Illinois Court Offers Reminders on How to Protect Peer Review Privilege

January 2018

The laws of the State of Illinois have for years encouraged peer review by healthcare providers. The State's position is that the “candid and conscientious evaluation of clinical practices” is essential to the provision of adequate hospital care. In furtherance of this view, the Illinois Medical Studies Act protects from discovery in civil litigation certain reports and other information used by hospitals in the course of internal quality control. This peer review privilege removes a potential obstacle to the in-depth, critical evaluation that is essential to any peer review process. However, the law seeks to balance the need for effective peer review against a plaintiff’s right to documents related to an incident that he or she alleges caused an injury or illness. This means that not all documents generated in the peer review process are necessarily privileged.

A recent case decided by an Illinois appellate court underscores that certain procedures must be followed in order for the privilege to apply. In Grosshuesch v. Edward Hospital, the defendant had a standing medical staff quality committee (MSQC) and a liaison to the MSQC (who was not on the committee, presumably a hospital employee). A medical incident occurred and, in response to the plaintiff’s concerns about the quality of care, the liaison consulted two expert peer reviewers before the MSQC had met or requested any peer review. The plaintiff eventually filed a lawsuit and sought the liaison’s notes based upon the experts’ reports. (The facts are not entirely clear, but it appears that because the experts reported orally and not in writing, their reports were not at issue in the case.) The hospital claimed that the notes were privileged under the Medical Studies Act. The trial court ordered them to be produced, and the appellate court affirmed.

The hospital was correct in maintaining that the content of the documents should fall within the scope of the privilege, since the notes were related to the evaluation of clinical practices at the hospital. However, the hospital lost because it did not follow appropriate procedures. The Medical Studies Act protects from discovery in civil litigation the documents used and produced by committees of hospitals and their medical staffs that are involved in the peer review process. Here, the notes at issue were based on information obtained before the MSQC first met concerning this incident and were produced before the MSQC met. The Medical Studies Act does not protect against disclosure of information generated before the peer review process begins. The court in Grosshuesch thoroughly examined existing precedent to support its holding that the Medical Studies Act cannot be used to “conceal relevant evidence” created before a quality assurance committee has authorized an investigation. Moreover, the court stated, a hospital cannot designate in advance that certain materials would be generated by and for a quality committee and expect the privilege to apply.

Although this case is not necessarily groundbreaking, it does offer helpful reminders to Illinois hospitals and their medical staffs who strive to protect peer review activities from discovery in civil litigation. Adverse events are usually reported to a risk manager or safety officer through an employee hotline, a patient complaint, or a similar method. Rather than allowing that person to initiate an investigation independently, best practice would be to have a hospital committee charged with quality assurance or peer review meet at the outset to authorize an investigation into the specific incident. Then, the investigative materials would flow from that authorization. To promote such a process, the documents governing a hospital’s medical staff should be crafted to require the early involvement of a peer review committee, and procedures should be put in place to ensure that this happens. In addition, because the timing of the various actions can be crucial (as affirmed in Grosshuesch), the committee should carefully document the date and time that it initiated and authorized the investigation.

Illinois hospitals should contact Scott Moore, Mike Davidson, or one of their regular Lewis Rice healthcare attorneys if they have concerns about the processes they are using to investigate medical incidents in their facilities or have questions about steps they can take to protect peer review documents from discovery.