Promoting Improvement in Health Care by Protecting the Peer Review Process

Written by: Sarah Rodak Johnson, Cunningham, Meyer, & Vedrine, PC, Chicago

When medical treatment is associated with an adverse outcome, the health care organization providing the care and/or government agencies may investigate the matter in an effort to improve patient care and reduce morbidity or mortality. To ensure a candid and effective evaluation, the Illinois legislature enacted the Illinois Medical Studies Act (“the Act”), which protects any and all information gathered and maintained in the process of “internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care . . .” 735 ILCS 5/8-2101. Said information shall not be discoverable in any action. 735 ILCS 5/8-2102. The Act applies to a variety of institutions and government agencies, including health maintenance organizations, accredited hospitals or their medical staffs, and committees of ambulatory surgical treatment centers or post-surgical recovery centers or their medical staffs. 

The Act has been at the center of litigation for decades as lawyers, government agencies, health maintenance organizations, insurance companies, hospitals, health systems, and courts struggle to define what information is protected by the Act. While there have been no firm answers, a number of rulings provide guidance to litigators and their clients who are seeking to invoke the privilege of confidentiality afforded by the Act.

Typical discovery in a case alleging medical negligence includes a request by the plaintiff for documentation and names of individuals who participated in any peer review, quality assurance, or morbidity and mortality conference associated with the treatment at issue. While the initial response would be a general objection pursuant to the Act, defense counsel is often compelled to establish the information deemed privileged is in fact protected under the Act. To successfully protect the names of individuals and information generated, the court must be provided with a detailed privilege log, affidavit(s) in support of the privilege log, and the documents at issue for in camera inspection. When attempting to establish protection under the Act, there are a variety of steps the courts have suggested or considered, which a party seeking protection should address within the supporting affidavits.

First, is the committee at issue the type of committee afforded protection? Under Green v. Lake Forest Hospital, an investigation instituted by an internal hospital administration committee is not the type of committee afforded protection. Green v. Lake Forest Hospital, et al., 335 Ill. App. 3d 134, 138 (2d Dist. 2002). As found within the plain language of the statute, the committee must be in place to reduce morbidity and mortality or improve patient care. An affidavit should classify the reviewing committee as one created solely for the purpose of conducting quality review.

Second, has a peer review investigation been initiated? The entirety of the peer review committee does not need to be aware of an incident or already engaged in the review process for an investigation to be considered “initiated.” Rather, do bylaws, policies and procedures, or any other document created by the health care or government entity afford an individual holding a specific title the ability to initiate a peer review investigation? In Eid v. Loyola, the Illinois Appellate Court First District determined that the Chief Medical Officer of Loyola University Medical Center had the right to initiate a peer review investigation based on the hospital’s bylaws. Eid v. Loyola, 2017 IL App (1st) 143967, ¶ 2. Those individuals afforded the ability to initiate a peer review may vary from institution to institution, and an affidavit should establish the individual who initiated the investigation had the power to do so. The date, and in some circumstances the time, when the investigation was initiated should also be referenced within the affidavit(s).

Third, is the individual conducting the investigation and generating information an individual acting within the scope of their role as a member of the peer review committee or designee of said committee? When interpreting the plain language of the Act, the First District has held that information generated during the peer review process, or for use during said process, by a designee of the peer review committee would be protected. Eid, 2017 IL App (1st) 143967, ¶¶ 41-43. A risk manager investigating an adverse patient outcome, at the request of the hospital’s Chief Medical Officer, was considered a designee of the peer review committee; thus, her investigation and documents generated as a result of her investigation were considered protected under the Act. Id. ¶¶ 16, 53. An affidavit should establish that the investigating individual was directed by someone with proper authority to initiate the peer review process in an effort to obtain, investigate, or gather information regarding a certain event. Said individual would thus be considered a designee of the peer review committee, and the information they generated would likely be considered protected under the Act.

Finally, was the information sought to be protected information generated during or in the course of the peer review process? A form suspending a nurse following improper administration by said nurse of a “precipitating intravenous solution” failed to reference the occurrence at issue or the hospital investigation committee and was therefore not considered privileged as it was not created as part of the peer-review process. Green, 335 Ill. App. 3d at 137. However, mechanisms of the peer review process, information gathered, and deliberations leading to the ultimate decision are all protected. Id. at 138. Similarly, information gathered and reported to the peer review committee, and/or subcommittees of the peer review committee, which was considered prior to the committee forming any conclusions, would be privileged. Eid, 2017 IL App (1st) 143967, ¶ 52. The committee’s ultimate recommendations and conclusions would not be protected.

Detailed affidavits in support of a privilege log for documents considered protected under the Act, which have been submitted for in camera inspection to the court, are essential to ensuring the court finds the documents privileged under the Act. An affidavit, or affidavits, that cover the above four areas addressed by Illinois appellate court decisions are the best measures a defense attorney can utilize when asserting the application of the Illinois Medical Studies Act.

About the Author

Sarah Rodak Johnson is a Partner at Cunningham, Meyer, & Vedrine, PC, practicing in their Chicago office. She focuses her practice on the defense of healthcare organizations and medical providers against claims of medical and institutional negligence. Over the course of her career, Ms. Johnson has tried over 40 civil cases to verdict as a first-chair, tried over 10 medical malpractice cases to verdict, and achieved the dismissal of numerous clients during the discovery phase of litigation. Ms. Johnson is a graduate of John Carroll University (2003) and the John Marshall Law School (2006).