Of Course That Document is Privileged…Isn’t it? A New Case Outlines Reminders for Successful Claims of Privilege

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September 3, 2014
Carmel Cosgrave and Betsy Ballek
SmithAmundsen Health Care Alert

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Anyone involved in litigation knows that a huge volume of documents are requested and, in some cases, produced during discovery. Over time, some of our answers to discovery may begin to feel “routine.” A recent fifth district case involving allegations of medical negligence against a physician and negligent credentialing against a hospital serves as a reminder that discovery responses always require careful consideration.

In Klaine v. Southern Illinois Hospital Services, 2014 IL App (5th) 130356, the appellate court held that a number of documents related to physician credentialing should be produced, despite the hospital's claim of various privileges. The type of documents ordered to be produced might surprise you. Before reading the case, it is important to keep in mind that the appellate issue as to the hospital was only regarding the narrow issue of negligent credentialing. The case should not be read as eviscerating the law of privilege in Illinois. Rather, the case should serve as a cautionary tale about understanding the privilege you want to assert, claiming the right privilege, and referencing sufficient detailed facts to support your claim.

The Klaine court ruled on a number of different documents and discussed various laws which create privilege. We have highlighted a few issues below:

Requests for credentials files are becoming relatively routine in medical malpractice cases, whether or not there are allegations of negligent credentialing. Given that a plaintiff’s complaint can easily be amended to add a negligent credentialing count, the hospital and its counsel need to work carefully together to be sure that an adequate privilege log is created and that the privileges are properly asserted.