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Cogan’s Corner – A Quick Study of the Medical Studies Act

Published September 26, 2014
COGAN’S CORNER
A Quick Study of the Medical Studies Act
Michael P. Cogan
Cogan & Power, P.C.

The Medical Studies Act (“MSA”)1 was enacted to uphold the laudable purpose of improving the quality of our health care and reducing rates of death and disease by encouraging frank, effective, professional self-evaluation among peers in the medical profession. The premise that underlies this statutory privilege is that physicians would not otherwise engage in candid evaluations of their colleagues through participation in the peer review process. The MSA was enacted to benefit the general public as opposed to physicians whose performance was under review. However, the MSA privilege is often exploited and the Act’s ultimate purpose frustrated by hospitals’ efforts to hide behind the privilege and exhaust a patient’s discovery efforts in medical negligence cases at every opportunity.

Any document that was initiated, created, prepared or generated by a quality improvement committee including departmental Morbidity and Mortality (M&M) meetings is protected by the MSA privilege.2 This would be part of a “root cause analysis” prescribed by the hospital. Once the root cause analysis is under way the documents protected by the MSA include investigator’s discussions, internal conclusions and recommendations. Notwithstanding this, ultimate decisions or actions undertaken in response to a peer- review committee’s action plan are discoverable.3

Crucial to MSA application is the temporal element because it presumes that a committee was actually formed to address an incident. Illinois case law construing the MSA has narrowed the scope of its application. Information generated prior to or after the peer review process is generally discoverable.4 For this reason hospitals often set policies that require explicit establishment of the time frame of the review process. Hospital committees must be integrally involved in this review process and conduct, request or direct staff and expert reviews. If any of the hospital’s work is performed outside of the review process the hospital risks disclosure.

As a practical matter, many events that give rise to medical negligence claims are subject to some sort of reporting requirement. Under the Illinois Health Care Adverse Events Reporting Law5 health care facilities are required to report adverse health care events as defined by the Law. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) seeks voluntary reporting of so-called “sentinel events.”6 The process begins with an incident report that is usually completed by a nurse. This report is discoverable and valuable as it includes the names of potential witnesses and details of conduct that are integral to the plaintiff’s theories of negligence. Accordingly, my initial discovery includes requests to “produce the policy/procedure and/or protocol in force on the date of occurrence which references, in any respect incident reports, reports of unusual occurrences or similar reporting vehicles irrespective of the name of the document created.” This encompasses incident reports, sentinel event reports, or reports of an adverse health care event. Most importantly, I also request an index of hospital policies and procedures. This index allows me to pinpoint the policies relevant to my client’s claim and serve supplemental discovery seeking the specific germane document.

In my experience hospitals try to cloak all of their efforts under the auspices of a committee, peer review process. The reality is that investigations into an event that gives rise to a medical negligence claim may be initiated and interviews conducted before the review committee is actually formed. The fruits of such investigations are therefore discoverable. Indeed, informal conversations between colleagues after the incident are not within the scope of the MSA.7 Since it is the hospital’s burden to establish that the privilege applies it must be compelled to provide evidence of the date the committee was formed and its activities relating to a specific patient commenced. Privilege logs and in camera inspections of documents should document and confirm the applicable time sequence.

The Fifth District has recently shed light on the deficiencies in affidavits supporting the MSA privilege that will lead to the discovery of documents. Klaine v. Southern Illinois Hospital Services.8 Information obtained prior to the initiation of a peer review process is not transformed into “information of” a peer review committee simply because it is reported to that body at a later date. Illinois courts reason that if the act of furnishing earlier-acquired information were sufficient to render that information privileged, a hospital could effectively insulate virtually all adverse facts known to its medical staff from disclosure except for matters contained in the patient’s record. Consistent with these principles the court determined that the affidavits in Klaine did not establish that the history of procedures performed by the defendant physician at the defendant hospital would not have been kept in the ordinary course of business of the hospital prior to the appropriate committees commencing the peer review process. Even the fact that the information was furnished to these committees as a summary report did not convert them to privileged material. The court also found that the documents contained raw data regarding the procedures that the doctor performed and contained no data reflecting any physician’s evaluation of the doctor’s performance. The Klaine plaintiffs were able to discover significant information about procedures in which the defendant physician participated.

Klaine and its progeny remind us to aggressively pursue discovery from hospitals beyond the traditional patient medical records. Plaintiffs must make the hospital accountable for providing any such relevant information as well as establishing a clear timeline for the formation of any peer review committees to address the event and the commencement and scope of the peer review process. The plaintiff’s inquiry should seek not only the nature of the document but also confirmation of its creation date in the privilege log relative to the commencement of the peer review process and indexes where appropriate. As the documents come to light further inquiry should be made to determine whether the documents were generated in the normal course of the hospital’s business rather than specific to the review process. The defendants bear the burden of attaching the MSA privilege and it is our job to make them feel the full weight of that burden in the spirit of the Act’s ultimate purpose to well serve the patient.

******* CALL TO ACTION TO COGAN’S CORNER READERS: I received a lot of positive feedback from my last installment “The Lawyer’s Guide to the Aspirational Rules and Code of Civil Procedure.” It has prompted me to create a LinkedIn Group around these types of issues to exchange information, discuss practical strategies and solutions, as well as marshal support for changes in the law to address the more vexing legal issues and vacuums. Please connect with me on LinkedIn and then join our group Cogan’s Corner.

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1 735 ILCS 5/8-2101.
2 Id.
3 Chicago Trust Co. v. Cook County Hosp., 298 Ill. App. 3d 396 (1st Dist. 1998).
4 Tunca v. Painter, 2012 IL App (1st) 110930.
5 410 ILCS 522/10-1, et seq.
6 http://www.jointcommission.org/Sentinel Event Policy and Procedures.
7 Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993).
8 2014 IL App (5th) 130356 (August 6, 2014).

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