The Illinois First District Appellate Court (the "appellate court") recently reversed in part and upheld in part a previous circuit court's decision regarding the privilege and confidentiality of certain peer review documents, highlighting the importance of maintaining a clear separation between a hospital's peer review process independently from other hospital reviews. In Veltri v. Amita Health Alexian Brothers Med. Ctr. the appellate court reversed the circuit court's decision granting of a motion to compel the production of two documents the defendant hospital claimed as privileged under the Illinois' Medical Studies Act, 735 ILCS 5/8-2101, et seq. (the "MSA").1 The appellate court, however, upheld the lower court's decision that one challenged document was not privileged under either the MSA or the Patient Safety and Quality Improvement Act of 2005 (the "PSQIA"). The decision highlights the importance of separating the reporting of the triggering event of the peer review process from reports submitted to a hospital's Patient Safety Organization ("PSO") under the PSQIA.
Documents at Issue and Claims of Privilege
In February 2021, Anne Veltri ("Plaintiff") filed a medical malpractice case against Amita Health Alexian Brothers Medical Center ("Amita") arising out of medical treatment she received in November 2019.2 In response to Plaintiff's written discovery requests, Amita provided a privilege log claiming the "safety event review team ("SERT") notes" ("SERT Notes") containing peer comments substantively analyzing the incident and an Acesis Report containing analysis and conclusions of the Medical Staff Quality Oversight Committee ("MSQOC") were privileged under the MSA.3 Amita also claimed that a third document, a patient safety event report ("Datix Report"), containing general information about the incident was privileged under both the MSA and PSQIA.4 The documents were submitted to the circuit court judge for an in camera inspection.5
In support of its claim of privilege, Amita submitted an affidavit from its Director of Patient Safety and Quality explaining that when an adverse event occurs, hospital staff draft a patient safety event report in a performance software system and the report is subsequently provided to Amita's PSO, which, Amita asserted, "automatically triggers" the peer review process.6 The patient safety event reports are then screened and, if deemed "qualifying," reviewed by Amita's SERT Committee, whose purpose is to continuously improve safety and quality of patient care.7
Plaintiff contended that Amita failed to establish the documents were privileged under the MSA because it did not show that they "were used, requested, or generated in the course of an internal peer review process," and that PSQIA did not apply because Amita did "not assert that the documents were generated strictly for submission to an approved" PSO.8 Plaintiff further alleged the Datix Report was used for internal quality control, was "separate and distinct from any PSO reporting," and that the privilege log did not state it was actually transmitted to a PSO.9
Plaintiff further argued that the Datix Report was not privileged under the MSA because it was created before the "initiation of any peer review process," and that because Amita disclosed the Datix Report to the SERT Committee and the MSQOC, it was submitted outside the PSO and not privileged under the PSQIA.10 Amita countered that the SERT Notes and Acesis Report were clear "on their face" peer review documents.11
Circuit Court Rules Documents Created During Ordinary Course of Business and Not Privileged
The circuit court ruled Amita failed to demonstrate that the three documents at issue – the Datix Report, SERT notes, and Acesis Report – were privileged under either the MSA or the PSQIA because it found Amita had not shown when the committees met or ended and that, therefore, the documents were created "in the ordinary course of business."12
Amita filed a motion to reconsider, arguing that the circuit court failed to follow controlling case law under Ardisana v. Northwest Cmty. Hosp., Inc., 342 Ill. App. 3d 741 (1st Dist. 2003), because Amita asserted it had established through its affidavit that the SERT Notes and Acesis Report were "an integral function of the peer review information gathering and decision-making process."13 Amita further argued the Datix Report was privileged under the MSA because it was "reviewed, used, and relied upon" by the SERT Committee and MSQOC.14 Plaintiff countered Amita's argument, asserting that because the documents were "connected to a standing request for all medical occurrences involving potential issues pertaining to quality of patient care rather than an investigation in a specific incident," the Datix Report was not privileged under the MSA.15 The circuit court denied the motion to reconsider and found Amita in civil contempt for refusing to produce the three documents.16 Amita appealed the circuit court's ruling.
Appellate Court Determines SERT Notes and Acesis Report Privileged on Their Face
The appellate court acknowledged it was Amita's burden to establish the documents were privileged but noted that when an affidavit is unrebutted by an opposing party, a court must accept the facts therein as true.17 The appellate court further emphasized that the "crucial fact" in determining whether the MSA applies is the "timing of the peer review," because documents created before the peer review process begins, and after it ends, are not protected under the MSA.18
The appellate court rejected Plaintiff's argument and the circuit court's finding that the MSA did not apply to the SERT Notes and Acesis Report simply because the documents did not have "firm dates" and concluded that the circuit court's finding that it was unable to determine whether the SERT notes and Acesis Report were created before or during the peer review process was "manifestly erroneous."19 Relying on the holding in Ardisana, the appellate court determined that the SERT Notes and Acesis Report were on their face "squarely" in the "category of documents protected by the MSA" because they were an "integral function in the peer review information-gathering and decision-making process" since they were created "during, and pursuant to" that ongoing process.20 The appellate court further reasoned that it was required to accept as true the description of the peer review process in Amita's affidavit regarding the creation of the SERT Notes and Acesis Report and contents of those documents because Plaintiff failed to contest those facts.21 As such, the appellate court concluded the SERT Notes and Acesis Report were created during, and pursuant to, an ongoing peer-review investigation and, thus, privileged under the MSA.
Appellate Court Rules Datix Report Discoverable Because it was Created Before the Peer Review Process Began and Submitted Outside the PSO
As for the Datix Report, the appellate court agreed with the circuit court that it was not privileged under either the MSA or the PSQIA.22 The appellate court reasoned that because the Datix Report was created pursuant to a general Amita protocol, and because investigations into the care at issue by the SERT Committee and the MSQOC began after their designee (the patient safety specialist) reviewed the Datix Report, it was created "before the specific investigatory processes began."23 As a result, it was not protected from disclosure under the MSA.24 In relying on this rationale, the appellate court rejected Amita's argument that the Datix Report revealed the deliberative process of the SERT Committee and the MSQOC, pointing out that, ironically, the "affidavit itself reveals more information" on the committees' deliberative processes than the Datix Report which contained only "basic details of the incident."25
In holding that the PSQIA similarly did not protect the Datix Report from disclosure, the appellate court relied on an exception to the PSQIA further espoused upon in the Daley v. Tereul case – which provides that if a document is "created for any purpose other than for reporting to the PSO, it is not privileged" because it is no longer patient safety work product.26 The appellate court explained that the affidavit failed to establish that the Datix Report was created solely for reporting to Amita's PSO and instead established it was also created and analyzed for potential referral to the SERT Committee and MSQOC.27 As a result, the appellate court affirmed the circuit court's order compelling Amita to produce the Datix Report on remand.
Lessons Learned
When a hospital wants to avail itself of the protections afforded under the MSA and PSQIA in relation to its quality and patient safety policies and committees, the privileges should be considered separately. Documents submitted to a hospital's designated PSO should not also be relied on to trigger or initiate the peer review process under the MSA. Rather, a separate reporting process for patient safety events that are potential triggers of the peer review process should be established and the reporting process should collect only "basic details of the incident" because the report at issue may not be deemed privileged under the MSA if challenged in court if it is considered created before the initiation of the peer review process. Additionally, from an operational perspective, the circuit court's original ruling taken together with the appellate court's opinion also highlights the importance of hospitals maintaining accurate and timely minutes and records of all peer review actions and committee meetings in order to create a clear record supporting any claims of peer review privilege.
In litigation, when faced with a decision of what documents to attempt to claim as privileged under the MSA, hospitals should consider not taking the customary blanket approach of asserting the MSA privilege over all such documents. Rather, hospitals should scrutinize their documents at issue at the beginning of written discovery and determine whether they were created before or after the initiation of the peer review privilege. For documents that were created before the triggering of the peer review process that contain only benign "basic details of the incident," hospitals should consider not claiming those as privileged under the MSA because proving the MSA privilege over such documents is exceedingly difficult, time-consuming, and costly. Alternatively, hospitals should consider producing benign triggering documents after the circuit court has ruled they are discoverable instead of incurring the costs and delays associated with appealing such a ruling that is largely supported by the case law.
Footnotes
1. Veltri v. Amita Health Alexian Brothers Med. Ctr, 2023 IL App (1st) 230073-U
2. Id. at ¶ 4.
3. Id. at ¶¶ 5, 37
4. Id. at ¶¶ 5, 37.
5. Id. at ¶ 15.
6. Id. at ¶ 7.
7. Id. at ¶¶ 8-9.
8. Id. at ¶ 6.
9. Id.
10. Id. at ¶¶ 14, 16.
11. Id. at ¶ 17.
12. Id. at ¶ 18.
13. Id. at ¶ 20, citing Ardisana v. Northwest Cmty. Hosp., Inc., 342 Ill. App. 3d 741 (1st Dist. 2003).
14. Id.
15. Id. at 21.
16. Id. at 22.
17. Id.
18. Id. at 32.
19. Id. at ¶ 40.
20. Id. at ¶¶ 39-40, citing Ardisana, 342 Ill. App. 3d at 748.
21. Id. at ¶ 40.
22. Id. at ¶ 39.
23. Id. at ¶ 42.
24. Id., citing Nielson v. Swedish Am. Hosp., 2017 IL App (2d) 160742, ¶¶ 69-74.
25. Id. at ¶ 43.
26. Id. at ¶ 46, citing Daley v. Teruel, 2018 IL App (1st) 170891, ¶ 41.
27. Id. at ¶ 47-48.
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