A wrongful-death case was brought against One Hope United Inc., one of its employees and the Cook County public guardian who was acting as administrator of 7-month-old Marshana Philpot. One Hope provides services to troubled families under a contract with the Illinois Department of Children and Family Services (DCFS). One of its assignments from DCFS was to oversee Marshana and provide counseling to the child’s mother, Lashana Philpot.
Marshana had been hospitalized for failure to thrive and was eventually returned to Lashana Philpot under One Hope’s “intact family services” program. Unfortunately, the baby drowned in a bathtub allegedly because Lashana Philpot left her unattended.
In the wrongful-death case, the attorneys requested One Hope’s “priority review” report on the child’s death. The agency objected and invoked the privilege for self-critical analysis.
One Hope argued that adopting this privilege would further the public policy of the Child Death Review Team Act and would be consistent with the “quality control” privilege provided by the Medical Studies Act.
Affirming a ruling against One Hope, the Illinois Supreme Court declined to adopt the new privilege, “as we consider the matter more appropriately a subject for the legislative action.”
The self-critical analysis privilege appears to have originated in Bredice v. Doctors Hospitals, Inc., 50 F.R.D. 249 (D.D.C. 1970), a medical malpractice case. In that case, the court held that a decedent’s administratrix in a medical-malpractice suit could not obtain the discovery of the minutes and reports of the hospital’s staff review meeting. The court stressed the confidentiality of the medical staff’s evaluation of potential improvements in its procedures and treatments were so essential to the self-review process that allowing discovery would chill the candor required for an effective internal review. Id. at 250.
The court recognized that the long-term public benefits of improved healthcare outweighed the needs of the litigant seeking discovery, and, thus, should not be sacrificed without a showing of good cause. Id. at 251.
The issue in this case is whether Illinois should recognize the self-critical analysis privilege. The Illinois Appellate Court has been asked to consider recognition of the self-critical analysis privilege in at least three different contexts, including the case now before the Illinois Supreme Court. In each instance, the appellate court declined to recognize the prospective privilege. The Illinois Supreme Court emphasized that judicial infringement upon which is principally a policy-making decision for the legislature, and in the second, for consideration of legislative enactments that are in place before deciding whether expressions of public policy therein warrant a “rare” exercise of judicial authority in furtherance thereof.
In the appellate court case, One Hope argued the relevance of two legislative acts: The Child Death Review Team Act and the Medical Studies Act. In the appellate court decision it was found that the Medical Studies Act did not apply to institutions such as One Hope. The legislature could have extended this quality control privilege to all kinds of entities, public and private, based upon the rationale that internal review might benefit others using those services or products in the future. However, the legislatures’ approach has been targeted and narrow. The court stated that the legislative intent to limit, rather than expand, the scope of the privilege shows its intent. The same would apply to the Child Death Review Team Act which provides for the circumstance where a child dies who was under the care of, or receiving services from, DCFS and under the jurisdiction of the juvenile court, disclosure of records, other than those produced by the Child Death Review Team [Act] or the [agency’s] executive council, is permissible to the minor’s attorney.
In conclusion, the court held that relevant legislative acts and omissions evince a public policy determination by the General Assembly that the type of information sought in discovery here is not subject to a “self-critical analysis privilege” that would protect it from disclosure.
Harris v. One Hope United, Inc., 2015 IL 117200 (March 19, 2015).
Kreisman Law Offices has been handling wrongful-death case, medical malpractice cases, birth injury cases and hospital negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Niles, Melrose Park, Morton Grove, Northlake, North Riverside, Olympia Fields, Palatine, River Grove, Park Forest, Palos Park, Palos Heights, Summit, Streamwood, Stickney, Steger, Worth, Sauk Village, Justice, Inverness, Brookfield, Buffalo Grove, Cicero, Country Club Hills and Crestwood, Ill.
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