Medical Studies Act is Not Available Where No Peer Review Committee Meeting Was Held; Tunca v. Painter

In June 2006, Josh Tunca was a surgeon at Northwest Community Hospital specializing in gynecologic oncology. While in surgery, Dr. Tunca removed an ovarian tumor. Later, the patient lost the pulse in her left leg due to a clog in her femoral artery.

Dr. Thomas Painter, a vascular surgeon, was called in to perform a femoral-bypass surgery to restore blood flow. According to the record, Dr. Painter approached Dr. John McGillan, the hospital’s vice president and medical affairs director, telling him that Dr. Tunca had cut the patient’s iliac artery.

Dr. Painter also told other doctors that Dr. Tunca had negligently severed the patient’s artery. None of these doctors were on a peer review committee for the hospital.

Dr. Tunca filed a lawsuit, which was amended three times, against Dr. Painter, alleging that his comments violated the confidentiality provisions of the Medical Studies Act. It was alleged that these statements injured Dr. Tunca’s professional reputation and cost him patients from referral sources, which led to a substantial loss of income.

Dr. Tunca also initially alleged that Dr. Painter’s comments were slander per se, but later changed that allegation to one of slander per quod. At first, the trial court dismissed the slander claims. But on appeal, that order was found to have sufficiently alleged slander per quod against Dr, Painter, but the other appealed claims were forfeited. Per quod defamation requires a plaintiff to prove actual and monetary damages. In a case where the defamation is per se, the proof of special damages are presumed. Per quod defamation alleges facts that make the claim not defamatory on its face and requires proof that such statements were in fact defamatory. In per se claims, the statements made are defamatory of their face. As an extreme example, the person was a “felon, convicted of murder” when the statement was false.

During the appeal, Dr. Painter filed a motion for summary judgment on the remaining count — the alleged violation of the Medical Studies Act. Dr. Painter argued that there was no private right of action because Dr. Tunca was not a member of the class of persons the statute was enacted to benefit.

In October 2010, the trial court granted summary judgment in favor of Dr. Painter, and Dr. Tunca filed a motion to reconsider, which was denied. Dr. Tunca appealed.

On appeal, he argued that the privilege under the Medical Studies Act did not apply to Dr. Painter’s statements, and therefore summary judgment was wrong. Citing the relevant sessions of the Medical Studies Act and Webb v. Mount Sinai Hospital and Medical Center of Chicago, Inc. and Roach v.

Springfield Clinic, the court discussed the fact that statements obtained do not protect against the disclosure of information generated before a peer review process begins or after it ends. Because Dr. Tunca admitted that no peer review committee action had been taken by the time of Dr. Painter’s statements, the court concluded that the confidentiality provisions of the Medical Studies Act did not apply.

The court concluded that even assuming that somehow the statements were made under the Act, there is no private right of action for a peer-reviewed physician, and such physicians are not part of the class of people that the Medical Studies Act is intended to protect.

Josh Tunca v. Thomas Painter, 2012 IL App. (1st) 110930.
Kreisman Law Offices has been handling medical negligence and birth injury cases for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Clarendon Hills, Villa Park, Northlake, Franklin Park, Harwood Heights, Chicago (Jefferson Park), Chicago (Roscoe Village), Forest Park, Oak Forest, Park Forest, Evergreen Park, Itasca, Rolling Meadows and Bolingbrook, Ill.

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