Appellate Court Sets Rules for Protecting Peer Review from Discovery
DECEMBER 14, 2016
In Eid v. Loyola University Medical Center, Illinois’ First District Appellate Court confirmed the application of a privilege under the Illinois Medical Studies Act (Act), 735 ILCS 5/8-2010, to documents created at the direction of the chairperson of a hospital committee prior to an actual meeting of the committee. In doing so, the Appellate Court affirmed the trial court’s determination that 13 pages of the disputed documents were privileged and could not be used as evidence against the hospital.
In Eid, a child passed away at the defendant hospital following pacemaker replacement surgery. The morning after the child’s death, the risk manager contacted the chairperson of the hospital’s Medical Care Evaluation and Analysis Committee (MCEAC) to advise him of the incident. The chairperson instructed the risk manager to investigate the incident on the committee’s behalf from a quality perspective. The risk manager assembled information and reported that information back to the chairperson and another committee member for use by the committee in evaluating and improving patient care. The hospital’s bylaws specifically permitted the chief medical officer of the hospital to begin an investigation. And, the chief medical officer who was the chairperson of the committee frequently directed the risk manager to perform investigative duties on behalf of the committee.
In rendering its decision, the appellate court found that the Act covers information generated by a designee of the peer review or other committee for use by the committee in the course of internal quality control. The court pointed specifically to the 1995 amendments to the Act which added the phrase “or their designees” to modify the individuals who could create or generate information protected from disclosure by the Act. The appellate court noted that the trial court had found that the hospital’s bylaws allowed the committee chairperson to direct that an investigation be commenced, as compared to previous reported decisions where the hospital’s bylaws did not contain a provision conferring on someone in the officer or chairperson’s position the authority to act for the committee in conducting interviews or investigations prior to a committee meeting. In addition, the court found that the documents at issue were actually considered by the committee prior to the conclusion of the committee’s review. The court also noted that documents collected by the risk manager before she was directed to act by the committee chairperson had been produced by the hospital and the hospital did not claim a privilege for these documents.
To claim a privilege under the analysis in Eid a hospital should confirm:
- The hospital’s bylaws specifically reference the creation of the committee for purposes of internal quality control, medical study for the purpose of reducing morbidity or mortality, or improving patient care;
- The hospital’s bylaws specifically allow the chairperson of the committee to commence the committee’s investigation of an incident on behalf of the committee;
- The hospital’s bylaws allow a designee of the chairperson to undertake an investigation on behalf of the committee;
- The chairperson directs a designee to gather information from a peer review and/or internal quality control perspective;
- The designee of the committee has not begun to collect the information until directed to do so by the committee chairperson;
- The designee delivers the information to the committee and the information is used or reviewed by the committee as part of the committee’s internal review process.
Unless each of these factors is satisfied, the privilege under the Act will likely not apply to documents generated before a formal hospital committee meeting.