Illinois Supreme Court Distinguishes Between Privileged Information and Confidentiality in Medical Negligence Case

Carol and Keith Klaine filed a medical malpractice lawsuit against Frederick Dressen D.O. and Southern Illinois Medical Services d/b/a The Center for Medical Arts. In an amended complaint, the plaintiffs added a party defendant, Southern Illinois Hospital Services d/b/a St. Joseph Memorial Hospital and Memorial Hospital of Carbondale (SIHS), for negligent credentialing of Dr. Dressen.

In the discovery process, SIHS provided over 1,700 pages of documents. However, SIHS refused to provide certain documents, which it listed in a privilege log, as required by Illinois Supreme Court Rule 201(n), asserting that the withheld documents were privileged pursuant to, inter alia, the Medical Studies Act (735 ILCS 5/8-2101) and the Healthcare Professional Credentials Data Collection Act (Credentials Act) (410 ILCS 517/1 et seq.).

The plaintiff moved the court to review the SIHS excluded documents that it claimed were privileged for an in-camera review. After reviewing the documents, the circuit court judge agreed with SIHS that all of the documents were privileged, with the exception of those documents contained in “Group Exhibit B,” “Group Exhibit F” and “Group Exhibit J.”

SIHS complied with the court’s order compelling the production of documents in Group Exhibit B, but continued to maintain that the documents in Group Exhibit F and Group Exhibit J were privileged. Group Exhibit F consisted of Dr. Dressen’s three applications to SIHS for staff privileges dated Dec. 1, 2011 (47 pages), Feb. 19, 2009 (37 pages) and Aug. 13, 2010 (33 pages). Group Exhibit J contains “procedure summaries and case histories” that, essentially, list the various surgical procedures that Dr. Dressen performed at SIHS hospitals. To move this case from the circuit court to the appellate court, the circuit court judge held SIHS in “friendly contempt” and imposed a $1 monetary sanction. Thereafter, SIHS filed an interlocutory appeal in the appellate court pursuant to Illinois Supreme Court Rule 304(b)(5).

The appellate court affirmed the court’s ruling with two modifications. Parts of the exhibits were redacted. In any event, SIHS filed a petition for leave to appeal to the Illinois Supreme Court which was allowed.

On appeal, SIHS limited its challenge to the discovery order in regard to Group Exhibit F. SIHS then contended that Group Exhibit F, which consists of Dr. Dressen’s three applications for staff privileges, is nondiscoverable in its entirety pursuant to section 15(h) of the Credentials Act, which provides that all “credentials data collected or obtained by the *** hospital shall be confidential.” 410 ILCS 517/15(h). SIHS also contended that the appellate court’s judgment in this case conflicts with the judgment in another case, TTX Co. v. Witley, 295 Ill.App.3d 548, 556 (1998), wherein the court interpreted a confidentiality provision similar to the one here and held that confidential materials were privileged and could not be disclosed.

It should be noted that privileges are designed to protect interests outside the truth-seeking process and, as a result should be strictly construed as exceptions to the general duty to disclose. Martinez v. Pfizer Laboratories Division, 216 Ill.App.3d 360 (1991). The court went on to state that “one who claims to be exempt by reason of privilege from the general rule which compels all persons to disclose the truth has the burden of showing the facts which give rise to the privilege. A mere assertion that the matter is confidential and privileged will not suffice.” Cox v. Yellow Cab Co., 61 Ill.2d 416, 419-20 (1995).

SIHS argued that Group Exhibit 5, which contained Dr. Dressen’s three applications for staff privileges, were privileged in entirety. It argued that the Credentials Act supported its position.

At the appellate court in this case, it was held that the plain language of section 15(h) of the Credentials Act does not create a privilege against discovery for applications for staff privileges. 2014 IL App (5th) 130356. Although the statute provides that credentials data collected or obtained by a hospital is “confidential, as provided by law,” the appellate court held that confidentiality, discoverability, and admissibility are distinct concepts. The court drew a distinction between information which is “confidential” and information which is “privileged” and therefore, nondiscoverable and inadmissible. Further, recognizing that privileges are strongly disfavored, the appellate court held “there is no general principle under Illinois law that provides that information that is otherwise discoverable is privileged because it is confidential.”

The appellate court declined to follow the rationale in TTX Co., 295 Ill.App.3d at 555 and concluded that, to create a privilege, the plain language of the statute must explicitly state that the information that is confidential is also privileged, nondiscoverable, or inadmissible. The Supreme Court agreed with that conclusion.

The Illinois Supreme Court found that the physician’s applications for staff privileges were not categorically privileged under the Credentials Act. The materials were highly relevant and SIHS failed to show how applying a blanket privilege would advance interest outside the search for truth.

In future medical malpractice cases alleging negligent credentialing, a plaintiff will still be tasked with proving that the hospital chose not exercise reasonable care in granting a physician privileges, the physician was negligent and that the negligent grant of privileges was the proximate cause of the plaintiff’s injuries. Frigo v. Silver Cross Hospital & Medical Center, 377 Ill.App.3d 43, 72 (2007).

Accordingly, the Illinois Supreme Court affirmed the Illinois Appellate Court’s decision compelling the production of Exhibit J documents which included the three applications made by Dr. Dressen.

Klaine v. Southern Illinois Hospital Services, 2016 IL 118217 (Ill. S.Ct.)

Kreisman Law Offices has been handling medical negligence cases, wrongful death lawsuits, birth injury cases and cardiovascular negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Niles, Des Plaines, Northbrook, Norwood Park, Oak Park, River Forest, Skokie, Cicero, Stickney, Prospect Heights, Justice, Hillside, Hinsdale, Wheaton, Elgin, Aurora, Elk Grove Village, South Holland, Chicago Heights, Northbrook, Evanston and Evergreen Park, Ill.

Related blog posts:

Illinois Appellate Court Affirms Trial Judge’s Summary Judgment Regarding Cook County’s Sovereign Immunity in Medical Negligence Case

$514,000 Jury Verdict Entered in Wrongful Death for Failure to Diagnose Internal Bleeding

$2.25 Million Settlement when Hospital Chooses Not to Send Patient to Hospital When Stroke Symptoms Were Obvious