis.
Social media information does not differ from that of “hard copy” discovery in the sense that it is discoverable so long that the requesting party shows it is relevant and proportional to the needs of the case. Crabtree v. Angie’s List, Inc., 2017 U.S. Dist. LEXIS 12927 (S.D. Ind. 2017). In other words, “courts are reluctant to compel all-encompassing social media requests unless they are limited in scope to content that is relevant to a claim or defense in the case.” Ye v. Cliff Viessman, Inc., 2016 U.S. Dist. LEXIS 2882, at 10 (N.D. Ill. 2016).
The question then becomes: How do you know whether a party’s “private” social media information is relevant or not without first having access to the information itself? Other jurisdictions have allowed access to a party’s private social media information upon the showing of relevant publicly available social media data. For example, even private Facebook pages oftentimes have at least some publicly available information. Other jurisdictions have held that relevant private social media data must be disclosed when public aspects of the social media account in question leads to a “reasonable likelihood” that the private portions of the account may contain further evidence (such as information with regard to a party’s activities and enjoyment of life) – so long as they are relevant to the defense of the case.
Despite the obscurity of Illinois law on this issue, it is clear that social media requests need to be narrowly tailored so that the requested information has at least some bearing on the issues in the lawsuit. Presumably, the most effective way to substantiate social media discovery requests would be to show the court that the party contradicted him or herself on the publicly available portions of their social media accounts.
Plaintiffs’ attorneys often object to social media requests citing The Stored Communications Act (SCA). However, the SCA prohibits third-party providers (like Facebook, Twitter, etc.) from divulging a user’s private communications outside of that individual’s basic user subscriber information. In other words, the SCA does not apply to the individuals who use the communications services provided. Nucci v. Target Corp., 162 So. 3d 146, 155 (Fla. Dist. Ct. App. 2015). Thus, a party requesting social media information is better off requesting such information from the individual’s attorney through the formal discovery process, rather than issuing a subpoena directly to the service provider.
Whether you plan to use social media evidence at trial or not, issuing a preservation letter at the outset of the case is a key step in protecting potential social media evidence. The preservation letter leaves little doubt that the recipient has notice that his or her social media posts may be relevant to litigation. In other words, it triggers the duty to preserve evidence and will be the foundation of a subsequent spoliation claim, if necessary. Failing to preserve social media evidence can result in serious sanctions. Lester v. Allied Concrete Co., 2011 Va. 295, 303 (2013) (where the court imposed sanctions in the amount of $542,000 against an attorney who told his client to “clean up” his Facebook account). Since it is relatively simple to delete information from social media pages, issuing a preservation letter will at the very least assist with a future spoliation claim if relevant social media evidence is in fact deleted.
Despite the lack of guidance in Illinois case law, it appears that social media discovery is generally treated similar to that of traditional discovery. Ideally, public portions of an individual’s social media page(s) will be relevant enough to trigger the disclosure of private social media information. Nevertheless, discovery requests for social media information need to be narrowly tailored. Courts generally are hesitant to force a party to simply turn over their usernames and passwords. Rather, courts are more likely to force the disclosure of social media information when a party’s discovery requests are specific to the issues or elements of the underlying case, such as damages.
How do courts determine what is and what isn’t discoverable when it pertains to social media information? In Illinois, the answer to this question is not all that clear. In fact, Illinois case law is rather scarce on this issue. Initially, it is important to determine whether the social media account(s) in question are public or private. If the account is public, the party seeking the information is free to gather any information it can access. If the account is private, there are additional considerations that must be addressed.
Logically, the very nature of social media limits parties’ privacy expectations. Plaintiffs who place their physical condition in controversy “may not shield from disclosure material which is necessary to the defense of the action.” Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 655 (2010). Therefore, courts will almost always grant discovery requests seeking publicly available social media information. Further, “private” social media information is not generally shielded from discovery merely because an individual used a third-party service’s privacy settings to restrict access – just as matter from a personal diary is discoverable. Id. at 655. Nevertheless, private social media information requires a more detailed analysis.
Social media information does not differ from that of “hard copy” discovery in the sense that it is discoverable so long that the requesting party shows it is relevant and proportional to the needs of the case. Crabtree v. Angie’s List, Inc., 2017 U.S. Dist. LEXIS 12927 (S.D. Ind. 2017). In other words, “courts are reluctant to compel all-encompassing social media requests unless they are limited in scope to content that is relevant to a claim or defense in the case.” Ye v. Cliff Viessman, Inc., 2016 U.S. Dist. LEXIS 2882, at 10 (N.D. Ill. 2016).
The question then becomes: How do you know whether a party’s “private” social media information is relevant or not without first having access to the information itself? Other jurisdictions have allowed access to a party’s private social media information upon the showing of relevant publicly available social media data. For example, even private Facebook pages oftentimes have at least some publicly available information. Other jurisdictions have held that relevant private social media data must be disclosed when public aspects of the social media account in question leads to a “reasonable likelihood” that the private portions of the account may contain further evidence (such as information with regard to a party’s activities and enjoyment of life) – so long as they are relevant to the defense of the case.
Despite the obscurity of Illinois law on this issue, it is clear that social media requests need to be narrowly tailored so that the requested information has at least some bearing on the issues in the lawsuit. Presumably, the most effective way to substantiate social media discovery requests would be to show the court that the party contradicted him or herself on the publicly available portions of their social media accounts.
Plaintiffs’ attorneys often object to social media requests citing The Stored Communications Act (SCA). However, the SCA prohibits third-party providers (like Facebook, Twitter, etc.) from divulging a user’s private communications outside of that individual’s basic user subscriber information. In other words, the SCA does not apply to the individuals who use the communications services provided. Nucci v. Target Corp., 162 So. 3d 146, 155 (Fla. Dist. Ct. App. 2015). Thus, a party requesting social media information is better off requesting such information from the individual’s attorney through the formal discovery process, rather than issuing a subpoena directly to the service provider.
Whether you plan to use social media evidence at trial or not, issuing a preservation letter at the outset of the case is a key step in protecting potential social media evidence. The preservation letter leaves little doubt that the recipient has notice that his or her social media posts may be relevant to litigation. In other words, it triggers the duty to preserve evidence and will be the foundation of a subsequent spoliation claim, if necessary. Failing to preserve social media evidence can result in serious sanctions. Lester v. Allied Concrete Co., 2011 Va. 295, 303 (2013) (where the court imposed sanctions in the amount of $542,000 against an attorney who told his client to “clean up” his Facebook account). Since it is relatively simple to delete information from social media pages, issuing a preservation letter will at the very least assist with a future spoliation claim if relevant social media evidence is in fact deleted.
Despite the lack of guidance in Illinois case law, it appears that social media discovery is generally treated similar to that of traditional discovery. Ideally, public portions of an individual’s social media page(s) will be relevant enough to trigger the disclosure of private social media information. Nevertheless, discovery requests for social media information need to be narrowly tailored. Courts generally are hesitant to force a party to simply turn over their usernames and passwords. Rather, courts are more likely to force the disclosure of social media information when a party’s discovery requests are specific to the issues or elements of the underlying case, such as damages.
"NEUROLOGICAL INJURY" VS. "PSYCHOLOGICAL DAMAGE": MATTER OVER MIND?
By: Mary M. Cunningham
In today's world, mental health and privacy concerns for employers, administrators, and the media is a hot and sensitive topic. While some urge transparency with respect to mental health issues, the law places significant restrictions on the production of mental health information.
The recent case of Sparger v. Yamini, 2019 IL App (1st), 180566, outlines the Court's analysis as to whether cognitive, emotional, and behavioral issues in a patient are incorporated within the mental Health and Developmental Disabilities Confidentiality Act. The ruling was favorable to the plaintiff.
The Mental Health Act (740 ILCS 110/1, et. seq. West 2018) holds generally that information, including records and communications, created in the course of supplying mental health or developmental disabilities services, is privileged and shall be protected from disclosure. There are exceptions to this confidentiality privilege, and in particular, it has been found that when a recipient of services places his or her mental condition, or any aspect of services received as an element of his or her claim, he or she waives the privilege. Thus, if a plaintiff places his or her mental health at issue in a lawsuit, previous mental health records become discoverable and are fair game to use in the litigation.
In the Sparger case, the plaintiff father filed a lawsuit on behalf of his minor daughter for negligence in the repair of a spinal fluid leak while being treated for meningitis. She was subsequently evaluated by a neuropsychologist to determine whether the meningitis affected her cognitive, emotional, and behavioral presentation. The neuropsychologist found that the child presented with signs and symptoms consistent with a traumatic brain injury, and outlined that she exhibited cognitive impairments, "including decreased attention, irritability, sensory sensitivity, decreased cognitive processing speed, auditory processing delays, impaired immediate and working memory to auditory and visual stimuli, sensory processing/modulation/integration deficits, impaired mental stamina, and social interaction deficits." The neuropsychologist concluded that her cognitive presentation was the result of her recent episode of meningitis.
However, in discovery, it was also determined the child's medical records before her hospitalization for meningitis contained mental health information. The records were produced with significant redactions and an omission of an entire hospitalization. The defense sought those records, the plaintiff refused their production, but the Trial Court ordered production of the records.
On appeal, the Appellate Court found that the previous records which contained mental health information of the minor were privileged because the plaintiff never placed her mental health at issue in the lawsuit. The Court found that the plaintiff did not place her mental health condition at issue by claiming damages for a neurological injury. It emphasized that "neurological injury" cannot be synonymous with "psychological damage", and that "neurological injury" does not directly implicate psychological damage. Because the plaintiff claimed neurological injury as a result of the bout of meningitis, the Court found she did not place her mental condition at issue. The defense argued that because the plaintiff claimed that she suffered "personal and pecuniary damages" that included emotional injuries which placed her mental health at issue; by virtue of the fact that trauma to the brain or brain injury may cause emotional or cognitive issues, mental health is implicitly at issue. However, the Sparger Court disagreed, and held that as the plaintiff did not claim specific emotional or mental health treatment as a result of her injuries, she did not place her mental health at issue. Because she sought neuropsychological testing to determine whether there was brain injury and neurological damage, she did not claim psychological damage.
The effect of this decision is that it continues to narrow the exceptions to the Mental Health Act. "Neurological injury", which may result in behavioral, emotional, and social issues, is not considered "psychological damage", which may also have resulting behavioral, emotional, and social damage. This is a fine line drawn by the courts, and will make it difficult for defendants to obtain prior mental health records in the future.
In today's world, mental health and privacy concerns for employers, administrators, and the media is a hot and sensitive topic. While some urge transparency with respect to mental health issues, the law places significant restrictions on the production of mental health information.
The recent case of Sparger v. Yamini, 2019 IL App (1st), 180566, outlines the Court's analysis as to whether cognitive, emotional, and behavioral issues in a patient are incorporated within the mental Health and Developmental Disabilities Confidentiality Act. The ruling was favorable to the plaintiff.
The Mental Health Act (740 ILCS 110/1, et. seq. West 2018) holds generally that information, including records and communications, created in the course of supplying mental health or developmental disabilities services, is privileged and shall be protected from disclosure. There are exceptions to this confidentiality privilege, and in particular, it has been found that when a recipient of services places his or her mental condition, or any aspect of services received as an element of his or her claim, he or she waives the privilege. Thus, if a plaintiff places his or her mental health at issue in a lawsuit, previous mental health records become discoverable and are fair game to use in the litigation.
In the Sparger case, the plaintiff father filed a lawsuit on behalf of his minor daughter for negligence in the repair of a spinal fluid leak while being treated for meningitis. She was subsequently evaluated by a neuropsychologist to determine whether the meningitis affected her cognitive, emotional, and behavioral presentation. The neuropsychologist found that the child presented with signs and symptoms consistent with a traumatic brain injury, and outlined that she exhibited cognitive impairments, "including decreased attention, irritability, sensory sensitivity, decreased cognitive processing speed, auditory processing delays, impaired immediate and working memory to auditory and visual stimuli, sensory processing/modulation/integration deficits, impaired mental stamina, and social interaction deficits." The neuropsychologist concluded that her cognitive presentation was the result of her recent episode of meningitis.
However, in discovery, it was also determined the child's medical records before her hospitalization for meningitis contained mental health information. The records were produced with significant redactions and an omission of an entire hospitalization. The defense sought those records, the plaintiff refused their production, but the Trial Court ordered production of the records.
On appeal, the Appellate Court found that the previous records which contained mental health information of the minor were privileged because the plaintiff never placed her mental health at issue in the lawsuit. The Court found that the plaintiff did not place her mental health condition at issue by claiming damages for a neurological injury. It emphasized that "neurological injury" cannot be synonymous with "psychological damage", and that "neurological injury" does not directly implicate psychological damage. Because the plaintiff claimed neurological injury as a result of the bout of meningitis, the Court found she did not place her mental condition at issue. The defense argued that because the plaintiff claimed that she suffered "personal and pecuniary damages" that included emotional injuries which placed her mental health at issue; by virtue of the fact that trauma to the brain or brain injury may cause emotional or cognitive issues, mental health is implicitly at issue. However, the Sparger Court disagreed, and held that as the plaintiff did not claim specific emotional or mental health treatment as a result of her injuries, she did not place her mental health at issue. Because she sought neuropsychological testing to determine whether there was brain injury and neurological damage, she did not claim psychological damage.
The effect of this decision is that it continues to narrow the exceptions to the Mental Health Act. "Neurological injury", which may result in behavioral, emotional, and social issues, is not considered "psychological damage", which may also have resulting behavioral, emotional, and social damage. This is a fine line drawn by the courts, and will make it difficult for defendants to obtain prior mental health records in the future.
TOM HARVICK RECEIVES JURY VERDICT REPORTER LIFETIME ACHIEVEMENT AWARD FOR TRIAL LAWYER EXCELLENCE
The 7th Annual JVR Awards for Trial Lawyer Excellence, hosted by the Jury Verdict Reporter, took place on October 19th, 2016 at the Chicago Cultural Center in downtown Chicago. More than 300 trial attorneys and judges were in attendance for the reception and awards ceremony. The program recognized superior outcomes and record verdicts achieved by individuals and teams of trial lawyers from both the plaintiff and defense bars. Three defense attorneys and two plaintiff attorneys were recognized for their entire body of work, and the program concluded with recognition of two Lifetime Achievement Award winners.
HOPE IN THE CHAOS OF ELECTRONICALLY STORED INFORMATION?
By: Mary M. Cunningham
Years ago, the use of the Electronic Medical Record (“EMR”) was a daunting concept for healthcare providers and institutions because of its complexity and novelty. Its use had far reaching implications, some of which led to the implementation of federal and state privacy and confidentiality laws, and took years to customize to users’ specifications. While not yet perfect, the EMR is the universally well-established method by which medical information is created, shared, and stored. As technological advances continue to offer a wealth of data, dynamic innovation, high speed delivery of data and significant storage capacity, the EMR has become an incredibly powerful and reliable mechanism for healthcare communication and record keeping.
However, in litigation, the technological advancements of the EMR can pose serious threats to those who possess or control the Electronically Stored Information (“ESI”). In any medical malpractice case, the plaintiff can seek information deemed relevant to the issues of the case. As a result, there have been increased numbers of requests for healthcare professionals’ audit trails (the stored data of the EMR which traces every chronological transaction made in the EMR) and more recently, the metadata (“the data behind the data”) behind various transactions. These requests for non-medical record ESI pose serious threats to general discovery principles, privacy and proprietary interests, and confidentiality; and, notwithstanding these issues, the data is incredibly difficult to retrieve, often requires IT assistance and leads to time consuming, often irrelevant, discovery nightmares.
In 2016, the Second District Appellate Court issued a comprehensive opinion about the circumstances under which a party may inspect the contents of another party’s computers after the defense sought forensic imaging of all of the plaintiff’s computers to dispute his alleged damages. Carlson v. Jerosek, 2016 IL App. 2d 151248 remains the single most authoritative case which analyzes discovery issues regarding ESI in Illinois to date. The Carlson Court first acknowledged the dearth of Illinois law on the subject of discovery of ESI, and then performed an extensive review of applicable discovery rules and their applications in civil litigation from the Federal Courts, Illinois Courts and foreign jurisdictions, as well as citing to constitutional and privacy concerns protected by the rules. After a lengthy presentation of its analysis, the Carlson Court concluded that the party requesting the inspection of the computer data should be denied the request.
Carlson acknowledged that the 2014 Amendments to the Illinois Civil Discovery Rules adopted the Federal Court Rules, which deal extensively with ESI discovery. Id, P 38. It noted that Illinois Supreme Court Rule 201(b)(1) was amended to specify that a request for “documents” includes ESI; it also added that the Federal Court Rules were drafted to be flexible and expansive as technology changes. Carlson emphasized that these (new) rules add the proportionality provision, which requires courts to determine whether the likely burden or expense of the request outweighs the benefit of the information. This balancing test, according to Carlson, should provide additional protection against abusive ESI discovery requests. Id, P 30.
In so doing, the Carlson Court further acknowledged that the discovery of ESI presents challenges that do not arise with the production of paper documents, “including the risk of substantially higher production costs, the need for technical expert involvement and production and increased privacy concerns.” Id, P 44. Noting that the volume of information that can be stored electronically is vast, is stored at an exponentially greater volume than hard copied documents, is dynamic rather than static, and is sometimes incomprehensible when separated from its system, the Court found that effort and expense in dealing with ESI discovery can be much higher. Thus, the Court emphasized the limits placed on the discovery of ESI under the newly adopted proportionality rule. It also identified categories of ESI that are presumably non-discoverable (including deleted, slack, fragmented or unallocated data, Random Access Memory (RAM), online access data, data in metadata fields that are frequently automatically updated, back up data that is substantially duplicative of other data, legacy data, and information whose retrieval cannot be accomplished without substantial programing or transferring it to other data.) Id, P 48. In so doing, it identifies the difficulty in even approaching some data, let alone retrieval and privilege identification issues.
Carlson also noted that Illinois lacks a framework for analyzing ESI requests, but ultimately noted that the Illinois discovery rules themselves provide an easy to approach analysis. Basically, once the responding party objects, the burden should shift to the requesting party to show that 1) there is a compelling need for the information; 2) the information is not available from other source; and 3) the requesting party is using the least intrusive means to obtain the information. Id, P 49. In turn, this would serve to protect against disproportionate discovery requests, irrelevant discovery requests, and would help safeguard privacy and confidentiality issues. The Court stated that the discovery rules do not permit a requesting party to rummage through the responding party’s files for helpful information; “A request to search the forensic image of a computer is like asking to search the entire contents of a house merely because some items in the house may be relevant. Because a search is not narrowly restricted to yield only relevant information, it poses a high risk of being overbroad and intrusive in the manner that it violates the constitutional right to privacy.” Carlson, citing Kunkel v. Walton, 179 Ill.2d 519 (1997).
The Court finally noted that open-ended searches of ESI have been allowed only when the computer itself is directly involved in the issues of the case, or where there is evidence of “substantial prior discovery violation by the responding party”. Id, P 55. Again, this must be identified by the court, and not a mere assertion.
While Illinois state trial courts have been slow to address issues involving ESI, it is apparent that the rules, and now the case law, require courts to conduct a considered analysis of the discovery requests, the proportionality of the request for information to the burden or expense in its production, that the information sought is relevant, whether there is a compelling need for it, that it is not available from any other source, and it is the least intrusive means of obtaining the presumed relevant information. The requests of counsel must be narrowly tailored to identify exactly what is requested and why, and the courts’ evaluation may require affidavits, depositions of IT professionals and the completion of privilege logs to outline confidential data. Discovery disputes about ESI will take time, and again can be challenging to Illinois courts who have less sophistication with EMR and ESI, as well as the party ordered to produce the information, given the burden, expense and difficulty. Ultimately, the law requires a very considered and careful analysis, and should work to safeguard parties from unreasonable requests as well as maintain privilege, confidentiality and proprietary interests of healthcare professionals.
However, in litigation, the technological advancements of the EMR can pose serious threats to those who possess or control the Electronically Stored Information (“ESI”). In any medical malpractice case, the plaintiff can seek information deemed relevant to the issues of the case. As a result, there have been increased numbers of requests for healthcare professionals’ audit trails (the stored data of the EMR which traces every chronological transaction made in the EMR) and more recently, the metadata (“the data behind the data”) behind various transactions. These requests for non-medical record ESI pose serious threats to general discovery principles, privacy and proprietary interests, and confidentiality; and, notwithstanding these issues, the data is incredibly difficult to retrieve, often requires IT assistance and leads to time consuming, often irrelevant, discovery nightmares.
In 2016, the Second District Appellate Court issued a comprehensive opinion about the circumstances under which a party may inspect the contents of another party’s computers after the defense sought forensic imaging of all of the plaintiff’s computers to dispute his alleged damages. Carlson v. Jerosek, 2016 IL App. 2d 151248 remains the single most authoritative case which analyzes discovery issues regarding ESI in Illinois to date. The Carlson Court first acknowledged the dearth of Illinois law on the subject of discovery of ESI, and then performed an extensive review of applicable discovery rules and their applications in civil litigation from the Federal Courts, Illinois Courts and foreign jurisdictions, as well as citing to constitutional and privacy concerns protected by the rules. After a lengthy presentation of its analysis, the Carlson Court concluded that the party requesting the inspection of the computer data should be denied the request.
Carlson acknowledged that the 2014 Amendments to the Illinois Civil Discovery Rules adopted the Federal Court Rules, which deal extensively with ESI discovery. Id, P 38. It noted that Illinois Supreme Court Rule 201(b)(1) was amended to specify that a request for “documents” includes ESI; it also added that the Federal Court Rules were drafted to be flexible and expansive as technology changes. Carlson emphasized that these (new) rules add the proportionality provision, which requires courts to determine whether the likely burden or expense of the request outweighs the benefit of the information. This balancing test, according to Carlson, should provide additional protection against abusive ESI discovery requests. Id, P 30.
In so doing, the Carlson Court further acknowledged that the discovery of ESI presents challenges that do not arise with the production of paper documents, “including the risk of substantially higher production costs, the need for technical expert involvement and production and increased privacy concerns.” Id, P 44. Noting that the volume of information that can be stored electronically is vast, is stored at an exponentially greater volume than hard copied documents, is dynamic rather than static, and is sometimes incomprehensible when separated from its system, the Court found that effort and expense in dealing with ESI discovery can be much higher. Thus, the Court emphasized the limits placed on the discovery of ESI under the newly adopted proportionality rule. It also identified categories of ESI that are presumably non-discoverable (including deleted, slack, fragmented or unallocated data, Random Access Memory (RAM), online access data, data in metadata fields that are frequently automatically updated, back up data that is substantially duplicative of other data, legacy data, and information whose retrieval cannot be accomplished without substantial programing or transferring it to other data.) Id, P 48. In so doing, it identifies the difficulty in even approaching some data, let alone retrieval and privilege identification issues.
Carlson also noted that Illinois lacks a framework for analyzing ESI requests, but ultimately noted that the Illinois discovery rules themselves provide an easy to approach analysis. Basically, once the responding party objects, the burden should shift to the requesting party to show that 1) there is a compelling need for the information; 2) the information is not available from other source; and 3) the requesting party is using the least intrusive means to obtain the information. Id, P 49. In turn, this would serve to protect against disproportionate discovery requests, irrelevant discovery requests, and would help safeguard privacy and confidentiality issues. The Court stated that the discovery rules do not permit a requesting party to rummage through the responding party’s files for helpful information; “A request to search the forensic image of a computer is like asking to search the entire contents of a house merely because some items in the house may be relevant. Because a search is not narrowly restricted to yield only relevant information, it poses a high risk of being overbroad and intrusive in the manner that it violates the constitutional right to privacy.” Carlson, citing Kunkel v. Walton, 179 Ill.2d 519 (1997).
The Court finally noted that open-ended searches of ESI have been allowed only when the computer itself is directly involved in the issues of the case, or where there is evidence of “substantial prior discovery violation by the responding party”. Id, P 55. Again, this must be identified by the court, and not a mere assertion.
While Illinois state trial courts have been slow to address issues involving ESI, it is apparent that the rules, and now the case law, require courts to conduct a considered analysis of the discovery requests, the proportionality of the request for information to the burden or expense in its production, that the information sought is relevant, whether there is a compelling need for it, that it is not available from any other source, and it is the least intrusive means of obtaining the presumed relevant information. The requests of counsel must be narrowly tailored to identify exactly what is requested and why, and the courts’ evaluation may require affidavits, depositions of IT professionals and the completion of privilege logs to outline confidential data. Discovery disputes about ESI will take time, and again can be challenging to Illinois courts who have less sophistication with EMR and ESI, as well as the party ordered to produce the information, given the burden, expense and difficulty. Ultimately, the law requires a very considered and careful analysis, and should work to safeguard parties from unreasonable requests as well as maintain privilege, confidentiality and proprietary interests of healthcare professionals.
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.
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.
IF THE IDFPR COMES CALLING…
By: Lisa M. Green
Receiving a Summons and Complaint accusing you of medical malpractice is no doubt a dark day for a doctor but it is nothing compared to the abject fear that a letter from the Illinois Department of Financial and Professional Regulation can strike. The IDFPR is responsible for regulating the approximately 40,000 physicians in the State of Illinois. Under the Medical Practice Act, the IDFPR has the power to restrict the ability to legally practice medicine for more than 40 different reasons ranging from the obvious (drug abuse or mental illness) to the vague (making a misleading statement about your skill set or treatment) or the more common (not including something in a report).
Physicians come to the attention of the IDFPR in a number of ways. An initial claim may arise from a patient’s complaint about care or a referral from an outside agency such as another state’s medical licensing board, State’s Attorney’s Office or the Illinois Department of Revenue. The IDFPR will also conduct a preliminary investigation whenever money is paid out on behalf of a physician to resolve a medical negligence claim either through settlement or verdict. During this investigation, the physician may be required to answer written questions, submit factual information about the claim and sometimes submit medical records. The IDFPR then makes a determination as to whether the matter should be closed or a formal complaint should be initiated. The formal complaint is then typically prosecuted through a series of hearings and ultimately resolved by entry of something called a Consent Order, an agreement by the doctor to accept whatever discipline the IDFPR has decided to impose.
If it sounds bleak, that is because it is. Some of the 40 odd reasons for restricting a physician’s license are elastic enough to encompass some fairly innocuous behavior or have nothing to do with the practice of medicine. Roughly 30 medical professionals (this includes chiropractors) are reprimanded, placed on probation or restricted from practicing altogether every month in Illinois. All are fined sometimes as much as $10,000. Many include doctors who resolved malpractice claims only to discover that the IDFPR had further plans for them.
What can you do to avoid finding yourself on the IDFPR News List after a lawsuit finishes?
Be aware! When a malpractice claim is resolved with the payment of money on your behalf, talk to your defense attorney about what to expect from the IDFPR. Under the Medical Practice Act, you have a duty to report any adverse judgment, settlement or award arising out of a liability claim. The notification is usually done by the insurance carrier but you want to make absolutely sure this requirement is met.
Don’t ignore it! When you do receive a request for information from the IDFPR, do not ignore it. You can be sanctioned for not responding to the request within the prescribed amount of time.
Get legal help! If you are uncertain about how to respond to the preliminary investigation request, ask for help from an attorney. If you receive a formal complaint, you should retain an attorney to represent you in this process. Check your insurance policy as you may have coverage for legal representation.
Physicians come to the attention of the IDFPR in a number of ways. An initial claim may arise from a patient’s complaint about care or a referral from an outside agency such as another state’s medical licensing board, State’s Attorney’s Office or the Illinois Department of Revenue. The IDFPR will also conduct a preliminary investigation whenever money is paid out on behalf of a physician to resolve a medical negligence claim either through settlement or verdict. During this investigation, the physician may be required to answer written questions, submit factual information about the claim and sometimes submit medical records. The IDFPR then makes a determination as to whether the matter should be closed or a formal complaint should be initiated. The formal complaint is then typically prosecuted through a series of hearings and ultimately resolved by entry of something called a Consent Order, an agreement by the doctor to accept whatever discipline the IDFPR has decided to impose.
If it sounds bleak, that is because it is. Some of the 40 odd reasons for restricting a physician’s license are elastic enough to encompass some fairly innocuous behavior or have nothing to do with the practice of medicine. Roughly 30 medical professionals (this includes chiropractors) are reprimanded, placed on probation or restricted from practicing altogether every month in Illinois. All are fined sometimes as much as $10,000. Many include doctors who resolved malpractice claims only to discover that the IDFPR had further plans for them.
What can you do to avoid finding yourself on the IDFPR News List after a lawsuit finishes?
Be aware! When a malpractice claim is resolved with the payment of money on your behalf, talk to your defense attorney about what to expect from the IDFPR. Under the Medical Practice Act, you have a duty to report any adverse judgment, settlement or award arising out of a liability claim. The notification is usually done by the insurance carrier but you want to make absolutely sure this requirement is met.
Don’t ignore it! When you do receive a request for information from the IDFPR, do not ignore it. You can be sanctioned for not responding to the request within the prescribed amount of time.
Get legal help! If you are uncertain about how to respond to the preliminary investigation request, ask for help from an attorney. If you receive a formal complaint, you should retain an attorney to represent you in this process. Check your insurance policy as you may have coverage for legal representation.
YES! JURY SIZE DOES MATTER
By: Amy L. Garland
Effective June 1, 2015 the law in Illinois changed so that a civil lawsuit would be heard by a jury panel of 6 and not 12. Before this law took effect, the parties of the lawsuit had a right to a 12 person jury but could elect to have a 6 person jury panel if both parties agreed. The new law eliminated the right to a 12 person jury panel in its entirety. See “DOES (JURY) SIZE MATTER?” by Erin S. Davis.
Approximately 1 month after the 6 person jury law went into effect, a medical malpractice case was filed and the defendants filed a motion demanding a 12 person jury and also sought a declaration that a 6 person jury was unconstitutional. On September 22, 2016 the Illinois Supreme Court in Kakos, D.D.S. et al v. Jesse Butler, M.D. et al. 2016 IL 120377; 2016 Ill. LEXIS 744 rendered an opinion declaring the 6 person jury law unconstitutional. Arguments made by the attorneys focused on how jury size could affect outcomes but the Supreme Court ultimately focused on the constitutionality of the new law. The Illinois Supreme Court examined the 1970 Constitution and the intent of the drafters and held that there was ample evidence that the right to a 12-person jury was preserved when drafting the Constitution. The Illinois Supreme Court held that “[b]ecause the size of the jury – 12 people – was an essential element of the right of trial by jury enjoyed at the time the 1970 Constitution was drafted, we conclude jury size is an element of the right that has been preserved and protected in the constitution.” Kakos v. Butler, 2016 IL 120377, P28 (Ill. 2016)
The law reducing the size of a jury to 6 in a civil trial is unconstitutional and parties in civil cases have a right to a 12 person jury. Yes, apparently size does matter!
Approximately 1 month after the 6 person jury law went into effect, a medical malpractice case was filed and the defendants filed a motion demanding a 12 person jury and also sought a declaration that a 6 person jury was unconstitutional. On September 22, 2016 the Illinois Supreme Court in Kakos, D.D.S. et al v. Jesse Butler, M.D. et al. 2016 IL 120377; 2016 Ill. LEXIS 744 rendered an opinion declaring the 6 person jury law unconstitutional. Arguments made by the attorneys focused on how jury size could affect outcomes but the Supreme Court ultimately focused on the constitutionality of the new law. The Illinois Supreme Court examined the 1970 Constitution and the intent of the drafters and held that there was ample evidence that the right to a 12-person jury was preserved when drafting the Constitution. The Illinois Supreme Court held that “[b]ecause the size of the jury – 12 people – was an essential element of the right of trial by jury enjoyed at the time the 1970 Constitution was drafted, we conclude jury size is an element of the right that has been preserved and protected in the constitution.” Kakos v. Butler, 2016 IL 120377, P28 (Ill. 2016)
The law reducing the size of a jury to 6 in a civil trial is unconstitutional and parties in civil cases have a right to a 12 person jury. Yes, apparently size does matter!
MLB FRONT OFFICE MISUSES PLAYERS MEDICAL RECORDS, EXEC SUSPENDED
By: Michael M. Rohde
This year’s World Series embodies the notion that the influence of an MLB franchise’s front office is the central ingredient in building a winning ball club. Teams spend millions developing young players, making shrewd trades and signing undervalued free agents. In building a medical negligence case, trial attorneys all agree that the most principal and essential element is the contents of a patient’s medical records. These two concepts do not often intersect, but recently a prominent MLB executive engaged in conduct involving medical records that would cause any healthcare provider to shriek, “What the heck was he thinking?”
In a tactical – and somewhat disturbing – ploy to gain advantages in trade negotiations, San Diego Padres General Manager A.J. Preller instructed the Padres sports medicine staff to deliberately withhold select medical information from the industry-wide medical database accessible to all teams. Following trades involving shaky health circumstances, an investigation revealed Padres trainers maintained two separate medical files for players: one for public disclosure and one for in-house use. As ESPN’s Buster Olney reported, MLB found that Preller’s tactics were utilized with the clear intention of gaining an upper hand in negotiations with other teams. Preller just recently returned from a 30 day suspension without pay.
By relying on these records, teams engaged in trades with the Padres could have asked players to outperform their capabilities, in turn risking injury and possibly millions in future earnings. Additionally, deals between teams were at risk of being deemed fraudulent. Ethical alarms sounded off across the baseball landscape. As expected, Preller’s practices evoked issues of trust between executives and enraged players, their agents, and fans.
Nowhere are issues of trust more prevalent than in the practice of medicine. Healthcare providers make daily life and death decisions in caring for their patients, therefore accurate and consistent charting is paramount.
Most medical malpractice lawsuits admittedly do not involve allegations of fraud or ethics violations as glaring as A.J. Preller, but this story serves as a reminder of the importance of clear and comprehensive charting in the practice of medicine. You never know when one progress note or order will make the difference. All patients, including ballplayers, deserve accurate and complete charting and communication.
The San Diego Padres finished this season 68-94, a record which was good for, you guessed it, dead last.
In a tactical – and somewhat disturbing – ploy to gain advantages in trade negotiations, San Diego Padres General Manager A.J. Preller instructed the Padres sports medicine staff to deliberately withhold select medical information from the industry-wide medical database accessible to all teams. Following trades involving shaky health circumstances, an investigation revealed Padres trainers maintained two separate medical files for players: one for public disclosure and one for in-house use. As ESPN’s Buster Olney reported, MLB found that Preller’s tactics were utilized with the clear intention of gaining an upper hand in negotiations with other teams. Preller just recently returned from a 30 day suspension without pay.
By relying on these records, teams engaged in trades with the Padres could have asked players to outperform their capabilities, in turn risking injury and possibly millions in future earnings. Additionally, deals between teams were at risk of being deemed fraudulent. Ethical alarms sounded off across the baseball landscape. As expected, Preller’s practices evoked issues of trust between executives and enraged players, their agents, and fans.
Nowhere are issues of trust more prevalent than in the practice of medicine. Healthcare providers make daily life and death decisions in caring for their patients, therefore accurate and consistent charting is paramount.
Most medical malpractice lawsuits admittedly do not involve allegations of fraud or ethics violations as glaring as A.J. Preller, but this story serves as a reminder of the importance of clear and comprehensive charting in the practice of medicine. You never know when one progress note or order will make the difference. All patients, including ballplayers, deserve accurate and complete charting and communication.
The San Diego Padres finished this season 68-94, a record which was good for, you guessed it, dead last.
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.
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.
OUTDATED CURRICULUM VITAE EMBROILS PHYSICIAN AND ATTORNEY
By: Michael R. Webber
Danger can lurk in unexpected places for attorneys and their witnesses. During a recent trial in the United States District Court for the Central District of Illinois, Springfield Division, a vague Curriculum Vitae and evasive testimony has led to criminal contempt proceedings against a retained expert witness and possible repercussions for the attorney retaining the expert.
During a May, 2016 prisoner civil rights jury trial, plaintiff presented a retained physician expert witness in support of plaintiff’s claims of medical negligence. As part of routine pre-trial filings, the physician expert’s Curriculum Vitae had been submitted. The Curriculum Vitae stated that the expert had been certified by the American Board of Internal Medicine in 1993. On direct examination before the jury, the expert testified: “Q. Are you board certified in any areas? A. I’ve been board certified in internal medicine. I’ve also been certified by the American Board of Independent Medical Evaluators.” Following this testimony, the expert rendered testimony on relevant standard of care and causation issues in support of plaintiff.
Prior to the conclusion of the expert’s direct examination, a lunch break was taken. When the judge returned to the bench, she advised the parties outside the presence of the jury that she learned from an unrelated attorney over the lunch hour that plaintiff’s expert was not certified by the American Board of Internal Medicine or the American Board of Independent Medical Evaluators. Under direct questioning by the court, plaintiff’s expert conceded that both certifications had lapsed. The court noted that the expert “didn’t exactly lie” on the stand as he testified he had “been” certified. The court subsequently reviewed the expert’s deposition testimony in the same matter, finding it to be “certainly misleading, as it was, the testimony here in court, if not an outright lie.” The court then questioned plaintiff’s counsel regarding his knowledge of the expert’s board certification status, who replied that he “thought” the doctor was board certified. The court went on to state she was “very close” to finding the doctor in contempt of court.
At the conclusion of the evidence, the court readdressed the issue. At that time, the court indicated that she was considering whether any action should be taken as to the expert witness or plaintiff’s counsel. In June, 2016 the court issued a Rule to Show Cause directed to the defense expert for criminal contempt, and further ordered the doctor to supply an updated Curriculum Vitae including the effective and termination dates of all licensing and certifications.
On July 7, 2016 the court conducted a hearing on the criminal contempt proceedings. The court advised the doctor that various potential sanctions were available, and further allowed both the doctor and plaintiff’s counsel to file written memoranda addressing the contempt and potential sanctions. The record does not reflect whether the court has taken any action regarding plaintiff’s counsel.
This is an ongoing matter which will likely be resolved in the near future. Irrespective of the outcome, this matter provides a clear warning to physician witnesses and counsel. Doctors should take all necessary steps to introduce updated and accurate Curriculum Vitae when testifying, especially in anticipation of trial. Attorneys must ensure that witness certifications are accurate and current.
These issues arose in the matter of Trimble v. Gonzales, M.D., 13-cv-3133 (C.D. Ill.; filed 05/08/16). This article will be updated to reflect the outcome of the court’s contempt proceeding.
During a May, 2016 prisoner civil rights jury trial, plaintiff presented a retained physician expert witness in support of plaintiff’s claims of medical negligence. As part of routine pre-trial filings, the physician expert’s Curriculum Vitae had been submitted. The Curriculum Vitae stated that the expert had been certified by the American Board of Internal Medicine in 1993. On direct examination before the jury, the expert testified: “Q. Are you board certified in any areas? A. I’ve been board certified in internal medicine. I’ve also been certified by the American Board of Independent Medical Evaluators.” Following this testimony, the expert rendered testimony on relevant standard of care and causation issues in support of plaintiff.
Prior to the conclusion of the expert’s direct examination, a lunch break was taken. When the judge returned to the bench, she advised the parties outside the presence of the jury that she learned from an unrelated attorney over the lunch hour that plaintiff’s expert was not certified by the American Board of Internal Medicine or the American Board of Independent Medical Evaluators. Under direct questioning by the court, plaintiff’s expert conceded that both certifications had lapsed. The court noted that the expert “didn’t exactly lie” on the stand as he testified he had “been” certified. The court subsequently reviewed the expert’s deposition testimony in the same matter, finding it to be “certainly misleading, as it was, the testimony here in court, if not an outright lie.” The court then questioned plaintiff’s counsel regarding his knowledge of the expert’s board certification status, who replied that he “thought” the doctor was board certified. The court went on to state she was “very close” to finding the doctor in contempt of court.
At the conclusion of the evidence, the court readdressed the issue. At that time, the court indicated that she was considering whether any action should be taken as to the expert witness or plaintiff’s counsel. In June, 2016 the court issued a Rule to Show Cause directed to the defense expert for criminal contempt, and further ordered the doctor to supply an updated Curriculum Vitae including the effective and termination dates of all licensing and certifications.
On July 7, 2016 the court conducted a hearing on the criminal contempt proceedings. The court advised the doctor that various potential sanctions were available, and further allowed both the doctor and plaintiff’s counsel to file written memoranda addressing the contempt and potential sanctions. The record does not reflect whether the court has taken any action regarding plaintiff’s counsel.
This is an ongoing matter which will likely be resolved in the near future. Irrespective of the outcome, this matter provides a clear warning to physician witnesses and counsel. Doctors should take all necessary steps to introduce updated and accurate Curriculum Vitae when testifying, especially in anticipation of trial. Attorneys must ensure that witness certifications are accurate and current.
These issues arose in the matter of Trimble v. Gonzales, M.D., 13-cv-3133 (C.D. Ill.; filed 05/08/16). This article will be updated to reflect the outcome of the court’s contempt proceeding.
HAPPY (BELATED) MOTHER’S DAY
By: Laura J. Young
Amid relatively little fanfare, after finding that “Enabling pregnant women workers to work through pregnancy is good for business,” Illinois embraced a change in law. This Act, known as the Pregnancy Accommodation Act or the Pregnancy Fairness Law, went into effect on January 1, 2015 and has wide-spread impact on the work force in Illinois. (The legislature explicitly stated that “women of child-bearing age are 54% of women workers”! Public Act 098-050(5)(2)). These newly enacted provisions have earned Illinois a progressive place in the national spotlight on what may be sweeping reforms that likely will soon be occurring nationally.
This Act has far-reaching implications: It applies to all employers regardless of how many (or how few) employees. It also applies to part time, full time, and probationary employees. It even extends to job applicants.
This Act holds that it is illegal for an employer to fail to reasonably accommodate a pregnant employee unless the accommodation will impose an undue hardship. The burden is on the employee to make the request. Once she does, the burden shifts to the employer to grant the accommodation unless the employer can show that it would impose an undue hardship to the “ordinary operation of the business.” So, the obvious question is what would be an undue hardship? The court is permitted to look at factors such as the nature and the cost of the accommodation, the financial resources of the company, including the number of employees, and the type of operation.
The types of accommodation that can be requested enable an “employee affected by pregnancy” (the Act includes those who have recently given birth) to perform essential functions. For example, more breaks for water and for bathroom breaks may be an accommodation. In addition, if requested, according to this Act, the employer must provide a “private non-bathroom space for expressing breast milk and breastfeeding”, time off to recover from pregnancy, and leave necessitated by pregnancy. The examples provided by the Act are not meant to be inclusive and go far beyond what many employers would consider necessary using the framework typically used by the Americans With Disabilities Act.
In response to such a request, an employer may ask for documentation from a healthcare provider under certain conditions enumerated by the Act.
Whether this Act will protect the health and jobs of the pregnant work-force remains untested.
For more information, see P.A. 98-1050; 775 ILCS 5/1 et. seq.; State of Illinois, Department of Human Rights.
This Act has far-reaching implications: It applies to all employers regardless of how many (or how few) employees. It also applies to part time, full time, and probationary employees. It even extends to job applicants.
This Act holds that it is illegal for an employer to fail to reasonably accommodate a pregnant employee unless the accommodation will impose an undue hardship. The burden is on the employee to make the request. Once she does, the burden shifts to the employer to grant the accommodation unless the employer can show that it would impose an undue hardship to the “ordinary operation of the business.” So, the obvious question is what would be an undue hardship? The court is permitted to look at factors such as the nature and the cost of the accommodation, the financial resources of the company, including the number of employees, and the type of operation.
The types of accommodation that can be requested enable an “employee affected by pregnancy” (the Act includes those who have recently given birth) to perform essential functions. For example, more breaks for water and for bathroom breaks may be an accommodation. In addition, if requested, according to this Act, the employer must provide a “private non-bathroom space for expressing breast milk and breastfeeding”, time off to recover from pregnancy, and leave necessitated by pregnancy. The examples provided by the Act are not meant to be inclusive and go far beyond what many employers would consider necessary using the framework typically used by the Americans With Disabilities Act.
In response to such a request, an employer may ask for documentation from a healthcare provider under certain conditions enumerated by the Act.
Whether this Act will protect the health and jobs of the pregnant work-force remains untested.
For more information, see P.A. 98-1050; 775 ILCS 5/1 et. seq.; State of Illinois, Department of Human Rights.
LITIGATION BY THREAT IN ILLINOIS
By: Erin S. Davis
As medical malpractice attorneys, we strive to defend every physician and every case, considering every angle, every possible defense, and work to prepare each case for trial.
The scenario that is occurring increasingly often is when a physician with a defensible case is confronted with an “excess verdict” situation. For the uninitiated, this means a case where the verdict potential against the physician is in excess of the applicable insurance coverage. Most physicians carry professional liability insurance coverage of $1-2 million for a given case. If a plaintiff-patient has lost the ability to walk after a spinal surgery with a poor outcome, and the defendant surgeon is found liable at trial, the award by the jury most likely will be in excess of the defendant-physician’s $1-2 million insurance coverage. A motivated plaintiff can collect against the physician’s personal assets for the amount that is not covered by the insurance policy.
Despite years of work by our clients toward the defense of a case, a threat by a plaintiff’s attorney to execute against the personal assets of a physician in the event of an excess verdict often changes the minds of physicians facing imminent trial. They begin to fear for their family, their retirement, and their hard earned financial well-being, despite believing that they treated the patient appropriately. Placing college savings accounts or vacation homes in the hands of a jury can be an awful lot to ask. Hence, the dilemma of with which a physician is presented is whether to seek vindication, or protect hard-earned, well-deserved assets.
This often compels physicians to demand that their insurance company settle the case, thereby putting money in the pocket of an undeserving plaintiff. This, in turn, encourages the filing of more lawsuits by similarly undeserving plaintiffs. As long as a plaintiff can argue there could be damages in excess of an insurance policy’s limits, his or her case might get settled too. Why not give it a try?
You can see how our system has perpetuated this cycle of threats and resulting settlements over the years. How can we fix this? What can we do to offer protections and remedies to deserving patients (who do exist), but also to try to discourage the undeserving from exploiting the weaknesses in our system?
Attempts at tort reform in Illinois have now failed twice. Tort reform has often been aimed at so-called “non-economic damages”. These are the subjective, pain & suffering type damages that we so often see driving up verdict amounts. The problem with capping specific elements of damages continues to be that instead of discouraging frivolous lawsuits (which often see nuisance value type settlements and are thereby not affected by the caps), it instead limits the amounts available to those who are the most legitimately injured.
Rather than attacking the amount of money available for particular types of damages, physicians and hospitals should press for regulations that limit their exposure to the amount of insurance coverage available, but concede to a requirement that every physician and hospital carry a minimum amount of malpractice insurance.
Our neighboring states of Indiana and Wisconsin have established caps systems but have created Patient Compensation Funds. These Funds allow plaintiffs who have obtained all available insurance (i.e. those who are truly catastrophically injured) to appeal to a second source of funding to cover their excess damages. These Patient Compensation Funds are paid into by every physician and hospital in the state. A new system in Illinois combining the limitation of physician’s and hospital’s exposure to available insurance coverage, and creating a Patient Compensation Fund, would be a significant and important action towards helping solve the medical malpractice crisis in Illinois, and keeping doctors in our state.
There is no valid reason for the plaintiffs bar to oppose these types of reform; but, they would of course prefer to use the current system that allows them to threaten the defendant with the possible actions of a run-away jury. However, instituting these reforms will allow physicians to fight the cases they should fight, and settle the cases they should settle. Threatening physicians to settle a case or face a jury of “peers” and risk the loss of their financial security is a practice that must no longer be tolerated in order for our system to sustain its integrity.
The scenario that is occurring increasingly often is when a physician with a defensible case is confronted with an “excess verdict” situation. For the uninitiated, this means a case where the verdict potential against the physician is in excess of the applicable insurance coverage. Most physicians carry professional liability insurance coverage of $1-2 million for a given case. If a plaintiff-patient has lost the ability to walk after a spinal surgery with a poor outcome, and the defendant surgeon is found liable at trial, the award by the jury most likely will be in excess of the defendant-physician’s $1-2 million insurance coverage. A motivated plaintiff can collect against the physician’s personal assets for the amount that is not covered by the insurance policy.
Despite years of work by our clients toward the defense of a case, a threat by a plaintiff’s attorney to execute against the personal assets of a physician in the event of an excess verdict often changes the minds of physicians facing imminent trial. They begin to fear for their family, their retirement, and their hard earned financial well-being, despite believing that they treated the patient appropriately. Placing college savings accounts or vacation homes in the hands of a jury can be an awful lot to ask. Hence, the dilemma of with which a physician is presented is whether to seek vindication, or protect hard-earned, well-deserved assets.
This often compels physicians to demand that their insurance company settle the case, thereby putting money in the pocket of an undeserving plaintiff. This, in turn, encourages the filing of more lawsuits by similarly undeserving plaintiffs. As long as a plaintiff can argue there could be damages in excess of an insurance policy’s limits, his or her case might get settled too. Why not give it a try?
You can see how our system has perpetuated this cycle of threats and resulting settlements over the years. How can we fix this? What can we do to offer protections and remedies to deserving patients (who do exist), but also to try to discourage the undeserving from exploiting the weaknesses in our system?
Attempts at tort reform in Illinois have now failed twice. Tort reform has often been aimed at so-called “non-economic damages”. These are the subjective, pain & suffering type damages that we so often see driving up verdict amounts. The problem with capping specific elements of damages continues to be that instead of discouraging frivolous lawsuits (which often see nuisance value type settlements and are thereby not affected by the caps), it instead limits the amounts available to those who are the most legitimately injured.
Rather than attacking the amount of money available for particular types of damages, physicians and hospitals should press for regulations that limit their exposure to the amount of insurance coverage available, but concede to a requirement that every physician and hospital carry a minimum amount of malpractice insurance.
Our neighboring states of Indiana and Wisconsin have established caps systems but have created Patient Compensation Funds. These Funds allow plaintiffs who have obtained all available insurance (i.e. those who are truly catastrophically injured) to appeal to a second source of funding to cover their excess damages. These Patient Compensation Funds are paid into by every physician and hospital in the state. A new system in Illinois combining the limitation of physician’s and hospital’s exposure to available insurance coverage, and creating a Patient Compensation Fund, would be a significant and important action towards helping solve the medical malpractice crisis in Illinois, and keeping doctors in our state.
There is no valid reason for the plaintiffs bar to oppose these types of reform; but, they would of course prefer to use the current system that allows them to threaten the defendant with the possible actions of a run-away jury. However, instituting these reforms will allow physicians to fight the cases they should fight, and settle the cases they should settle. Threatening physicians to settle a case or face a jury of “peers” and risk the loss of their financial security is a practice that must no longer be tolerated in order for our system to sustain its integrity.
DOES (JURY) SIZE MATTER?
By: Erin S. Davis
Effective June 1, 2015, new legislation changes the law in Illinois to decree that civil lawsuits in Illinois will be heard by a jury of 6. This represents a change from the previous law, requiring a jury of 12 for cases valued at over $50,000. (It also increases juror pay to $50 per day of jury service.) This applies to lawsuits filed on or after June 1, 2015, not lawsuits pending prior to that date.
This change was quietly propelled at near-record pace through the Illinois State Legislature in November and December 2014 and signed into law by lame-duck Governor Quinn with little to no public debate, significant study, or contemplation. The Plaintiff’s bar instigated the legislation under the guise of a budgetary savings for cash-strapped jurisdictions who are required to compensate jurors.
So why did the Plaintiff’s bar push for this change? How does it benefit them? And, most importantly, what does this mean for us, those representing physicians, hospitals, and other defendants who are dragged into these lawsuits?
Consider the differences in any room with 6 people versus 12 people discussing a hot button issue. There will always be “sleeper” jurors – those who do not take the responsibility seriously and who will acquiesce to the majority without resistance – who are usually identified by their snoring in the back row during evidence. It means that a single “alpha juror” – those with an air of authority who usually pay a great deal of attention – has fewer minds to sway, fewer brows to beat, and an easier time persuading the remaining jurors to bend to their will.
Reducing a jury size from 12 to 6 means 6 fewer voices, less debate, and a more narrow pool of perspectives. It means less diversity of thought, human experience, and education. In notoriously Plaintiff-leaning Cook County, this change probably reduces the chances that Plaintiff will end up with a well-educated accountant or Ph.D. on their jury. In a smaller group of individuals, can we rely on a single defense-inclined juror to stand up without an ally?
Arguably, this cuts both ways. Where there is a sole Plaintiff-leaning juror, he or she will be as easily subjugated to the will of the group as a sole Defendant-leaning juror. As civil trials are often an exercise in the prediction of outcome, financial exposure, and how the evidence will be perceived and weighed by a jury, is a smaller jury more or less predictable?
There will now be only 6 individuals reflecting on the evidence heard in the courtroom, attempting to remember who said what. Where memory is concerned, perhaps 12 minds are able to reconstruct more accurately and completely than 6.
A criminal trial in Illinois will still be heard by a 12 person jury. Why are civil cases not entitled to the same examination? The level of personal interest we see physicians take every day in their cases, including the potential effects on their license, practices, malpractice insurance, and personal finances, are certainly equally significant to them as the concerns of a criminal defendant.
When all is said and done, though, the issue remains the same: is diversity of thought and robust consideration of the issues as thorough with 6 jurors versus 12? And should this not be the overriding goal of our system of justice?
Only time and experience will answer many of these questions, but of one thing we can be sure: the Plaintiff’s bar would not have snuck this one in at the buzzer if they didn’t feel it would significantly benefit them.
This change was quietly propelled at near-record pace through the Illinois State Legislature in November and December 2014 and signed into law by lame-duck Governor Quinn with little to no public debate, significant study, or contemplation. The Plaintiff’s bar instigated the legislation under the guise of a budgetary savings for cash-strapped jurisdictions who are required to compensate jurors.
So why did the Plaintiff’s bar push for this change? How does it benefit them? And, most importantly, what does this mean for us, those representing physicians, hospitals, and other defendants who are dragged into these lawsuits?
Consider the differences in any room with 6 people versus 12 people discussing a hot button issue. There will always be “sleeper” jurors – those who do not take the responsibility seriously and who will acquiesce to the majority without resistance – who are usually identified by their snoring in the back row during evidence. It means that a single “alpha juror” – those with an air of authority who usually pay a great deal of attention – has fewer minds to sway, fewer brows to beat, and an easier time persuading the remaining jurors to bend to their will.
Reducing a jury size from 12 to 6 means 6 fewer voices, less debate, and a more narrow pool of perspectives. It means less diversity of thought, human experience, and education. In notoriously Plaintiff-leaning Cook County, this change probably reduces the chances that Plaintiff will end up with a well-educated accountant or Ph.D. on their jury. In a smaller group of individuals, can we rely on a single defense-inclined juror to stand up without an ally?
Arguably, this cuts both ways. Where there is a sole Plaintiff-leaning juror, he or she will be as easily subjugated to the will of the group as a sole Defendant-leaning juror. As civil trials are often an exercise in the prediction of outcome, financial exposure, and how the evidence will be perceived and weighed by a jury, is a smaller jury more or less predictable?
There will now be only 6 individuals reflecting on the evidence heard in the courtroom, attempting to remember who said what. Where memory is concerned, perhaps 12 minds are able to reconstruct more accurately and completely than 6.
A criminal trial in Illinois will still be heard by a 12 person jury. Why are civil cases not entitled to the same examination? The level of personal interest we see physicians take every day in their cases, including the potential effects on their license, practices, malpractice insurance, and personal finances, are certainly equally significant to them as the concerns of a criminal defendant.
When all is said and done, though, the issue remains the same: is diversity of thought and robust consideration of the issues as thorough with 6 jurors versus 12? And should this not be the overriding goal of our system of justice?
Only time and experience will answer many of these questions, but of one thing we can be sure: the Plaintiff’s bar would not have snuck this one in at the buzzer if they didn’t feel it would significantly benefit them.
GROUPON: PERMISSIBLE MARKETING OR PROHIBITED FEE SPLITTING?
By: Michael R. Webber
Most people are familiar with one or more of the myriad of web-based discount sites, such as Woot, LivingSocial, and of course, Groupon. These companies, and many more, are all part of the “deal-of-the-day” industry offering short-term discounts on goods, and increasingly, services. In some states, these services have recently started to include services such as dental cleanings, laser hair removal and varicose vein treatments.
Some service providers, both within and outside the health care industry, have seen these discounted offers as a means to increase visibility and attract new business. In this view, the discounts appear little different from traditional advertising which includes a first time customer discount. However, traditional advertising typically involves a flat rate to make the offer (such as a newspaper ad) and all advertisers pay the same price. As a result, there is no per diem relationship between the cost of the advertisement and the number of individuals accepting the offer.
Under the traditional Groupon model, there is a fee paid to the marketer (such as Groupon) for each voucher sold, typically 50% of the voucher cost to the consumer. It is this per diem association which raises concerns under the Illinois Medical Practice Act.
Section 22.2 of the Medical Practice Act (225 ILCS 60/22.2) is titled “Prohibition against fee splitting” and states: “(a) A licensee under this Act may not directly or indirectly divide, share or split any professional fee or other form of compensation for professional services with anyone in exchange for a referral or otherwise…” Further, section 22.2(f) states that “a licensee under this Act may not divide, share or split a professional service fee with, or otherwise directly or indirectly pay a percentage of the licensee’s professional service fees, revenues or profits to anyone for: (i) the marketing or management of the licensee’s practice, … (iv) negotiating fees, charges or terms of service or payment on behalf of the licensee, or (v) including the licensee in a program whereby patients or beneficiaries are provided an incentive to use the services of the licensee.”
Based upon section 22.2, a licensee under the Medical Practice Act may be at risk of violating the fee splitting prohibition when utilizing Groupon-type services. In addition, physicians participating in Federal health care programs, such as Medicare or Medicaid, could face criminal liability under the Federal “Anti-Kickback Statute”, 42 U.S.C. §1320a-7b(b).
This author is aware that the Illinois Department of Financial and Professional Regulation is conducting a review of the issues raised by Groupon-type services, but no official position has been announced by the Department. Until this issue is more clearly defined, any licensee under the Medical Practice Act should approach these arrangements with caution, and when in doubt, consult a knowledgeable attorney.
Some service providers, both within and outside the health care industry, have seen these discounted offers as a means to increase visibility and attract new business. In this view, the discounts appear little different from traditional advertising which includes a first time customer discount. However, traditional advertising typically involves a flat rate to make the offer (such as a newspaper ad) and all advertisers pay the same price. As a result, there is no per diem relationship between the cost of the advertisement and the number of individuals accepting the offer.
Under the traditional Groupon model, there is a fee paid to the marketer (such as Groupon) for each voucher sold, typically 50% of the voucher cost to the consumer. It is this per diem association which raises concerns under the Illinois Medical Practice Act.
Section 22.2 of the Medical Practice Act (225 ILCS 60/22.2) is titled “Prohibition against fee splitting” and states: “(a) A licensee under this Act may not directly or indirectly divide, share or split any professional fee or other form of compensation for professional services with anyone in exchange for a referral or otherwise…” Further, section 22.2(f) states that “a licensee under this Act may not divide, share or split a professional service fee with, or otherwise directly or indirectly pay a percentage of the licensee’s professional service fees, revenues or profits to anyone for: (i) the marketing or management of the licensee’s practice, … (iv) negotiating fees, charges or terms of service or payment on behalf of the licensee, or (v) including the licensee in a program whereby patients or beneficiaries are provided an incentive to use the services of the licensee.”
Based upon section 22.2, a licensee under the Medical Practice Act may be at risk of violating the fee splitting prohibition when utilizing Groupon-type services. In addition, physicians participating in Federal health care programs, such as Medicare or Medicaid, could face criminal liability under the Federal “Anti-Kickback Statute”, 42 U.S.C. §1320a-7b(b).
This author is aware that the Illinois Department of Financial and Professional Regulation is conducting a review of the issues raised by Groupon-type services, but no official position has been announced by the Department. Until this issue is more clearly defined, any licensee under the Medical Practice Act should approach these arrangements with caution, and when in doubt, consult a knowledgeable attorney.
POKE THE JURY? ABA “LIKES” ONLINE SURFING OF POTENTIAL JURORS
By: Michael M. Rohde
Trial attorneys will tell you that a favorable jury can make or break a case. Because every juror walks into a courtroom with their own story, jury consultants are paid handsomely to identify characteristics of the ideal juror demographics prior to any given trial. Before the internet was filled with tweets, pokes, and likes, potential jurors were anonymous when they entered the courtroom. Now, a trove of unique juror information is available for any litigant with a smartphone, two thumbs and a signal.
The American Bar Association recently released a formal opinion stating that searching for and viewing potential jurors’ online profiles is completely ethical. As long as the information is available to the public and no communication is exchanged with the juror, the ABA says click away. However, the opinion clarifies that requesting access to private information by requesting a “friendship” or following the juror is considered unethical.
Attorneys can request dismissal if biases or prejudices are uncovered. Therefore, knowing a juror’s political beliefs or past affiliations can weigh heavily on whether that juror is favorable to your client.
The information shared in status updates and tweets has obviously proven to be valuable in ways spanning multiple disciplines. For lawyers, the ways are still growing. Not only can favorable beliefs and views be uncovered, it allows an experienced trial attorney to play the room by tailoring arguments, questioning and analogies pleasing to the audience.
While the results of the ABA’s two-year review formalizes what attorneys have done for years, the practical implications remain cloudy. Because the mantra, “if it’s on the internet it must be true” might not always be the case, trolling for online information is a proceed-with-caution proposition. Consider this: A potential juror has an active Twitter account, and this juror’s tweets seemingly represent a parallel interest to your client, whatever the interest may be. Slam dunk, right? Perhaps the tweets are filled with sarcasm, and the juror is really favorable to the other side. What’s more, the account might belong to an entirely different person who just happens to share the same name.
Even with potential traps or false fronts, the advantages of searching for a juror’s online footprint outweigh the negatives. However, it seems as though this information should be supplementary to the tried and true practices of the experienced attorney’s voir dire questioning, and of course, gut instinct.
Attorneys are notorious for reticence to technological advances, but clearly it behooves us to familiarize ourselves with the dynamics of America’s favorite social media sites. After all, knowing the smallest nugget could hold the key to a favorable verdict. Considering the wealth of data available, it begs the question why the advantages to using social media for jury selection weren’t discovered earlier.
The American Bar Association recently released a formal opinion stating that searching for and viewing potential jurors’ online profiles is completely ethical. As long as the information is available to the public and no communication is exchanged with the juror, the ABA says click away. However, the opinion clarifies that requesting access to private information by requesting a “friendship” or following the juror is considered unethical.
Attorneys can request dismissal if biases or prejudices are uncovered. Therefore, knowing a juror’s political beliefs or past affiliations can weigh heavily on whether that juror is favorable to your client.
The information shared in status updates and tweets has obviously proven to be valuable in ways spanning multiple disciplines. For lawyers, the ways are still growing. Not only can favorable beliefs and views be uncovered, it allows an experienced trial attorney to play the room by tailoring arguments, questioning and analogies pleasing to the audience.
While the results of the ABA’s two-year review formalizes what attorneys have done for years, the practical implications remain cloudy. Because the mantra, “if it’s on the internet it must be true” might not always be the case, trolling for online information is a proceed-with-caution proposition. Consider this: A potential juror has an active Twitter account, and this juror’s tweets seemingly represent a parallel interest to your client, whatever the interest may be. Slam dunk, right? Perhaps the tweets are filled with sarcasm, and the juror is really favorable to the other side. What’s more, the account might belong to an entirely different person who just happens to share the same name.
Even with potential traps or false fronts, the advantages of searching for a juror’s online footprint outweigh the negatives. However, it seems as though this information should be supplementary to the tried and true practices of the experienced attorney’s voir dire questioning, and of course, gut instinct.
Attorneys are notorious for reticence to technological advances, but clearly it behooves us to familiarize ourselves with the dynamics of America’s favorite social media sites. After all, knowing the smallest nugget could hold the key to a favorable verdict. Considering the wealth of data available, it begs the question why the advantages to using social media for jury selection weren’t discovered earlier.
MEDICAL MARIJUANA COMES TO ILLINOIS
By: Amy L. Garland
On January 1, 2014, Illinois passed the Compassionate Use of Medical Cannabis Pilot Program Act (Medical Marijuana Program). It is said to be one of the strictest medical marijuana laws passed in this country. The pilot program will conclude at the end of 2017, unless lawmakers decide to extend it. Illinois will have sixty (60) dispensaries and twenty-one (21) cultivation centers for marijuana growers. People who want to grow or sell marijuana will have to pay a non-refundable application fee of $25,000.00 for a cultivation center and $5,000.00 for a dispensary. Cultivation centers will also pay a 7% privilege tax on the sale price per ounce of marijuana. Consumption will likely be available in early 2015.
There are four (4) Illinois agencies regulating and creating rules for the pilot program. The Illinois Department of Financial and Professional Regulation (IDFPR) will monitor the dispensing of the drug and monitor the doctors authorized to dispense the drug. The Illinois Department of Agriculture will regulate the growing of the marijuana. The Illinois Department of Public Health (IDPH) will enroll patients and certify physicians, and the Illinois Department of Revenue will oversee the revenue and taxation.
It is not yet known how many patients will participate, but it is estimated there will be at least 100,000 to 200,000 patients eligible, based on their medical conditions. Patients who want to participate must get an identification card through the Illinois Department of Public Health (IDPH) certifying that he/she suffers from one of more than thirty (30) qualifying illnesses. In addition, they must have a relationship with a treating physician, be finger printed, undergo a background check and pay a fee. As of early October 2014, approximately 6,300 patients started the application process and IDPH has received over 800 completed applications.
A physician who certifies a patient as having a qualified illness must have reasonable expertise in the condition. Patients who have a qualified illness[i] and are over the age of twenty-one (21) are able to purchase 2.5 ounces every two weeks but may apply for a waiver where a physician provides a substantial medical basis and has signed a “written statement asserting that, based on the patient’s medical history, in the physician’s professional judgment, 2.5 ounces is an insufficient adequate supply for a 14-day period to properly alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating condition”. 410 ILCS 130/10 (a)(2). Patients who are excluded include pediatric patients, those who are active duty law enforcement officers, those who drive a bus or have a commercial driver’s license and those who were convicted of certain “excluded offenses”.
The Medical Marijuana Program also sets forth numerous requirements that apply to the physician. A physician who certifies a debilitating medical condition must be currently licensed, in good standing and hold a controlled substance license under Article III of the Illinois Controlled Substance Act. The physician making a medical cannabis recommendation shall comply with generally accepted standards of medical practice and must physically examine the patient. This exam cannot be done via telemedicine. Physicians who certify a patient must provide a written certification that is dated and signed stating “(1) that in the physician’s professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of cannabis to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition; (2) that the qualifying patient has a debilitating medical condition and specifying the debilitating medical condition the qualifying patient has; and (3) that the patient is under the physician’s care for the debilitating medical condition. A written certification shall be made only in a course of a bona fide physician-patient relationship, after the physician has completed an assessment of the qualifying patient’s medical history, reviewed relevant records related to the patient’s debilitating condition and conducted a physical exam”. 410 ILCS 130/10 (y). Veterans who receive treatment at the VA Hospital will have a bona fide physician/patient relationship with that VA physician if the patient was evaluated and treated for his or her debilitating medical condition at the VA Hospital.
The physician must also maintain a record keeping system for all patients he/she has recommended the use of medical cannabis. “These records shall be accessible to and subject to review by the Department of Public Health and Department of Financial and Professional Regulation upon request”. 410 ILCS 130/35 (a)(4).
The Act also legislates against anticipated or perceived conflicts on the part of the prescribing physician. Physicians cannot “accept, solicit or offer, any form of remuneration from or to a qualifying patient, primary caregiver, cultivation center or dispensing organization”. 410 ILCS 130/35 (b)(1). Physicians cannot offer a discount to qualifying patients who agree to use a particular primary caregiver or a dispensing organization for medical cannabis. Physicians cannot conduct personal physical exams of patients for purposes of diagnosing a debilitating medical condition where medical cannabis is sold or distributed or at the address of a principal officer or employee. Physicians may not “hold a direct or indirect economic interest in a cultivation center or dispensing organization if he or she recommends the use of medical cannabis to qualified patients or is in partnership or other fee or profit sharing relationship with a physician who recommends medical cannabis”. 410 ILCS 130/35 (b)(4). A physician cannot “serve on the board of directors or as an employee of a cultivation center or a dispensing organization”. 410 ILCS 130/35 (b)(5). Physicians cannot refer patients to a specific cultivation center, a dispensing organization, or a registered designated caregiver and cannot advertise in a cultivation center or a dispensing organization.
Physicians who participate in the program are not subject to arrest, prosecution, penalty, and will not be denied any rights or privileges including civil penalty or disciplinary action by a licensing board solely for providing written certifications for patients to use medical cannabis.
The Act also provides a confidentiality section relating to records received and kept by the Department of Public Health (IDPH) and other agencies. The agencies are bound by all federal privacy laws including the Health Insurance Portability and Accountability Act (HIPAA), and exempt from the Freedom of Information Act (FOIA). The records are “not subject to disclosure to any individual, public or private entity, except as necessary for authorized employees of the authorized agencies to perform official duties…” 410 ILCS 130/145(a). It does not appear that records such as applications, physician certifications and medical records would be turned over in the course of a medical malpractice case.
The Medical Marijuana Program is a work in progress and will likely require changes as issues arise. It is important for physicians to stay current on the requirements and to know which conditions qualify and what is necessary to certify a patient to participate in the program.
[i]”‘Debilitating medical condition’ mean one of more of the following: …
cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, cachexia/wasting syndrome, muscular dystrophy, severe fibromyalgia, spinal cord disease, including but not limited to arachnoiditis, Tarlov cysts, hydromyelia, syringomyelia, Rheumatoid arthritis, fibrous dysplasia, spinal cord injury, traumatic brain injury and post-concussion syndrome, Multiple Sclerosis, Arnold-Chiari malformation and Syringomyelia, Spinocerebellar Ataxia (SCA), Parkinson’s, Tourette’s, Myoclonus, Dystonia, Reflex Sympathetic Dystrophy, RSD (Complex Regional Pain Syndromes Type I), Causalgia, CRPS (Complex Regional Pain Syndromes Type II), Neurofibromatosis, Chronic Inflammatory Demyelinating Polyneuropathy, Sjogren’s syndrome, Lupus, Interstitial Cystitis, Myasthenia Gravis, Hydrocephalus, nail-patella syndrome, residual limb pain, or the treatment of these conditions; (2) or any other debilitating medical condition or its treatment that is added by the Department of Public Health by rule as provided in Section 45″. 410 ILCS 130/10 (h)(1)(2) (2014).
There are four (4) Illinois agencies regulating and creating rules for the pilot program. The Illinois Department of Financial and Professional Regulation (IDFPR) will monitor the dispensing of the drug and monitor the doctors authorized to dispense the drug. The Illinois Department of Agriculture will regulate the growing of the marijuana. The Illinois Department of Public Health (IDPH) will enroll patients and certify physicians, and the Illinois Department of Revenue will oversee the revenue and taxation.
It is not yet known how many patients will participate, but it is estimated there will be at least 100,000 to 200,000 patients eligible, based on their medical conditions. Patients who want to participate must get an identification card through the Illinois Department of Public Health (IDPH) certifying that he/she suffers from one of more than thirty (30) qualifying illnesses. In addition, they must have a relationship with a treating physician, be finger printed, undergo a background check and pay a fee. As of early October 2014, approximately 6,300 patients started the application process and IDPH has received over 800 completed applications.
A physician who certifies a patient as having a qualified illness must have reasonable expertise in the condition. Patients who have a qualified illness[i] and are over the age of twenty-one (21) are able to purchase 2.5 ounces every two weeks but may apply for a waiver where a physician provides a substantial medical basis and has signed a “written statement asserting that, based on the patient’s medical history, in the physician’s professional judgment, 2.5 ounces is an insufficient adequate supply for a 14-day period to properly alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating condition”. 410 ILCS 130/10 (a)(2). Patients who are excluded include pediatric patients, those who are active duty law enforcement officers, those who drive a bus or have a commercial driver’s license and those who were convicted of certain “excluded offenses”.
The Medical Marijuana Program also sets forth numerous requirements that apply to the physician. A physician who certifies a debilitating medical condition must be currently licensed, in good standing and hold a controlled substance license under Article III of the Illinois Controlled Substance Act. The physician making a medical cannabis recommendation shall comply with generally accepted standards of medical practice and must physically examine the patient. This exam cannot be done via telemedicine. Physicians who certify a patient must provide a written certification that is dated and signed stating “(1) that in the physician’s professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of cannabis to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition; (2) that the qualifying patient has a debilitating medical condition and specifying the debilitating medical condition the qualifying patient has; and (3) that the patient is under the physician’s care for the debilitating medical condition. A written certification shall be made only in a course of a bona fide physician-patient relationship, after the physician has completed an assessment of the qualifying patient’s medical history, reviewed relevant records related to the patient’s debilitating condition and conducted a physical exam”. 410 ILCS 130/10 (y). Veterans who receive treatment at the VA Hospital will have a bona fide physician/patient relationship with that VA physician if the patient was evaluated and treated for his or her debilitating medical condition at the VA Hospital.
The physician must also maintain a record keeping system for all patients he/she has recommended the use of medical cannabis. “These records shall be accessible to and subject to review by the Department of Public Health and Department of Financial and Professional Regulation upon request”. 410 ILCS 130/35 (a)(4).
The Act also legislates against anticipated or perceived conflicts on the part of the prescribing physician. Physicians cannot “accept, solicit or offer, any form of remuneration from or to a qualifying patient, primary caregiver, cultivation center or dispensing organization”. 410 ILCS 130/35 (b)(1). Physicians cannot offer a discount to qualifying patients who agree to use a particular primary caregiver or a dispensing organization for medical cannabis. Physicians cannot conduct personal physical exams of patients for purposes of diagnosing a debilitating medical condition where medical cannabis is sold or distributed or at the address of a principal officer or employee. Physicians may not “hold a direct or indirect economic interest in a cultivation center or dispensing organization if he or she recommends the use of medical cannabis to qualified patients or is in partnership or other fee or profit sharing relationship with a physician who recommends medical cannabis”. 410 ILCS 130/35 (b)(4). A physician cannot “serve on the board of directors or as an employee of a cultivation center or a dispensing organization”. 410 ILCS 130/35 (b)(5). Physicians cannot refer patients to a specific cultivation center, a dispensing organization, or a registered designated caregiver and cannot advertise in a cultivation center or a dispensing organization.
Physicians who participate in the program are not subject to arrest, prosecution, penalty, and will not be denied any rights or privileges including civil penalty or disciplinary action by a licensing board solely for providing written certifications for patients to use medical cannabis.
The Act also provides a confidentiality section relating to records received and kept by the Department of Public Health (IDPH) and other agencies. The agencies are bound by all federal privacy laws including the Health Insurance Portability and Accountability Act (HIPAA), and exempt from the Freedom of Information Act (FOIA). The records are “not subject to disclosure to any individual, public or private entity, except as necessary for authorized employees of the authorized agencies to perform official duties…” 410 ILCS 130/145(a). It does not appear that records such as applications, physician certifications and medical records would be turned over in the course of a medical malpractice case.
The Medical Marijuana Program is a work in progress and will likely require changes as issues arise. It is important for physicians to stay current on the requirements and to know which conditions qualify and what is necessary to certify a patient to participate in the program.
[i]”‘Debilitating medical condition’ mean one of more of the following: …
cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, cachexia/wasting syndrome, muscular dystrophy, severe fibromyalgia, spinal cord disease, including but not limited to arachnoiditis, Tarlov cysts, hydromyelia, syringomyelia, Rheumatoid arthritis, fibrous dysplasia, spinal cord injury, traumatic brain injury and post-concussion syndrome, Multiple Sclerosis, Arnold-Chiari malformation and Syringomyelia, Spinocerebellar Ataxia (SCA), Parkinson’s, Tourette’s, Myoclonus, Dystonia, Reflex Sympathetic Dystrophy, RSD (Complex Regional Pain Syndromes Type I), Causalgia, CRPS (Complex Regional Pain Syndromes Type II), Neurofibromatosis, Chronic Inflammatory Demyelinating Polyneuropathy, Sjogren’s syndrome, Lupus, Interstitial Cystitis, Myasthenia Gravis, Hydrocephalus, nail-patella syndrome, residual limb pain, or the treatment of these conditions; (2) or any other debilitating medical condition or its treatment that is added by the Department of Public Health by rule as provided in Section 45″. 410 ILCS 130/10 (h)(1)(2) (2014).
IT’S NEVER “JUST” A DEPOSITION
By: Thomas M. Harvick
At one time or another, every physician is served a subpoena for deposition requesting their testimony as a treating physician of the plaintiff. The subpoena looks harmless enough, especially when the physician being served is not a named Defendant in the lawsuit. Generally, the case will involve a fall-down or auto accident and the plaintiff’s lawyer is seeking the physician’s testimony about the plaintiff’s injuries. For a physician, this might seem like a piece of cake, but hidden dangers might lurk when offering testimony discussing care administered to a patient.
When a subpoena crosses a physician’s desk, the physician may consider retaining a lawyer. Often, lawsuits allege complex and convoluted situations, and depositions are official court proceedings with numerous consequences. An attorney in the physician’s corner can assist in locating and reviewing all of the relevant medical records and the plaintiff’s Complaint, as well as preparing the physician for the likely areas of questioning.
It’s important for physicians not to underestimate the ramifications of their testimony. Without an attorney, a physician might answer questions that unwittingly put themselves in danger of being added as a Defendant. Those “innocent” questions can be framed to put the physician’s treatment at issue giving rise to the new “Amended” Complaint adding them as a Defendant. Frequently during depositions, physicians will unintentionally criticize prior doctors and their treatment, usually without knowing all facts and circumstances facing the other physician when they treated the plaintiff. If the case involves malpractice allegations against a doctor, those “helpful” off-hand remarks could unfairly hinder the defense of that physician. If called to testify at trial, the deposition testimony could put the physician in a very embarrassing and uncomfortable position.
A deposition is not the physician’s “ballpark” where they’re comfortable or routinely in charge. Generally, physicians lack the experience or training to go it alone and run the risk of putting themselves or other physicians in jeopardy. More often than not, the attorney is experienced in asking all of the right questions at deposition to prove various issues in the case. That lawyer also is familiar with the medical issues involved by his own review or by the assistance received from physicians and other health professionals who work as medical-legal consultants.
Consulting with an experienced attorney prior to offering testimony will allow the treating physician to testify confidently in a deposition. Not only will the doctor be prepared on the medical issues, but he or she will also be protected from improper or unfair questions. Under Illinois court rules governing depositions, many questions do not have to be answered for numerous legitimate reasons. An attorney’s knowledge of evidentiary rules can help a physician navigate this seemingly innocent ordeal. Without representation, many unfair/improper questions may be asked and answered unnecessarily. By answering proper questions about care and treatment, the physician can support the patient while avoiding “standard of care” questions directed at the physician’s care. Staying neutral on such questions require both Plaintiffs and Defendants to retain their own “expert” witnesses to prove or defend those issues.
When required to give a deposition, it’s to everyone’s benefit if the physician is represented by an attorney. Many insurance companies or hospital risk management programs provide deposition representation to assist physicians through this legal process and to help protect and prevent the physician from commenting upon issues outside of his or her treatment. Utilizing these programs can avoid turning that auto or fall-down case into a malpractice case.
When a subpoena crosses a physician’s desk, the physician may consider retaining a lawyer. Often, lawsuits allege complex and convoluted situations, and depositions are official court proceedings with numerous consequences. An attorney in the physician’s corner can assist in locating and reviewing all of the relevant medical records and the plaintiff’s Complaint, as well as preparing the physician for the likely areas of questioning.
It’s important for physicians not to underestimate the ramifications of their testimony. Without an attorney, a physician might answer questions that unwittingly put themselves in danger of being added as a Defendant. Those “innocent” questions can be framed to put the physician’s treatment at issue giving rise to the new “Amended” Complaint adding them as a Defendant. Frequently during depositions, physicians will unintentionally criticize prior doctors and their treatment, usually without knowing all facts and circumstances facing the other physician when they treated the plaintiff. If the case involves malpractice allegations against a doctor, those “helpful” off-hand remarks could unfairly hinder the defense of that physician. If called to testify at trial, the deposition testimony could put the physician in a very embarrassing and uncomfortable position.
A deposition is not the physician’s “ballpark” where they’re comfortable or routinely in charge. Generally, physicians lack the experience or training to go it alone and run the risk of putting themselves or other physicians in jeopardy. More often than not, the attorney is experienced in asking all of the right questions at deposition to prove various issues in the case. That lawyer also is familiar with the medical issues involved by his own review or by the assistance received from physicians and other health professionals who work as medical-legal consultants.
Consulting with an experienced attorney prior to offering testimony will allow the treating physician to testify confidently in a deposition. Not only will the doctor be prepared on the medical issues, but he or she will also be protected from improper or unfair questions. Under Illinois court rules governing depositions, many questions do not have to be answered for numerous legitimate reasons. An attorney’s knowledge of evidentiary rules can help a physician navigate this seemingly innocent ordeal. Without representation, many unfair/improper questions may be asked and answered unnecessarily. By answering proper questions about care and treatment, the physician can support the patient while avoiding “standard of care” questions directed at the physician’s care. Staying neutral on such questions require both Plaintiffs and Defendants to retain their own “expert” witnesses to prove or defend those issues.
When required to give a deposition, it’s to everyone’s benefit if the physician is represented by an attorney. Many insurance companies or hospital risk management programs provide deposition representation to assist physicians through this legal process and to help protect and prevent the physician from commenting upon issues outside of his or her treatment. Utilizing these programs can avoid turning that auto or fall-down case into a malpractice case.
EXTRAORDINARY EXPENSES MAY BE RECOVERABLE IN WRONGFUL PREGNANCY CASES
By: Mary M. Cunningham
The Appellate Court has recently expanded the ability to recover extraordinary expenses, or expenses incurred in raising a child afflicted with a genetic illness to the age of majority, in a Wrongful Pregnancy claim. Williams v. Rosner, 2014 ILApp (1st) 12-0378.
Cynthia and Kenneth Williams both carry the sickle cell trait, and have a son who was born with the disease. To avoid further pregnancy and children with sickle cell disease, Cynthia underwent a tubal ligation performed by the Defendant. Unbeknownst to her, the Defendant left one of her fallopian tubes and one of her ovaries intact. She subsequently became pregnant and gave birth to a daughter, Kennadi, who was diagnosed with sickle cell disease. Cynthia and Kenneth, as parents and next friends of Kennadi Williams, filed a Complaint alleging negligence and Wrongful Pregnancy, and sought damages, including extraordinary expenses that they will incur in raising Kennadi Williams to the age of majority. The Defendant filed a Motion to Dismiss arguing that there was no authority in the State of Illinois for the recovery of extraordinary expenses, and that recovery would be precluded because the sickle cell disease was caused by the genetic defect, not the negligence of the physician. The Circuit Court denied the Defendant’s Motion to Dismiss, but subsequently agreed to certify the question as to whether extraordinary expenses are recoverable, indicating that the question involved a question of law as to which there was a substantial ground for a difference of opinion, and that an immediate appeal would materially advance the ultimate termination of the litigation.
The Appellate Court, after significant analysis, agreed with the Circuit Court’s denial of the Defendant’s Motion to Dismiss.
Initially, the Appellate Court analyzed the birth related medical negligence tort claims recognized in Illinois, including Wrongful Birth and Wrongful Pregnancy. It recognized that in successful Wrongful Birth claims, parents are entitled to request recovery of extraordinary damages, including the medical, institutional, and educational expenses that are necessary to properly manage and treat their child’s congenital or genetic disorder; they outlined that Wrongful Birth cases are ones in which parents allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered neonatal or genetic testing and failed to counsel them on the likelihood of giving birth to a physically or mentally impaired child. Wrongful Pregnancy actions are claims brought by parents of the child who is born following a negligently performed sterilization procedure.
The Court then further analyzed Wrongful Pregnancy cases. It acknowledged that historically, plaintiffs in Wrongful Pregnancy claims have been unable to allege extraordinary expenses, but have been limited to general damages which include costs associated with the failed operation, pain and suffering, cost of delivery, lost wages, and loss of consortium. Courts have been reluctant to expand the damages permitted in Wrongful Pregnancy actions to include recovery for the cost of raising a normal and healthy child. However, it acknowledged that there are other cases in which parents have filed claims against a physician who was aware of the potential for a physically or mentally impaired child. Those courts rejected a request for extraordinary damages based on the lack of sufficient pleading of proximate cause; the plaintiffs in those cases acknowledged that they could not contend that the defendants caused the medical or physical condition or could have detected it before birth.
The Williams case found those cases distinguishable. In this case, they found that the key element of proximate cause was foreseeability. Thus in the Williams case, the Defendant could reasonably foresee that another child could be conceived with the sickle cell disease, because he knew that both parents were afflicted with the trait, and he knew that they already had a child with the disease. Thus, the birth of another diseased child would be a foreseeable consequence of a negligently performed sterilization procedure. The Court agreed with this rationale and specifically denied the Defendant’s contention that the Defendant’s knowledge of the fact that the parents already had a child with sickle cell disease does not make it foreseeable that another one will be born with the disease. Rather, the Court found that the Plaintiffs set forth appropriate allegations that, if taken as true, allege a special need to avoid conception because of the known genetic defects, the communication of need to avoid conception and the foreseeability or likelihood of the risk of genetic consequences in another child. Thus, the Court found that because the Plaintiffs alleged that the defendant should have foreseen the birth of another sickle cell diseased child to be a likely consequence of a negligently performed tubal ligation procedure, the Court allowed the Plaintiffs’ case to proceed. Another factor they found compelling was that Plaintiffs allegation that “but for” the negligent conduct of the Defendant, the birth of the genetically diseased child would not have occurred.
Interestingly, the Court rejected the Defendant’s suggestion that allowing recovery for extraordinary expenses in a Wrongful Pregnancy case would open floodgates to litigation in this area. The Court articulated its rationale that careful pleading and continued adherence to traditional proximate cause analysis should preclude claims for extraordinary damages for every unforeseeable or slight genetic abnormality.
Although the Williams case presents a very limited factual situation involving sufficiency of the pleadings and the concept of proximate cause, it invites a request for extraordinary damages in Wrongful Pregnancy cases when a plaintiff can plead specific facts about foreseeability or likelihood of the birth of a genetically diseased child.
Cynthia and Kenneth Williams both carry the sickle cell trait, and have a son who was born with the disease. To avoid further pregnancy and children with sickle cell disease, Cynthia underwent a tubal ligation performed by the Defendant. Unbeknownst to her, the Defendant left one of her fallopian tubes and one of her ovaries intact. She subsequently became pregnant and gave birth to a daughter, Kennadi, who was diagnosed with sickle cell disease. Cynthia and Kenneth, as parents and next friends of Kennadi Williams, filed a Complaint alleging negligence and Wrongful Pregnancy, and sought damages, including extraordinary expenses that they will incur in raising Kennadi Williams to the age of majority. The Defendant filed a Motion to Dismiss arguing that there was no authority in the State of Illinois for the recovery of extraordinary expenses, and that recovery would be precluded because the sickle cell disease was caused by the genetic defect, not the negligence of the physician. The Circuit Court denied the Defendant’s Motion to Dismiss, but subsequently agreed to certify the question as to whether extraordinary expenses are recoverable, indicating that the question involved a question of law as to which there was a substantial ground for a difference of opinion, and that an immediate appeal would materially advance the ultimate termination of the litigation.
The Appellate Court, after significant analysis, agreed with the Circuit Court’s denial of the Defendant’s Motion to Dismiss.
Initially, the Appellate Court analyzed the birth related medical negligence tort claims recognized in Illinois, including Wrongful Birth and Wrongful Pregnancy. It recognized that in successful Wrongful Birth claims, parents are entitled to request recovery of extraordinary damages, including the medical, institutional, and educational expenses that are necessary to properly manage and treat their child’s congenital or genetic disorder; they outlined that Wrongful Birth cases are ones in which parents allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered neonatal or genetic testing and failed to counsel them on the likelihood of giving birth to a physically or mentally impaired child. Wrongful Pregnancy actions are claims brought by parents of the child who is born following a negligently performed sterilization procedure.
The Court then further analyzed Wrongful Pregnancy cases. It acknowledged that historically, plaintiffs in Wrongful Pregnancy claims have been unable to allege extraordinary expenses, but have been limited to general damages which include costs associated with the failed operation, pain and suffering, cost of delivery, lost wages, and loss of consortium. Courts have been reluctant to expand the damages permitted in Wrongful Pregnancy actions to include recovery for the cost of raising a normal and healthy child. However, it acknowledged that there are other cases in which parents have filed claims against a physician who was aware of the potential for a physically or mentally impaired child. Those courts rejected a request for extraordinary damages based on the lack of sufficient pleading of proximate cause; the plaintiffs in those cases acknowledged that they could not contend that the defendants caused the medical or physical condition or could have detected it before birth.
The Williams case found those cases distinguishable. In this case, they found that the key element of proximate cause was foreseeability. Thus in the Williams case, the Defendant could reasonably foresee that another child could be conceived with the sickle cell disease, because he knew that both parents were afflicted with the trait, and he knew that they already had a child with the disease. Thus, the birth of another diseased child would be a foreseeable consequence of a negligently performed sterilization procedure. The Court agreed with this rationale and specifically denied the Defendant’s contention that the Defendant’s knowledge of the fact that the parents already had a child with sickle cell disease does not make it foreseeable that another one will be born with the disease. Rather, the Court found that the Plaintiffs set forth appropriate allegations that, if taken as true, allege a special need to avoid conception because of the known genetic defects, the communication of need to avoid conception and the foreseeability or likelihood of the risk of genetic consequences in another child. Thus, the Court found that because the Plaintiffs alleged that the defendant should have foreseen the birth of another sickle cell diseased child to be a likely consequence of a negligently performed tubal ligation procedure, the Court allowed the Plaintiffs’ case to proceed. Another factor they found compelling was that Plaintiffs allegation that “but for” the negligent conduct of the Defendant, the birth of the genetically diseased child would not have occurred.
Interestingly, the Court rejected the Defendant’s suggestion that allowing recovery for extraordinary expenses in a Wrongful Pregnancy case would open floodgates to litigation in this area. The Court articulated its rationale that careful pleading and continued adherence to traditional proximate cause analysis should preclude claims for extraordinary damages for every unforeseeable or slight genetic abnormality.
Although the Williams case presents a very limited factual situation involving sufficiency of the pleadings and the concept of proximate cause, it invites a request for extraordinary damages in Wrongful Pregnancy cases when a plaintiff can plead specific facts about foreseeability or likelihood of the birth of a genetically diseased child.
ILLINOIS SUPREME COURT LIMITS IMMUNITY DEFENSE AVAILABLE UNDER GOOD SAMARITAN ACT
By: C. Thomas Hendrix
In a recent opinion, the Illinois Supreme Court ruled that the decision whether a physician is entitled to immunity from liability for emergency care under the Good Samaritan Act (“Act”) turns not on whether the patient was billed for the physician’s care, but rather whether the physician received compensation for his/her medical services. The Court, in a unanimous opinion, found the Act does not provide immunity to an on-duty emergency room physician sued for negligence who did not bill the patient for his services, because the physician received compensation for his medical services at the hospital that day and was not a volunteer. Home Star Bank and Financial Services v. Emergency Care and Health Organization, Ltd., 2014 IL 115526 (opinion filed March 20, 2014).
The issue: Physician’s receipt of compensation for medical services, not billing a patient for care.
In Home Star Bank and Financial Services, the plaintiff/patient was admitted to Provena St. Mary’s Hospital through the emergency room and was later transferred to the intensive care unit. The patient began having labored breathing and a Code Blue was called. Dr. Murphy, who was the only physician in the emergency room, responded to the Code Blue outside of the emergency room and attempted to intubate the patient. The patient suffered a brain injury. Plaintiffs filed a negligence action against Dr. Murphy and his medical group, ECHO, alleging Dr. Murphy’s care was the cause of the patient’s injuries.
Dr. Murphy moved for summary judgment asserting he was immune from liability for negligence under Section 25 of the Good Samaritan Act. Dr. Murphy contended that the Act applied because the patient was in the care of another physician who was not at the hospital, and because he provided emergency care to the patient, and the patient was not billed for that care.
The Good Samaritan Act provides in pertinent part that “[A]ny person licensed under the Medical Practice Act of 1987 or any person licensed to practice the treatment of human ailments in any other state or territory of the United States who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages.” 745 ILCS 49/25 (2010).
The Circuit Court of Cook County concluded that Dr. Murphy was immune from liability pursuant to the Act and granted summary judgment. On appeal, the Appellate Court, First District, reversed, holding that the purpose of the Act was to promote volunteerism, and the Act was not meant to apply to physicians who respond to an emergency within the scope of their employment and are compensated for doing so.
On petition for leave to appeal, the Illinois Supreme Court in Home Star Bank and Financial Services acknowledged there was a division in the case law over the interpretation of Section 25 of the Act and what was meant by the words “without fee” in the statute. The two different interpretations of the Act were: 1) The correct interpretation of the Act is found in the case of Heanue v. Edgcomb, 355 Ill.App.3d 645 (2005) where the court held that application of the Act turned on whether or not the physician had billed for the emergency services. Under this interpretation, the word “fee” in the statute is unambiguous, and a physician is entitled to immunity for negligent emergency care so long as he or she did not bill the patient. 2) In contrast, plaintiffs contend the correct interpretation of the Act was set forth by the federal district court in Henslee v. Provena Hospitals, 373 F. Supp. 802 (N.D. Ill.2005). Under this view, “fee” is ambiguous, and can refer either to the patient being billed or a physician being paid for his services, and the legislative intent was the Act was only meant to apply to those who volunteer their services.
Having considered the case authority and the legislative history, the Illinois Supreme Court stated that the issue is therefore one of statutory construction, to ascertain and give effect to the intention of the legislature. The Supreme Court agreed with the Appellate Court below and with the Henslee decision that the term “fee” is ambiguous, and must be given a broader definition to include both a patient being billed or a doctor being paid. The Court concluded: “[The doctor] was fully compensated for his time that day, and it is clear that he responded to the emergency not because he was volunteering to help but because it was his job to do so… Moreover, it is clear from both the agreement that ECHO (emergency physician group) had with the hospital and the agreement that ECHO had with [the doctor] that ECHO physicians were required to comply with hospital policies, and the hospital’s written policy made clear that emergency room physicians were to respond to Code Blues.” The Supreme Court held that Dr. Murphy did not provide his services “without fee,” and he may not claim immunity under the Good Samaritan Act. The Court therefore affirmed the decision of the Appellate Court, reversing summary judgment in favor of Dr. Murphy.
Conclusion:
The Good Samaritan Act does not shield on-duty emergency room physicians who do not bill a particular patient; but the decision by the Illinois Supreme Court in Home Star Bank should not prevent raising the defense of immunity under the Act on behalf of other physicians in the hospital setting responding to an emergency where it is not the physician’s job to respond to emergencies and hospital policies do not require the physician to respond. A valid Good Samaritan defense in a hospital would be a physician who responds to a patient in an emergency, and goes to assist the patient, and the physician was not being paid and had no obligation to respond.
The issue: Physician’s receipt of compensation for medical services, not billing a patient for care.
In Home Star Bank and Financial Services, the plaintiff/patient was admitted to Provena St. Mary’s Hospital through the emergency room and was later transferred to the intensive care unit. The patient began having labored breathing and a Code Blue was called. Dr. Murphy, who was the only physician in the emergency room, responded to the Code Blue outside of the emergency room and attempted to intubate the patient. The patient suffered a brain injury. Plaintiffs filed a negligence action against Dr. Murphy and his medical group, ECHO, alleging Dr. Murphy’s care was the cause of the patient’s injuries.
Dr. Murphy moved for summary judgment asserting he was immune from liability for negligence under Section 25 of the Good Samaritan Act. Dr. Murphy contended that the Act applied because the patient was in the care of another physician who was not at the hospital, and because he provided emergency care to the patient, and the patient was not billed for that care.
The Good Samaritan Act provides in pertinent part that “[A]ny person licensed under the Medical Practice Act of 1987 or any person licensed to practice the treatment of human ailments in any other state or territory of the United States who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages.” 745 ILCS 49/25 (2010).
The Circuit Court of Cook County concluded that Dr. Murphy was immune from liability pursuant to the Act and granted summary judgment. On appeal, the Appellate Court, First District, reversed, holding that the purpose of the Act was to promote volunteerism, and the Act was not meant to apply to physicians who respond to an emergency within the scope of their employment and are compensated for doing so.
On petition for leave to appeal, the Illinois Supreme Court in Home Star Bank and Financial Services acknowledged there was a division in the case law over the interpretation of Section 25 of the Act and what was meant by the words “without fee” in the statute. The two different interpretations of the Act were: 1) The correct interpretation of the Act is found in the case of Heanue v. Edgcomb, 355 Ill.App.3d 645 (2005) where the court held that application of the Act turned on whether or not the physician had billed for the emergency services. Under this interpretation, the word “fee” in the statute is unambiguous, and a physician is entitled to immunity for negligent emergency care so long as he or she did not bill the patient. 2) In contrast, plaintiffs contend the correct interpretation of the Act was set forth by the federal district court in Henslee v. Provena Hospitals, 373 F. Supp. 802 (N.D. Ill.2005). Under this view, “fee” is ambiguous, and can refer either to the patient being billed or a physician being paid for his services, and the legislative intent was the Act was only meant to apply to those who volunteer their services.
Having considered the case authority and the legislative history, the Illinois Supreme Court stated that the issue is therefore one of statutory construction, to ascertain and give effect to the intention of the legislature. The Supreme Court agreed with the Appellate Court below and with the Henslee decision that the term “fee” is ambiguous, and must be given a broader definition to include both a patient being billed or a doctor being paid. The Court concluded: “[The doctor] was fully compensated for his time that day, and it is clear that he responded to the emergency not because he was volunteering to help but because it was his job to do so… Moreover, it is clear from both the agreement that ECHO (emergency physician group) had with the hospital and the agreement that ECHO had with [the doctor] that ECHO physicians were required to comply with hospital policies, and the hospital’s written policy made clear that emergency room physicians were to respond to Code Blues.” The Supreme Court held that Dr. Murphy did not provide his services “without fee,” and he may not claim immunity under the Good Samaritan Act. The Court therefore affirmed the decision of the Appellate Court, reversing summary judgment in favor of Dr. Murphy.
Conclusion:
The Good Samaritan Act does not shield on-duty emergency room physicians who do not bill a particular patient; but the decision by the Illinois Supreme Court in Home Star Bank should not prevent raising the defense of immunity under the Act on behalf of other physicians in the hospital setting responding to an emergency where it is not the physician’s job to respond to emergencies and hospital policies do not require the physician to respond. A valid Good Samaritan defense in a hospital would be a physician who responds to a patient in an emergency, and goes to assist the patient, and the physician was not being paid and had no obligation to respond.
IN RESPONSE TO PRO SE
By: Laura J. Young
Imagine …
You receive a handwritten Complaint. You know it is a Complaint since it includes a case number and the semblance of a caption. However, the remainder of the document rapidly devolves into a series of rambling facts that have no relevance to any recognizable cause of action or even to each other. Incorporated within the body may be references to inapplicable constitutional provisions; well-publicized Acts of Congress; allegations of numerous and wide-spread conspiracies; and a prayer of relief for an extravagant and inexplicable sum of money. Or an apology. Or a trip to Hawaii.
Sound familiar?
Your next move is tricky. You have a client on behalf of whom you must zealously advocate. You also have a client who, understandably, does not want to sink tens of thousands of dollars in legal bills into a cause of action that makes no sense and has no merit. You are before a judge that you do not want to annoy. Finally, you are professionally adverse to a human being. Regardless of the evidence, this individual truly believes that he or she has been seriously wronged and deserves retribution.
Defending a complex civil case against a pro se plaintiff can feel like playing chess against a person who has never been told how the pieces are allowed to move. The lawyerless litigant may know their desired resolution to their grievances, but in trying to capture the opposing king, every move results in frustration, opposition, and another opportunity to move their piece in what must feel like ill-defined and whimsical rules announced by a capricious arbiter. I can empathize: It’s the way I feel trying to watch a football game.
This discrepancy in the playing field has not gone unnoticed by the Court: “An underlying assumption of the adversarial system is that both parties will have roughly equal resources. This assumption is destroyed when only one side is represented.” Merritt v. Faulkner, 697 F.2d 761,764 (footnote 3) (7th Circuit, 1983).
The truth is that, regardless of the differences in training, talent, and formal education, when an individual elects to proceed in complex litigation with no counsel, the pro se party is held to the same standard as members of the bar. In making this argument, the following citations may be useful to incorporate into your legal argument:
“Pro se litigants are presumed to have full knowledge of applicable court rules and procedures, including, procedural deadlines with respect to filing motions.” Steinbrecher v. Steinbrecher, 197 Ill.2d 514; 759 N.E.2d 509 (2001)(Court fails to excuse a pro se litigant’s procedural failure to renew a motion to stay in a property partition suit between siblings); Fiallo v. Lee, 356 Ill.App.3d 649,657; 826 N.E.2d 936, 942 (1st Dist. 2005)(Statement made by court in response to a petitioner-parent’s attempt to modify a child support order when the petition was filed one year too late and she failed to provide evidence of due diligence.)
In response to complaints of defendants in a case involving trade secrets and deceptive acts that his pro se status, depleted financial status, and unfamiliarity with the legal process have put him at a disadvantage, the First District specifically found: “Although [Defendants] have the right to appear as pro se appellants, they are held to the same rules as any other litigant represented by counsel . . . and despite their recurrent pleas, their pro se standing does not compel this court to apply a more lenient standard.” Multiut Corp. v. Draiman, 359 Ill.App.3d 527, 534; 834 N.E.2d 43, 48 (1st Dist. 2005)(internal citations omitted).
Finally, in a recently decided medical malpractice case in which the plaintiff represented himself and wanted to act as his own retained consultant to opine on the performance of foot surgery by a podiatrist (the plaintiff had no medical training), the court found: “A pro se litigant such as plaintiff here is not entitled to more lenient treatment than attorneys. In Illinois, parties choosing to represent themselves without a lawyer must comply with the same rules and are held to the same standards as licensed attorneys.” Holzrichter v. Yorath, 2013 IL App (1st) 110287, P78; 987 N.E.2d 1, 16 (1st Dist. 2013). “Illinois courts have strictly adhered to this principle, noting a ‘pro se’ litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants.'” Id.
While you want to be professional, courteous, and kind, this case law makes it possible to support your argument (and instinct) with relevant authority: Pro Se litigants are not entitled to preference to compensate for their lack of formal, legal education.
You receive a handwritten Complaint. You know it is a Complaint since it includes a case number and the semblance of a caption. However, the remainder of the document rapidly devolves into a series of rambling facts that have no relevance to any recognizable cause of action or even to each other. Incorporated within the body may be references to inapplicable constitutional provisions; well-publicized Acts of Congress; allegations of numerous and wide-spread conspiracies; and a prayer of relief for an extravagant and inexplicable sum of money. Or an apology. Or a trip to Hawaii.
Sound familiar?
Your next move is tricky. You have a client on behalf of whom you must zealously advocate. You also have a client who, understandably, does not want to sink tens of thousands of dollars in legal bills into a cause of action that makes no sense and has no merit. You are before a judge that you do not want to annoy. Finally, you are professionally adverse to a human being. Regardless of the evidence, this individual truly believes that he or she has been seriously wronged and deserves retribution.
Defending a complex civil case against a pro se plaintiff can feel like playing chess against a person who has never been told how the pieces are allowed to move. The lawyerless litigant may know their desired resolution to their grievances, but in trying to capture the opposing king, every move results in frustration, opposition, and another opportunity to move their piece in what must feel like ill-defined and whimsical rules announced by a capricious arbiter. I can empathize: It’s the way I feel trying to watch a football game.
This discrepancy in the playing field has not gone unnoticed by the Court: “An underlying assumption of the adversarial system is that both parties will have roughly equal resources. This assumption is destroyed when only one side is represented.” Merritt v. Faulkner, 697 F.2d 761,764 (footnote 3) (7th Circuit, 1983).
The truth is that, regardless of the differences in training, talent, and formal education, when an individual elects to proceed in complex litigation with no counsel, the pro se party is held to the same standard as members of the bar. In making this argument, the following citations may be useful to incorporate into your legal argument:
“Pro se litigants are presumed to have full knowledge of applicable court rules and procedures, including, procedural deadlines with respect to filing motions.” Steinbrecher v. Steinbrecher, 197 Ill.2d 514; 759 N.E.2d 509 (2001)(Court fails to excuse a pro se litigant’s procedural failure to renew a motion to stay in a property partition suit between siblings); Fiallo v. Lee, 356 Ill.App.3d 649,657; 826 N.E.2d 936, 942 (1st Dist. 2005)(Statement made by court in response to a petitioner-parent’s attempt to modify a child support order when the petition was filed one year too late and she failed to provide evidence of due diligence.)
In response to complaints of defendants in a case involving trade secrets and deceptive acts that his pro se status, depleted financial status, and unfamiliarity with the legal process have put him at a disadvantage, the First District specifically found: “Although [Defendants] have the right to appear as pro se appellants, they are held to the same rules as any other litigant represented by counsel . . . and despite their recurrent pleas, their pro se standing does not compel this court to apply a more lenient standard.” Multiut Corp. v. Draiman, 359 Ill.App.3d 527, 534; 834 N.E.2d 43, 48 (1st Dist. 2005)(internal citations omitted).
Finally, in a recently decided medical malpractice case in which the plaintiff represented himself and wanted to act as his own retained consultant to opine on the performance of foot surgery by a podiatrist (the plaintiff had no medical training), the court found: “A pro se litigant such as plaintiff here is not entitled to more lenient treatment than attorneys. In Illinois, parties choosing to represent themselves without a lawyer must comply with the same rules and are held to the same standards as licensed attorneys.” Holzrichter v. Yorath, 2013 IL App (1st) 110287, P78; 987 N.E.2d 1, 16 (1st Dist. 2013). “Illinois courts have strictly adhered to this principle, noting a ‘pro se’ litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants.'” Id.
While you want to be professional, courteous, and kind, this case law makes it possible to support your argument (and instinct) with relevant authority: Pro Se litigants are not entitled to preference to compensate for their lack of formal, legal education.
ARBITRATION IN THE LONG TERM CARE SETTING: CARTER VS. SSC ODIN OPERATING CO. (CARTER II)
By: C. Thomas Hendrix
In Fosler v. Midwest Care Center II, Inc., 398 Ill.App.3d 563 (2d Dist. 2009) (modified upon denial of rehearing, March 1, 2010), the Appellate Court considered the question whether a binding arbitration agreement between a resident and her nursing home contained in a nursing home admission contract is invalidated by provisions in the Illinois Nursing Home Care Act (NHCA) guaranteeing a right to a jury trial. The NHCA states that a party to a claim brought under the Act “shall be entitled to a trial by jury and any waiver of the right to a trial by jury, whether oral or in writing, prior to the commencement of an action, shall be null and void, and without legal force or effect.” 210 ILCS 45/3-607 (2010). The decision in Fosler is important because the court held for the first time that the NHCA did not invalidate arbitration agreements between a resident and a nursing home, and the Federal Arbitration Act (FAA) preempted the anti-waiver provisions of the NHCA.
The Fosler court determined that a conflict existed between the FAA and the NHCA, because the FAA permits and favors arbitration agreements while the NHCA invalidates them as a matter of public policy. When such a conflict exists, the Supremacy Clause of the United States Constitution and the doctrine of federal preemption provide that the state law shall be preempted by the federal legislation. Fosler, 398 Ill.App.3d at 567-568, citing, Southland Corp. v. Keating, 465 U.S.1, 10-11, 104 S. Ct. 852, 858 (1984). Moreover, the FAA preempts any state based statutory, regulatory, or decisional law which places any greater hurdle to the enforcement of contracts for arbitration than for contracts generally.
The United States Supreme Court, however, has stated there are two limitations to the enforceability of arbitration provisions governed by the Federal Arbitration Act: “they must be part of a contract ‘evidencing a transaction involving commerce’ and such clauses may be revoked upon ‘grounds as exist at law or in equity for the revocation of any contract.'” Southland, 465 U.S. at 10-11. Consequently, arguments concerning the capacity to sue, authority, unconscionability, mutuality of consideration, and unavailability of the arbitration forum are still available to defeat the enforcement of arbitration agreements under the FAA “savings” clause. Even though the FAA preempts state laws which invalidate arbitration agreements generally, state law based contractual defenses not solely aimed at invalidating arbitration agreements remain available, and a plaintiff thereby can avoid arbitration.
Before the decision in the Fosler case was issued, the Fifth District Appellate Court in Carter v. SSC Odin Operating Co., LLC, 381 Ill.App.3d 717 (2008) held that the FAA did not preempt the NHCA, and found that the provisions in the NHCA guaranteeing the right to a jury trial were sufficient to invalidate arbitration agreements despite the potential conflict between preemption under the FAA and the Nursing Home Care Act. The Fosler court considered the decision in Carter but refused to follow it declaring that Carter incorrectly interpreted the Supreme Court cases discussing the preemption issue. Fosler, 398 Ill.App.3d 571.[1]
CARTER I:
The nursing home defendant in Carter I successfully petitioned the Illinois Supreme Court for review of the Appellate Court decision citing a conflict between the appellate courts in Carter and Fosler. In Carter I, the Illinois Supreme Court issued a written opinion agreeing with the Fosler analysis. See, Carter v. SSC Odin Operating Co., LLC, 237 Ill.2d 30, (2010). The Supreme Court undertook an analysis of the anti-waiver provisions/public policy set forth in the Nursing Home Care Act and of the purpose and history of the Federal Arbitration Act including the federal policy set forth in several United States Supreme Court decisions that the enforcement of private arbitration agreements places the FAA in conflict with state laws requiring litigants to be provided a right to a jury trial in certain types of actions. The Supreme Court reversed the Appellate Court in Carter holding that the anti-waiver provisions of the NHCA were the functional equivalent of anti-arbitration legislation, which is preempted by the FAA and Supreme Court precedent. Carter, 237 Ill.2d at 38-49. The Supreme Court also concluded that the anti-waiver provisions of the NHCA were not “grounds which exist at law or in equity for the revocation of any contract,” and amounted to a law disfavoring arbitration which the FAA specifically prohibits and preempts. However, in Carter I, the Supreme Court did not address the general contract defenses raised against the arbitration agreement, and instead remanded the case to the Appellate Court for consideration of the remaining issues.
CARTER II:
In Carter v. SSC Odin Operating Co., LLC (Carter II), 2012 IL 113204 (2012), the Illinois Supreme Court addressed those remaining issues. On remand in Carter I, the Fifth District Appellate Court again affirmed the trial court’s refusal to compel arbitration. The Appellate Court looked to general contract defenses applicable to all contracts and held that the nursing home’s promise to arbitrate was illusory, and therefore, the arbitration agreement was unenforceable for lack of mutuality of obligation. The Appellate Court also held that even if the arbitration agreement was enforceable, plaintiff could not be compelled to arbitrate the wrongful death claim because plaintiff did not sign the arbitration agreement in her individual capacity but signed the agreement only as the decedent’s (resident’s) legal representative.
In Carter II, the Supreme Court stated that the FAA was enacted “to reverse the longstanding judicial hostility to arbitration agreements” and “to place arbitration agreements upon the same footing as other contracts.” The Court reaffirmed that under the FAA savings clause, an arbitration agreement may be invalidated by a state law contract defense of general applicability, such as fraud, duress, or unconscionability, without contravening the FAA, but an arbitration agreement may not be invalidated by a state law applicable only to arbitration agreements. The Court then reversed the Appellate Court’s decision that the state law contract defense of mutuality of obligation invalidated the arbitration agreement. The Court held that principles of contract law do not require an equivalent exchange of obligation or equivalence in the values exchanged by each of the contracting parties. Therefore, the Court held that the nursing home’s (Odin’s) promise was not illusory because it promised to pay the arbitration fees and to pay limited attorney’s fees of the resident. The Court concluded that the plaintiff’s promise to arbitrate, even if not met with a reciprocal promise to arbitrate by defendant, was nonetheless supported by consideration, and therefore, the arbitration agreement was enforceable and the state law contract defense of lack of mutuality of obligation was not available under the facts of the case.
In light of the Supreme Court’s holding the arbitration agreement was enforceable as to the Survival Act claims for negligence and statutory violations pursuant to the Nursing Home Care Act, the court addressed the question whether the plaintiff was required to arbitrate the wrongful death claim. Although the Supreme Court held Carter could be compelled to arbitrate the survival action, she could not be compelled to arbitrate her wrongful death action because she did not sign the arbitration agreement. The Court explained that plaintiff (Carter) had signed the arbitration agreement as the resident’s legal representative, and not in her individual capacity or on her own behalf as a potential wrongful death plaintiff. The Supreme Court held that plaintiff, as a non-party to the arbitration agreement, could not be compelled to arbitrate the wrongful death claim. The court found that the allegation of violation of the Nursing Home Care Act under the Survival Act is a claim that accrued to the decedent prior to her death and was brought for the benefit of the decedent’s estate, and therefore, plaintiff was bound to arbitrate that claim. For purposes of the wrongful death action, however, the court found that plaintiff was not acting in the decedent’s stead, and the wrongful death action did not accrue until death and was not brought for the benefit of the decedent’s estate, but for the next of kin who were the true parties in interest. Plaintiff, as the decedent’s personal representative in the wrongful death action, was merely a nominal party, effectively filing suit as a statutory trustee on behalf of the next of kin. The Supreme Court held that because plaintiff was not prosecuting the wrongful death claim on behalf of the decedent, plaintiff was not bound by the decedent’s agreement to arbitrate for purposes of the wrongful death cause of action.
Conclusion:
These decisions by the Illinois Appellate Court and by the Illinois Supreme Court are important decisions regarding the applicability and validity of binding arbitration agreements in nursing home cases. While Carter I focused on the public policy argument and held that the anti-waiver provisions in the Nursing Home Care Act were preempted by the FAA and unenforceable because they disfavored arbitration which is prohibited by the FAA, Carter II focused on principles of general contract law like consideration, mutuality of obligation, capacity, and authority. Therefore, if long term care providers carefully draft their arbitration agreements, this should limit the amount of discretion the courts have to refuse to enforce arbitration provisions. A long term care provider interested in enforcing its arbitration agreements should ensure the agreement is based on a valid enforceable contract. Removing unconscionable provisions such as onerous cost sharing provisions, or provisions limiting discovery or caps on damages or prohibitions on punitive damages will limit the court’s discretion to invalidate the arbitration agreement as a whole.
__________________________________
[1] Kominiarek Bresler Harvick & Gudmundson, LLC represented the nursing home defendant
in the trial court and for the appeal in Fosler v. Midwest Care Center II, creating
new case law in Illinois that binding arbitration clauses in nursing home admission
contracts are enforceable. (C. Thomas Hendrix and Michael R. Webber)
The Fosler court determined that a conflict existed between the FAA and the NHCA, because the FAA permits and favors arbitration agreements while the NHCA invalidates them as a matter of public policy. When such a conflict exists, the Supremacy Clause of the United States Constitution and the doctrine of federal preemption provide that the state law shall be preempted by the federal legislation. Fosler, 398 Ill.App.3d at 567-568, citing, Southland Corp. v. Keating, 465 U.S.1, 10-11, 104 S. Ct. 852, 858 (1984). Moreover, the FAA preempts any state based statutory, regulatory, or decisional law which places any greater hurdle to the enforcement of contracts for arbitration than for contracts generally.
The United States Supreme Court, however, has stated there are two limitations to the enforceability of arbitration provisions governed by the Federal Arbitration Act: “they must be part of a contract ‘evidencing a transaction involving commerce’ and such clauses may be revoked upon ‘grounds as exist at law or in equity for the revocation of any contract.'” Southland, 465 U.S. at 10-11. Consequently, arguments concerning the capacity to sue, authority, unconscionability, mutuality of consideration, and unavailability of the arbitration forum are still available to defeat the enforcement of arbitration agreements under the FAA “savings” clause. Even though the FAA preempts state laws which invalidate arbitration agreements generally, state law based contractual defenses not solely aimed at invalidating arbitration agreements remain available, and a plaintiff thereby can avoid arbitration.
Before the decision in the Fosler case was issued, the Fifth District Appellate Court in Carter v. SSC Odin Operating Co., LLC, 381 Ill.App.3d 717 (2008) held that the FAA did not preempt the NHCA, and found that the provisions in the NHCA guaranteeing the right to a jury trial were sufficient to invalidate arbitration agreements despite the potential conflict between preemption under the FAA and the Nursing Home Care Act. The Fosler court considered the decision in Carter but refused to follow it declaring that Carter incorrectly interpreted the Supreme Court cases discussing the preemption issue. Fosler, 398 Ill.App.3d 571.[1]
CARTER I:
The nursing home defendant in Carter I successfully petitioned the Illinois Supreme Court for review of the Appellate Court decision citing a conflict between the appellate courts in Carter and Fosler. In Carter I, the Illinois Supreme Court issued a written opinion agreeing with the Fosler analysis. See, Carter v. SSC Odin Operating Co., LLC, 237 Ill.2d 30, (2010). The Supreme Court undertook an analysis of the anti-waiver provisions/public policy set forth in the Nursing Home Care Act and of the purpose and history of the Federal Arbitration Act including the federal policy set forth in several United States Supreme Court decisions that the enforcement of private arbitration agreements places the FAA in conflict with state laws requiring litigants to be provided a right to a jury trial in certain types of actions. The Supreme Court reversed the Appellate Court in Carter holding that the anti-waiver provisions of the NHCA were the functional equivalent of anti-arbitration legislation, which is preempted by the FAA and Supreme Court precedent. Carter, 237 Ill.2d at 38-49. The Supreme Court also concluded that the anti-waiver provisions of the NHCA were not “grounds which exist at law or in equity for the revocation of any contract,” and amounted to a law disfavoring arbitration which the FAA specifically prohibits and preempts. However, in Carter I, the Supreme Court did not address the general contract defenses raised against the arbitration agreement, and instead remanded the case to the Appellate Court for consideration of the remaining issues.
CARTER II:
In Carter v. SSC Odin Operating Co., LLC (Carter II), 2012 IL 113204 (2012), the Illinois Supreme Court addressed those remaining issues. On remand in Carter I, the Fifth District Appellate Court again affirmed the trial court’s refusal to compel arbitration. The Appellate Court looked to general contract defenses applicable to all contracts and held that the nursing home’s promise to arbitrate was illusory, and therefore, the arbitration agreement was unenforceable for lack of mutuality of obligation. The Appellate Court also held that even if the arbitration agreement was enforceable, plaintiff could not be compelled to arbitrate the wrongful death claim because plaintiff did not sign the arbitration agreement in her individual capacity but signed the agreement only as the decedent’s (resident’s) legal representative.
In Carter II, the Supreme Court stated that the FAA was enacted “to reverse the longstanding judicial hostility to arbitration agreements” and “to place arbitration agreements upon the same footing as other contracts.” The Court reaffirmed that under the FAA savings clause, an arbitration agreement may be invalidated by a state law contract defense of general applicability, such as fraud, duress, or unconscionability, without contravening the FAA, but an arbitration agreement may not be invalidated by a state law applicable only to arbitration agreements. The Court then reversed the Appellate Court’s decision that the state law contract defense of mutuality of obligation invalidated the arbitration agreement. The Court held that principles of contract law do not require an equivalent exchange of obligation or equivalence in the values exchanged by each of the contracting parties. Therefore, the Court held that the nursing home’s (Odin’s) promise was not illusory because it promised to pay the arbitration fees and to pay limited attorney’s fees of the resident. The Court concluded that the plaintiff’s promise to arbitrate, even if not met with a reciprocal promise to arbitrate by defendant, was nonetheless supported by consideration, and therefore, the arbitration agreement was enforceable and the state law contract defense of lack of mutuality of obligation was not available under the facts of the case.
In light of the Supreme Court’s holding the arbitration agreement was enforceable as to the Survival Act claims for negligence and statutory violations pursuant to the Nursing Home Care Act, the court addressed the question whether the plaintiff was required to arbitrate the wrongful death claim. Although the Supreme Court held Carter could be compelled to arbitrate the survival action, she could not be compelled to arbitrate her wrongful death action because she did not sign the arbitration agreement. The Court explained that plaintiff (Carter) had signed the arbitration agreement as the resident’s legal representative, and not in her individual capacity or on her own behalf as a potential wrongful death plaintiff. The Supreme Court held that plaintiff, as a non-party to the arbitration agreement, could not be compelled to arbitrate the wrongful death claim. The court found that the allegation of violation of the Nursing Home Care Act under the Survival Act is a claim that accrued to the decedent prior to her death and was brought for the benefit of the decedent’s estate, and therefore, plaintiff was bound to arbitrate that claim. For purposes of the wrongful death action, however, the court found that plaintiff was not acting in the decedent’s stead, and the wrongful death action did not accrue until death and was not brought for the benefit of the decedent’s estate, but for the next of kin who were the true parties in interest. Plaintiff, as the decedent’s personal representative in the wrongful death action, was merely a nominal party, effectively filing suit as a statutory trustee on behalf of the next of kin. The Supreme Court held that because plaintiff was not prosecuting the wrongful death claim on behalf of the decedent, plaintiff was not bound by the decedent’s agreement to arbitrate for purposes of the wrongful death cause of action.
Conclusion:
These decisions by the Illinois Appellate Court and by the Illinois Supreme Court are important decisions regarding the applicability and validity of binding arbitration agreements in nursing home cases. While Carter I focused on the public policy argument and held that the anti-waiver provisions in the Nursing Home Care Act were preempted by the FAA and unenforceable because they disfavored arbitration which is prohibited by the FAA, Carter II focused on principles of general contract law like consideration, mutuality of obligation, capacity, and authority. Therefore, if long term care providers carefully draft their arbitration agreements, this should limit the amount of discretion the courts have to refuse to enforce arbitration provisions. A long term care provider interested in enforcing its arbitration agreements should ensure the agreement is based on a valid enforceable contract. Removing unconscionable provisions such as onerous cost sharing provisions, or provisions limiting discovery or caps on damages or prohibitions on punitive damages will limit the court’s discretion to invalidate the arbitration agreement as a whole.
__________________________________
[1] Kominiarek Bresler Harvick & Gudmundson, LLC represented the nursing home defendant
in the trial court and for the appeal in Fosler v. Midwest Care Center II, creating
new case law in Illinois that binding arbitration clauses in nursing home admission
contracts are enforceable. (C. Thomas Hendrix and Michael R. Webber)
COURT STRICTLY CONSTRUES MEDICAL STUDIES ACT IN MEMO WRITTEN TO SURGERY CENTER BOARD
By: Mary M. Cunningham
In a recent DuPage County case (Kopolovich v. Shah, 2012 ILL App (2d) 110383), an anesthesiologist wrote a memorandum to several board members of a day surgery center stating that a surgery in which he participated differed from what was consented to by the patient and what was listed on the OR schedule. He alleged that the surgeon was “deceptive” and “unethical” in performing a full abdominoplasty (“tummy tuck”) instead of a hernia repair, excision and revision to correct an abdominal wall deformity. An investigation ensued and was not resolved. The surgeon sued the anesthesiologist and surgery center for Defamation and False Light Invasion of Privacy. The anesthesiologist/defendant argued that the Medical Studies Act applied to the memorandum because he circulated it to the board only and because it dealt with matters of Quality Control.
Traditionally the Medical Studies Act has been relied upon by hospitals to protect Peer Review documents from disclosure. The purpose of the Act is not to shield hospitals from liability, but to insure that physicians will engage in effective examination of their peers in order to advance quality of healthcare. Illinois courts have consistently held that a Peer Review Committee document is privileged only if it is “initiated, created, prepared or generated by” a Peer Review Committee. Thus, a document generated before the Committee is engaged in reviewing an incident will not be deemed privileged.
The court rejected the anesthesiologist’s argument that the memo was protected. It found that as there was no Peer Review or Quality Control Committee investigating the incident before the memo was written, it did not qualify as privileged under the Act. Also, the anesthesiologist was not a member of any Peer Review or Quality Control Committee and, therefore, the memo could not have been “initiated, created prepared or generated by” a Peer Review or Quality Control Committee. In its very strict interpretation of the statute, the Court found that “even when the content of the communication is in harmony with the promotion of internal quality control and improving patient care, the communication is not privileged under the Act when it is not generated by a Committee of the type described by the Statute.” The memo was not considered privileged and the plaintiff surgeon was able to proceed with his case for Defamation and False Light Invasion of Privacy.
Traditionally the Medical Studies Act has been relied upon by hospitals to protect Peer Review documents from disclosure. The purpose of the Act is not to shield hospitals from liability, but to insure that physicians will engage in effective examination of their peers in order to advance quality of healthcare. Illinois courts have consistently held that a Peer Review Committee document is privileged only if it is “initiated, created, prepared or generated by” a Peer Review Committee. Thus, a document generated before the Committee is engaged in reviewing an incident will not be deemed privileged.
The court rejected the anesthesiologist’s argument that the memo was protected. It found that as there was no Peer Review or Quality Control Committee investigating the incident before the memo was written, it did not qualify as privileged under the Act. Also, the anesthesiologist was not a member of any Peer Review or Quality Control Committee and, therefore, the memo could not have been “initiated, created prepared or generated by” a Peer Review or Quality Control Committee. In its very strict interpretation of the statute, the Court found that “even when the content of the communication is in harmony with the promotion of internal quality control and improving patient care, the communication is not privileged under the Act when it is not generated by a Committee of the type described by the Statute.” The memo was not considered privileged and the plaintiff surgeon was able to proceed with his case for Defamation and False Light Invasion of Privacy.
REPORTING REQUIREMENTS: THE NATIONAL PRACTITIONER DATA BANK
By: Amy L. Garland
The National Practitioner Data Bank is an electronic repository of all payments made on behalf of physicians in connection with medical liability settlements or judgments, as well as adverse peer review actions against licenses, clinical privileges, and professional society memberships of physicians and other health care practitioners. The NPDB was established by Congress as part of The Healthcare Quality Improvement Act of 1986. By federal law, information on all medical liability payments and on certain adverse actions must be reported to the NPDB. In turn, the NPDB is required to make this information available to hospitals, state licensure boards, some professional societies and other health care entities under certain circumstances. It is primarily an alert or flagging system which is intended to put parties on notice that the physician may have competence or professional misconduct problems. The information is considered confidential and is released only to the eligible entities or to physicians and other health care practitioners who wish to conduct a self-query.
The NPDB collects and disseminates information, such as professional liability payments made on behalf of a physician or other health care practitioners. Adverse action reports are based on professional conduct that adversely affects privileges for more than 30 days, such as reducing, restricting, suspending, revoking or denying privileges. The NPDB also collects and disseminates information when there is a voluntary surrender of license or restriction of privileges while under investigation or in lieu of an investigation. Any voluntary surrender related to retirement, nonpayment of licensure renewal fees or changes to inactive status, if there is not an investigation in progress, are not reportable. Any disciplinary actions related to competence or professional misconduct are reportable, as are professional society review actions taken for reasons related to competence or professional misconduct that adversely affect membership in the society. Finally, Medicare and Medicaid exclusion reports containing sanctions against a practitioner from the Medicare or Medicaid program due to fraud and abuse are reportable. This list should not be considered exclusive.
Should you have questions regarding whether an occurrence is reportable, please refer to The National Practitioner Data Bank Guidebook.
The NPDB collects and disseminates information, such as professional liability payments made on behalf of a physician or other health care practitioners. Adverse action reports are based on professional conduct that adversely affects privileges for more than 30 days, such as reducing, restricting, suspending, revoking or denying privileges. The NPDB also collects and disseminates information when there is a voluntary surrender of license or restriction of privileges while under investigation or in lieu of an investigation. Any voluntary surrender related to retirement, nonpayment of licensure renewal fees or changes to inactive status, if there is not an investigation in progress, are not reportable. Any disciplinary actions related to competence or professional misconduct are reportable, as are professional society review actions taken for reasons related to competence or professional misconduct that adversely affect membership in the society. Finally, Medicare and Medicaid exclusion reports containing sanctions against a practitioner from the Medicare or Medicaid program due to fraud and abuse are reportable. This list should not be considered exclusive.
Should you have questions regarding whether an occurrence is reportable, please refer to The National Practitioner Data Bank Guidebook.
DEPOSITION FEES
By: Mary M. Cunningham
Before 1985 in Illinois, all non-expert treating physicians were like any other witness who received a subpoena for trial: these witnesses were entitled to only a mileage fee. In 1985, the Illinois Supreme Court created Supreme Court Rule 204(c) which regulates the depositions of physicians. The Rule stated that a party “may pay a reasonable fee to a physician for the time he or she will spend testifying in a deposition.” In 1989, the Illinois Supreme Court modified the Rule stating the party “shall pay a reasonable fee to a physician for the time he or she will spend testifying at a deposition.” See Illinois Supreme Court Rule 204(c).
In changing the Rule, the Supreme Court articulated its recognition that physicians spend time away from their practice testifying, and should be compensated for that time lost. However, the Supreme Court also set forth various fee collecting restrictions, including that the physician can be compensated only for time spent testifying at the deposition, the fee should be paid only after the doctor has testified and it should not exceed an amount which reasonably reimburses the doctor for the time he or she actually spends testifying at the deposition.
In 2010 the First District Appellate Court further addressed the issue in Montes v. Mai. 398 Ill.App.3d 424 (1st Dist.2010). After deciding that a chiropractor is a “physician” under the Supreme Court Rule 204(c), the Court went on to address the concept of a reasonable fee. In the Montes case, a chiropractor sought $550 per hour for his deposition testimony with pre-payment and a two hour minimum. Opposing counsel offered $300 per hour, which the chiropractor refused. The defendant brought a Motion to reduce the doctor’s fees, claiming they were unreasonable. In evaluating what a reasonable fee was, the court reviewed personal and corporate records submitted by the doctor. The doctor’s deposition fees were calculated by the court based on his income listed in a W-2 and divided that by 52 weeks at 40 hours a week. This came out to $66.95 per hour. The chiropractor appealed the decision.
The Appellate Court upheld the fee calculated by the Trial Court. It also stated that the defendant was not required to pay a two hour minimum or pre-pay the doctor. He was to be paid after his deposition for the time he actually spent in deposition. The Court did go on to suggest that the Trial Court’s method of calculation is not the only means by which a fair and reasonable fee can be calculated and it is understood that there might be other ways to obtain a reasonable fee. It stated however that “. . . patently the best approach is for a physician and the parties seeking a deposition to discuss this matter and reach an agreement”.
In changing the Rule, the Supreme Court articulated its recognition that physicians spend time away from their practice testifying, and should be compensated for that time lost. However, the Supreme Court also set forth various fee collecting restrictions, including that the physician can be compensated only for time spent testifying at the deposition, the fee should be paid only after the doctor has testified and it should not exceed an amount which reasonably reimburses the doctor for the time he or she actually spends testifying at the deposition.
In 2010 the First District Appellate Court further addressed the issue in Montes v. Mai. 398 Ill.App.3d 424 (1st Dist.2010). After deciding that a chiropractor is a “physician” under the Supreme Court Rule 204(c), the Court went on to address the concept of a reasonable fee. In the Montes case, a chiropractor sought $550 per hour for his deposition testimony with pre-payment and a two hour minimum. Opposing counsel offered $300 per hour, which the chiropractor refused. The defendant brought a Motion to reduce the doctor’s fees, claiming they were unreasonable. In evaluating what a reasonable fee was, the court reviewed personal and corporate records submitted by the doctor. The doctor’s deposition fees were calculated by the court based on his income listed in a W-2 and divided that by 52 weeks at 40 hours a week. This came out to $66.95 per hour. The chiropractor appealed the decision.
The Appellate Court upheld the fee calculated by the Trial Court. It also stated that the defendant was not required to pay a two hour minimum or pre-pay the doctor. He was to be paid after his deposition for the time he actually spent in deposition. The Court did go on to suggest that the Trial Court’s method of calculation is not the only means by which a fair and reasonable fee can be calculated and it is understood that there might be other ways to obtain a reasonable fee. It stated however that “. . . patently the best approach is for a physician and the parties seeking a deposition to discuss this matter and reach an agreement”.
COVENANTS NOT TO COMPETE: RECENT CHANGES IN THE LAW AND HOW IT MAY AFFECT YOUR PRACTICE
By: Randall J. Gudmundson
Many of you may be familiar with covenants not to compete, either as an employer who has placed such language in a contract, or as a physician who has been presented with an employment contract containing such language. Basically, a covenant not to compete is a clause that is put in an employment contract which restricts the employee from practicing in a defined geographical area, for a defined period of time, or from accepting patients from the employer’s practice after the employee leaves the practice.
Previously, Illinois law was fairly well settled on what would and would not be acceptable in such employment contracts. However, the Illinois Supreme Court recently issued an opinion (Reliable Fire Equipment Company v. Arredondo) regarding the enforceability of covenants not to compete. This could affect any contract you or your practice may currently have in place. Prior to placing such a clause in your practice’s employment contracts or signing such a clause yourself, you should determine whether such a clause would be valid.
In determining whether a covenant not to compete clause is valid the courts will look to a three prong test. First, the limitation on the employee must be necessary to protect the legitimate interest of the practice. Second, the limitation would not impose a hardship on the practitioner signing the contract. Third, the scope of the limitation is reasonable.
Significantly, the recent changes address the “legitimate business interest” test. The court will now determine whether a legitimate business interest exists which would support the employer’s right to such a clause based on all of the circumstances in each individual case. Instead of using a strict test, the court will consider various factors which include whether the employee has acquired confidential information that he/she may be taking to new employment; the nature of the customer relationship, for example whether the patient relationship is permanent or transitory; and any time and place of practice restrictions.
While the Illinois courts have upheld covenants not to compete in the past, in making this change, the Illinois Supreme Court has made it easier for employers to enforce the covenant not to compete. A court now has more ability to review the entirety of the situation in order to determine whether such a clause is valid and enforceable. The Court has not yet discussed the ramifications on the issue of patients moving practices due to changes in insurance and how this may affect such covenants.
Previously, Illinois law was fairly well settled on what would and would not be acceptable in such employment contracts. However, the Illinois Supreme Court recently issued an opinion (Reliable Fire Equipment Company v. Arredondo) regarding the enforceability of covenants not to compete. This could affect any contract you or your practice may currently have in place. Prior to placing such a clause in your practice’s employment contracts or signing such a clause yourself, you should determine whether such a clause would be valid.
In determining whether a covenant not to compete clause is valid the courts will look to a three prong test. First, the limitation on the employee must be necessary to protect the legitimate interest of the practice. Second, the limitation would not impose a hardship on the practitioner signing the contract. Third, the scope of the limitation is reasonable.
Significantly, the recent changes address the “legitimate business interest” test. The court will now determine whether a legitimate business interest exists which would support the employer’s right to such a clause based on all of the circumstances in each individual case. Instead of using a strict test, the court will consider various factors which include whether the employee has acquired confidential information that he/she may be taking to new employment; the nature of the customer relationship, for example whether the patient relationship is permanent or transitory; and any time and place of practice restrictions.
While the Illinois courts have upheld covenants not to compete in the past, in making this change, the Illinois Supreme Court has made it easier for employers to enforce the covenant not to compete. A court now has more ability to review the entirety of the situation in order to determine whether such a clause is valid and enforceable. The Court has not yet discussed the ramifications on the issue of patients moving practices due to changes in insurance and how this may affect such covenants.