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:
- Relevance is analyzed by an appellate court under an abuse of discretion standard: In Klaine, three applications for privilege were submitted by the defendant doctor over a period of years, and one of them was completed well after the date of loss. The defendants claimed that the document, based on dates alone, was irrelevant and therefore, need not be produced. The appellate court thought otherwise, noting that if the lower court reasonably could have found (emphasis added) a document admissible, the appellate court, absent an abuse of discretion, will not disturb that decision. ¶ 13-14 Importantly, the trial court has broad latitude in determining admissibility and relevance of evidence.
- Confidential does not necessarily equal privileged: When the legislature creates “a privilege,” it does so explicitly. Though the Data Collection Act (410 ILCS 517/15(h) (2012)) allowed the IDPH to create a credentials form and included language that the information was confidential, the act did not go so far as to create an automatic privilege for the confidential information collected. Thus, in Klaine, the court found the standard application for privileges was discoverable as “[t]here is no general privilege under Illinois law that provides that information otherwise discoverable is privileged because it is confidential.” ¶ 17 (When required to produce confidential information, counsel should consider the use of a protective order.)
- Creation of affidavits can be time-consuming but the time spent obtaining sufficient facts, may, in the end, save a document from production: In Klaine, affidavits were created to support a claim of privilege under the Illinois Medical Studies Act (735 ILCS 5/8-2101 (2012)) for a list of “case histories” and procedures completed by the physician requesting staff privileges. The affidavits were created by the right people and outlined the right process to support the privilege asserted. However, the documents at issue were referenced in such a way that the appellate court was unable to determine which specific documents were included in the group. The Klaine court stated that “[w]hile the question of whether the Act’s privilege applies is a question of law[…] the question of whether the specific materials[…] are part of an internal quality control is ‘a factual question’ on which the defendant bears the burden.” ¶ 37 The court ordered the documents to be produced with the appropriate HIPAA precautions considered.
- Remember that privilege may apply to one part of a document and not another: In Klaine, the hospital's Medical Staff Quality Oversight Committee, on occasion, used an outside company to conduct “Focused Professional Practice Evaluations” (FFPE) to assist in their peer-review and privileging process. As the information was requested by the committee and used for internal quality control, the defendants claimed privilege under the Medical Studies Act as to documents exchanged with the company, as well as items on the application referencing the company’s report. The appellate court agreed that direct references to the FFPE and its findings should be redacted and a privilege log created. However, they went on to allow discovery of exchanged documents and other information on the application for privileges which related to revocation, or restriction of the doctor’s privileges and the physician’s own “characterization of the reasons therefore.” ¶ 23-24.
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.