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Cogan’s Corner – Keeping Hospitals Accountable to Medical Studies Act

Originally published in the October 9, 2014 edition of the Chicago Daily Law Bulletin.

This article explains how the Medical Studies Act is to improve our health care and its ultimate purpose is to well serve the patient. To maintain such goals Michael Cogan, attorney at Cogan & Power says we have to keep the hospitals accountable.

Keeping hospitals accountable to Medical Studies Act requirements

The Medical Studies Act (735 ILCS 5/8-2101) 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 at every opportunity in medical negligence cases.

Any document that was initiated, created, prepared or generated by a quality improvement committee including department morbidity and mortality (M&M) meetings is protected by the MSA privilege, Id. This would 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. Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396 (1st Dist. 1998).

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. Tunca v. Painter, 2012 IL App (1st) 110930.

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 Law (410 ILCS 522/10-1, et seq.), health-care facilities are required to report adverse health-care events as defined by the law.

The Joint Commission on Accreditation of Healthcare Organizations (jointcommission.org) seeks voluntary reporting of so-called “sentinel events.”

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 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 under the 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 MSA. Roach v. Springfield Clinic, 157 Ill 2d 29 (1993). 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.

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