The natural enmity between physicians and attorneys is most obvious in medical malpractice cases. However, when one stops to think about why medical malpractice cases are brought, it is apparent that the goals of both professions are very similar. Lawyers seek to help injured clients to make them "whole" again, if possible, and to prevent the circumstances that resulted in an injury from occurring again. Physicians and other health care professionals testify in medical malpractice cases to clarify relevant standards of care in the performance of specific medical procedures to assist the trier of fact in determining whether a malpractice occurred and to educate their colleagues to prevent the circumstances that resulted in an injury from recurring.
I. Discovery of Medical Records Under the Medical Studies Act
One area of the law where the clash of the two professions is most fierce is the discovery of medical records. That fire is fueled, in part, by claims of confidentiality and privilege pursuant to the Medical Studies Act (hereinafter referred to as the Act). The Act provides in relevant part as follows:
"All information, interviews, reports, statements, memoranda, recommen-dations, letters of reference or other third party confidential assessments of a health care practitioner’s professional competence, or other data of … committees of licensed or accredited hospitals or their medical staffs…used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care or increasing organ and tissue donation, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges or agreements for services…."
735 ILCS 5/8—2101 (West 2002).
II. The Illinois Courts’ Fact-Driven and Balancing Approach
While some decisions from other states take a bright-line approach to the privilege offered by medical services acts, two recent Illinois appellate court opinions have suggested a fact-driven, balancing approach to determine the applicability of the privilege.
A 1998 decision of a Minnesota reviewing court stated that all data and information discussed by health review organizations is confidential and subject to neither discovery nor subpoena.1 Such a ruling only requires an inquiry into whether the information sought was discussed by a legitimate health review organization. The ruling disregards any privacy interest that a patient might have in her or his own medical records.
Illinois, on the other hand, has consistently taken a different approach. The two most recent cases are Berry v. West Suburban Hospital2 and Green v. Lake Forest Hospital3. A Rule 23 order was also recently issued in a Second District case using the same fact-driven and balancing approach.4
These three Illinois decisions indicate that the purpose of the Act is to ensure that the members of the medical professions will effectively engage in self-evaluation of their peers in the interest of advancing the quality of health care. Each decision identifies that confidentiality of reports generated by the peer-review committees is crucial to the candid evaluation process. However, each decision also recognizes that the Act protects only the process used by legitimate peer-review committees that are in place with recognizable procedures and regulations. The Act does not protect the records of medical-staff committees or the hospital administrative authorities. Furthermore, inherent within the decisions is the public policy determination that peer-review is essential to the delivery of safe and successful health care, but that such a goal is subservient to the rights of patients or their surviving family members in certain circumstances.
The Green5 case highlights the responsibility of the party claiming the privilege to establish its entitlement. Therefore, the procedures and regulations of the peer-review entity will be important in deciding whether the reports or records may be discovered. In particular, the timing of the generated reports, the specific request for interviews of personnel, and the authorized person or persons conducting the review should all be clearly documented.
Moreover, Green6 holds that although the nature and content of the peer-review process are privileged and confidential under the Act, the ultimate recommendation of the peer-review authority is neither per se confidential nor privileged under the Act. In fact, all three Illinois cases suggest that a careful eye must be cast upon the peer-review purpose, process, and resulting recommendation to determine whether a privilege applies.
III. Final Observation About the Act
The Act imposes criminal liability upon anyone who discloses privileged information. Therefore, it is understandable that hospitals and other medical entities will be very careful when discovery requests and subpoenas relentlessly shoot through their mail slots. Many of the cases reported under the Act arise out of a contempt proceeding whereby the hospital or other medical entity refused the turnover order of the trial court to accomplish an appellate court review. But take heed, a 1993 decision makes it clear that producing documents pursuant to a valid court order does not constitute the unauthorized disclosure of privileged information which would render the complying party guilty of a criminal offense.7
1 Amaral v. Saint Cloud Hospital, 586 N.W. 2d 141 (Minn. Ct. App. 1998).
2 338 Ill.App.3d 49, 788 N.E.2d 75, 272 Ill.Dec.771 (1st Dist. 2003).
3 335 Ill.App.3d 134, 781 N.E.2d 658, 269 Ill.Dec. 861 (2nd Dist. 2002).
4 Huffman v. Strohmayer, No.2—02—0485 (2nd Dist. 2003).
5 Green, 335 Ill.App.3d at 138, 781 N.E.2d at 662, 269 Ill.Dec. at ___ .
7 Menoski v. Shih, 242 Ill.App.3d 117, 612 N.E.2d 834, 183 Ill.Dec.907 (2nd Dist. 1993).
Susan F. Hutchinson is the Presiding Justice of the Illinois Appellate Court, Second District. She received her B.A. degree in political science from Quincy University in 1971 and her J.D. degree from DePaul University School of Law in 1977. She served as an Assistant State’s Attorney in McHenry County (1977-81) and a Judge in the Nineteenth Judicial Circuit (1981-94). In November 1994, she was elected as a Judge in the Appellate Court, Second District.