Privileged or Discoverable? Illinois Courts are Dismantling Traditionally Recognized Evidentiary Privileges in the Health Care Arena

Illinois courts are dismantling evidentiary privileges traditionally recognized in the context of health care. Recently, the Illinois Supreme Court held that section 15(h) of the Health Care Professional Credentials Data Collection Act, 410 ILCS 5/17-1, et seq. (2012) does not create a privilege.[1] In order to see and treat patients at a health care facility, a physician must first apply for and be granted staff privileges. When a physician seeks staff privileges at a hospital, the physician must submit to a rigorous application process. A committee then reviews the physician’s completed application. Ultimately, the Board of Trustees has the final say as to whether the physician is granted staff privileges. The Credentials Act standardizes and regulates this data to ensure that health facilities correctly vet each health care professional’s qualifications.

However, the Illinois Supreme Court recently held that Section 15(h) of the Act does not create a privilege to prevent the discovery of these applications.[2] Section 15(h) provides, “Any credentials data collected or obtained by the health care entity, health care plan, or hospital shall be confidential, as provided by law, and otherwise may not be redisclosed without written consent of the health care professional…”.[3] The court highlighted the fact that confidentiality and discoverability are distinct concepts.[4] The court also stated that recognizing privileges is strongly disfavored, and if the legislature intended for a privilege to apply to these applications, it would have explicitly stated so within the Act.[5] Thus, the Illinois Supreme Court changed the landscape for the use of these applications in litigation.

Second, the Illinois Appellate Court of the Second District held that quality control reports completed by health care professionals would not be protected under the Medical Studies Act, 735 ILCS 5/8-2101, et seq. (2012).[6] The Medical Studies Act seeks to protect health care professionals that are engaged in  medical peer-review studies from having this information used against them in medical malpractice litigation.[7]

However, in Neilson, three nurses prepared quality control reports relating to a woman’s unsuccessful surgery in order for the quality and safety committees to review and determine how to improve future patient care.[8] Although the Medical Studies Act traditionally applies a privilege to these documents under Section 8-2101, the Second District Appellate Court held that the Act does not protect all information used for internal quality purposes.[9] The court determined that the reports submitted by the nurses to the committee were merely incident reports by focusing on the fact that the reports did not commence an investigation and were used for dual purposes with risk management.[10] Thus, Illinois courts are broadening the scope of discoverable information in the health care arena.

[1] Klaine v. S. Ill. Hosp. Serv., 2016 IL 118217,  para. 18.

[2] Id.

[3] Health care Professional Credentials Data Collection Act, 410 ILCS 517/15(h) (2012).

[4] Klaine, 2016 IL 118217, para. 18.

[5] Id. (NOTE: Decision not yet final until after the expiration of the 21 day petition for rehearing).

[6] Neilson v. Swedish American Hosp., 2017 IL App (2d) 160743, para. 75.

[7] Ghazal Sharifi, Comment: Is the Door Open or Closed? Evaluating the Future of the Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561, 563-564 (2009).

[8] Id. para. 6.

[9] Id. para. 35.

[10] Id. para. 46.