Cook County Judge’s Ruling on Privilege of MRSA Data Reversed By Illinois Appellate Court – Zangara et al. v. Christ Medical Center

A Cook County hospital infection decision by the Illinois Appellate Court clarifies what types of medical records are discoverable. The court ruled in Joseph Zangara and Wayne Dziamara v. Advocate Christ Medical Center, Paul Gordon, et al., Nos. 1-09-1911 and 1-09-1914, that the defendant hospital was required to produce records documenting the number of MRSA infections at the hospital for a three month period.
The Illinois medical malpractice lawsuit involved two consolidated MRSA lawsuits filed against Advocate Christ Medical Center. Joseph Zangara and Zigmund Dziamara were both hospitalized at Christ Medical Center during the same time period in 2005. Both Zangara and Dziamara acquired MRSA, or methicillin-resistant staphylococcus aureas, during their admissions; however, Zangara survived the infection, while Dziamara did not. Both Zangara and the estate representing Dziamara filed civil lawsuits against Christ Medical Center that accused the Oak Lawn hospital of negligent management regarding its infection control procedures.

Both lawsuits were filed against Christ Medical Center without the necessary §2-622 form. In Illinois, medical malpractice lawsuits are required to carry a §2-622 form completed by a physician that there is enough evidence to support that the defendant doctor or hospital failed to meet the appropriate standard of care. The purpose of this form is to prevent plaintiff attorneys from filing medical malpractice lawsuits without just cause.
However, given that Zangara and Dziamara’s hospital infection lawsuits hinged on the hospital’s failure to follow adequate safety procedures, a medical expert would require additional information about the hospital’s policies, etc. in order to determine the extent of negligence. Neither plaintiff had these documents at the time the medical malpractice lawsuits were filed; therefore neither complaint had a §2-622 form attached. Instead, the plaintiffs attached §2-622(a)(3) affidavits, which stated that the reason they had not included a §2-622 physician report was that the defendants had not yet complied with the plaintiffs’ discovery request for certain relevant documents.
Specifically, the plaintiffs had submitted discovery requests to the hospital for infection data, which would presumably include the number of MRSA patients at Christ Medical Center during the 90 days before both plaintiffs’ admissions. The plaintiffs would then submit this information to their medical experts to evaluate whether or not Christ Medical Center experienced unusually high numbers of MRSA patients during that period. After the plaintiffs’ medical experts reviewed these records, presumably the plaintiffs’ attorneys would be able to modify the original complaint by attaching a §2-622 physician report.
However, Christ Medical Center took the stance that the plaintiff was not entitled to the requested MRSA data and also that the plaintiffs’ were in violation of the §2-619 of the Illinois Code of Civil Procedure because they had failed to attach the §2-622 reports to their original complaints. The hospital argued that the MRSA information was privileged and that the hospital was only required to produce the plaintiffs’ personal medical records.
In its motion to dismiss the plaintiffs’ consolidated claims, the defense argued that the MRSA data was privileged according to the Medical Studies Act, 735 ILCS 5/8-2101. If the courts agreed that the necessary MRSA data was in fact privileged, then it would be impossible for the plaintiffs to prove their claim that their infections were caused by a gross violation of infection policies and procedures on behalf of Christ Medical Center. Likewise, the plaintiffs would then be unable to produce a §2-622 physician report and would be in violation of the statutory requirement for such reports when filing Illinois medical malpractice lawsuits.
After the filing of several additional motions by both parties, the trial judge eventually ruled in favor of Christ Medical Center, stating that the MRSA data was in fact privileged. However, the plaintiffs appealed that decision to the Fifth District Illinois Appellate Court, which reversed the trial judge’s ruling.
In its decision, the Illinois Appellate Court pointed out a major error in the trial judge’s ruling, namely that by applying the trial court’s logic the defense was held to a lower standard than a respondent in discovery. In ruling on the defense’s motion to dismiss, the trial judge had referred to Illinois Code §8-2001(b), which governs a patient’s right to examine his own health care records. Under §8-2001(b), a hospital is required to produce an individual’s health care records upon request.
The trial court interpreted the statute to mean that a hospital is only required to produce the patient’s own records during presuit discovery in an Illinois medical malpractice lawsuit. However, the appellate court pointed out a key contradiction in this line of logic – the Illinois Code of Civil Procedures requires a “respondent in discovery” to produce any and all discoverable records without making any distinction between discoverable records before and after a complaint is filed.
Yet a respondent in discovery is not actually a party to the lawsuit, they are just an entity that possesses key records. Therefore, it would seem to violate the intention of the Code of Civil Procedures to hold a non-party to a higher standard than a named defendant. Therefore, the Appellate Court felt that in this instance the trial court’s decision did not follow the intent of the law.
The Appellate Court also reversed the trial judge ruling the MRSA records were not discoverable because they were privileged according to the Medical Studies Act. To support its decision, the Appellate Court again referred to the initial intention of a statute. It stated that the purpose of the Medical Studies Act was to product the confidentiality of documents a medical provider generates during an internal review meant to improve the overall quality of healthcare.
However, while the defendant hospital argued in its motion that the MRSA data was included in the general umbrella of internal review documents, the Appellate Court stated that the Medical Studies Act only privileges internal documents generated for the purpose of peer review committees. The idea being that when undergoing the peer review process it is important for all parties involved not to worry about potential medical malpractice lawsuits arising as a result of their findings; removing this concern presumably will ensure that the information generated by peer review committees is genuine and will ultimately improve the quality of healthcare. The same concern is not present in the generating of hospital data and statistics, such as the number of MRSA infections in the hospital over a given period.
After reversing both of the trial judge’s rulings that led to the defendant’s motion to dismiss, the consolidated case was remanded to the lower court to continue the discovery process. As a result of the Appellate Court’s ruling, Christ Medical Center will be required to produce the MRSA data documents, which will presumably allow the plaintiffs to satisfy the §2-622 form requirement.
Kreisman Law Offices has been handling Cook County medical malpractice lawsuits for individuals and families for more than 35 years in and around Chicago, Cook County, and surrounding areas, including Libertyville, Prospect Heights, Melrose Park, Morton Grove, and Rosemont.
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