Illinois Rejects Self-Critical Analysis Privilege—Will Other States Follow? Reply

In a long-awaited ruling, the Illinois Supreme Court refused to recognize a common law self-critical analysis privilege and ordered production of a company’s quality-review report generated in response to an infant’s death.  Although arguably a narrow ruling, this decision will likely influence other state courts faced with a similar issue—do public-policy considerations warrant recognition of a common law self-critical analysis privilege.  Harris v. One Hope United, Inc., 2015 IL 117200 (Ill. Mar. 19, 2015).  You may read the decision here.

Illinois Supreme Court

Illinois Supreme Court

The Case

An infant died while in her mother’s care and in One Hope United’s family services program. The public guardian, acting as the infant’s estate administrator, filed a wrongful death suit against the mother and One Hope. Discovery revealed that One Hope investigated the death and prepared a post-death “Priority Review” report that evaluated its services.

One Hope refused to produce the Priority Review report on grounds that the self-critical analysis privilege protected its disclosure. The trial court refused to recognize the privilege, held One Hope in “friendly contempt,” and set the stage for appeal. In a decision profiled in this post, the appellate court also refused to adopt the privilege.

Pertinent Issues

As noted in my prior post, a threshold issue was whether the Illinois evidence rules permitted courts to adopt new common-law evidentiary privileges and modify existing privileges, or whether that role fell exclusively within the legislature’s domain.  And if the evidence rules permitted common-law privileges development, did public policy considerations compel adoption of a self-critical-analysis privilege.

The Ruling

The Supreme Court assumed, without directly addressing, that it could adopt new common-law privileges, but only in “rare instances.”  Those instances arise where the privilege proponent sufficiently proves each of four elements: (1) the communications originated in a confidence that they would not be disclosed; (2) confidentiality is essential to the maintenance of the parties’ relationship; (3) the relation at issue is one which “in the opinion of the community ought to be sedulously fostered”; and (4) the injury to the relation produced by disclosure outweighs the benefit of the truth-finding process and “the correct disposal of litigation.”

As to the 4th element, which focuses on public-policy considerations, the Supreme Court noted that adopting new privileges “involves a balancing of public policies which should be left to the legislature” and that the judiciary’s function was not “to promote policies aimed at broader social goals.”

So, the court looked for any legislative evidence to inform whether it should adopt a self-critical analysis privilege in this instance.  Reviewing the Child Death Review Team Act, which governs governmental panels reviewing minors’ deaths, and the Medical Studies Act, which creates a medial peer-review privilege, the court determined that these acts did not favor adoption of a self-critical analysis privilege.  The court reasoned that the Illinois legislature could have extended the peer-review privilege to entities such as One Hope, but did not; and the Child Death Review Team Act arguably encouraged rather than discouraged disclosure.

In sum, the court refused to recognize a common law self-critical analysis privilege because it is a “matter more appropriately a subject for legislative action.”  The court avoided “judicial infringement upon what is principally a policymaking decision for the legislature,” and reviewed whether public-policy expressions in existing legislation “warrant[ed] a ‘rare’ exercise of judicial authority” in recognizing new privileges.  Finding no legislative support, the court rejected the privilege.

PoP Analysis

The court focused on existing legislation relevant to One Hope’s activities and concluded that “the type of information sought in discovery here is not subject to a self-critical analysis privilege.” This limitation indicates that Illinois courts may re-consider a self-critical analysis privilege in other contexts; however, the Harris ruling tells us that adoption of new common law privileges is “rare” and existing legislation must clearly point toward the privilege’s adoption in a particular set of circumstances.

So, how will other states react to Harris when determining whether to adopt a self-critical analysis privilege? The self-critical analysis privilege, a product of the medical peer-review privilege first adopted in Bredice v. Doctors Hosp., Inc. 50 FRD 249 (D.D.C. 1970), encourages entities to undertake candid and unrestrained self-examinations for quality-improvement purposes by promising protection from discovery.  The theory is that entities will not be forthcoming and candid in their self-analyses without confidentiality assurances, and the lack of candidness will thwart improvement.

The Harris court effectively declined to assess whether Illinois common law should encourage self-examinations by adopting the privilege, instead scanning statutes to discern whether the legislature had already made this public-policy determination.  Courts in other states, however, may not feel constrained by existing legislation, particularly when legislatively approved state evidence rules, like FRE 501, permit common-law development of evidentiary privileges.

Illinois interprets this development opportunity narrowly, but other states may not.

My thanks to Jeff Bergman of the Chicago litigation firm of Mandell Menkes for informing me of the court’s release of this opinion.

Peer-Review Privilege Not Preempted by Regulations Governing Institutional Review Boards Reply

In a case of first impression, an Alabama federal court ruled that federal statutes and regulations governing Institutional Review Boards do not preempt Alabama’s peer-review privilege. The court also ruled, in another first-impression issue IRB, that a University of Alabama-Birmingham IRB fell within the scope of the peer-review privilege. Looney v. Moore, 2014 WL 1877596 (N.D. Ala. May 12, 2014). You may review the decision here.

Institutional Review Boards

An Institutional Review Board is a committee established by a medical entity that approves, oversees, and reviews biomedical and behavioral research involving humans. IRBs essentially serve as ethical review boards overseeing clinical trials regarding, for example, new pharmaceuticals or medical devices. The HHS Secretary mandates that entities conducting biomedical or behavioral health studies implement an IRB. See 42 USC § 289.

IRB and Peer-Review Privilege

It may not appear that IRBs fall within the scope of a traditional peer-review privilege because it does not provide quality-assurance reviews of adverse medical-treatment events. Some courts have found that state peer-review privileges do not cover IRBs. See PJ v. Utah, 247 FRD 664 (D. Utah 2007); Esdale v. Am. Cmty. Mut. Ins. Co., 1995 WL 263479 (N.D. Ill. May 3, 1995); Konrady v. Oesterling, 149 FRD 592 (D. Minn. 1999).

Other courts have found the opposite–that state peer-review privileges cover IRBs. See, e.g., KD v. US, 715 F. Supp. 2d 587 (D. Del. 2010).

Alabama Peer-Review Privilege Covers IRBs

The Alabama federal court reviewed Alabama’s peer-review privilege, found at Alabama Code 22-21-8. The privilege covers confidential materials prepared by a “hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency.”

At issue in the Looney case was whether UAB’s IRB failed to obtain patient consent to a clinical research trial performed on premature infants with low birth weights. The court determined that UAB’s IRB qualified as a “quality assurance agency,” and, as such, the peer-review privilege covered the requested IRB documents.

No Preemption

The plaintiffs, however, argued that interpretation of the peer-review privilege’s scope was irrelevant because federal statutes and regulations governing IRBs preempted the privilege’s application. See 45 CFR Part 46.  In a matter of first impression in the 11th Circuit, the court reviewed the applicable federal statutes and regulations, and found no intent to preempt state peer-review privileges. Noting that “congressional and regulatory silence usually defeats a claim of preemption,” the court ruled that federal statutes and regulations do not preempt state peer-review privileges.

Excellent Article on (lack of) Federal Medical Peer Review Privilege 1

All 50 states have adopted a statutory evidentiary privilege that protects from compelled disclosure materials generated as part of the medical peer review process.  But federal law applies in federal court cases premised on federal-question jurisdiction, and a significant question arises whether healthcare providers receive similar peer-review protections under federal law.

Indoctor peer review his excellent article, Odd Man Out? The Medical Peer Review Privilege in Federal Litigation, The Federal Lawyer, at 52 (Dec. 2013), Major Charles G. Kels reviews the current state of federal peer-review privilege law.  Major Kels notes that federal statutory protections provide little protection and that three federal circuit courts of appeals and a majority of federal district courts refuse to recognize a federal common law peer-review privilege.  And an alternative privilege, the self-critical analysis privilege, produces an “inherently uncertain venture.”

Major Kels provides practical tips for navigating these undefined privilege waters and advocates for congressional action or the adoption of a federal common law privilege.  Major Kels’ article is comprehensive and commended to in-house and outside counsel representing health care providers.

You may access the article here.  My thanks to Major Charles Kels and The Federal Lawyer for permission to repost the article in this blog.

Medical Peer Review Privilege Protects Complaints Made to Physician Society’s Grievance Committee Reply

A Texas appellate court upheld a physician’s peer review privilege claim by finding that a physician society’s grievance committee fell within Texas’ statutory definition of a “medical peer review committee.”  The court’s opinion contradicts decisions in other states by broadly interpreting the state’s peer review statute.  In re Higby, 2013 WL 4080716 (Tex. Ct. App. Aug. 13, 2013).

Higby presentsInterracial Medical Business Team Meeting in Boardroom an interesting fact pattern arising from a defamation action between two opposing medical expert witnesses.  Dr. Kenneth Higby is a maternal-fetal medicine specialist and Dr. Halbridge is an OBGYN.  Both are fellows in the American College of Obstetrics and Gynecology (ACOG).  In an underlying medical malpractice case involving a neurological injury to an infant, Higby provided an expert opinion for the defense and Halbridge provided an expert opinion for the plaintiff.

After the case settled, Higby filed a complaint with ACOG’s Grievance Committee claiming that Halbridge made false statements in his expert reports.  Halbridge responded with a defamation action against Higby and sought to discover Higby’s statements to the Grievance Committee.  The question before the court was whether the ACOG—a professional society—was a “medical peer review committee.”  If so, then the peer review privilege protects from discovery Higby’s statements to the committee.

Tex. Health & Safety Code Ann. § 161.0315(a) provides that “medical peer review” includes evaluation of “professional conduct.”  And § 151.002(a) states that a “medical peer review committee” includes a committee of a “health care entity” authorized to evaluate the quality of health care services, physicians’ “professional conduct,” and “the competence of physicians.”  This statute also defines “health care entity” to include a “professional society or association of physicians.”

The key here is that Higby’s statements did not concern the quality of Halbridge’s provision of medical care to a patient, but rather the quality of his expert opinions.  The court determined that Texas’s peer review statute covers statements made to committees that evaluate a physician’s competency and that Higby “essentially challenges Halbridge’s competence to render an expert opinion.”  Because the ACOG Grievance Committee evaluates professional conduct, it was a medical peer review committee under the statute and the peer review privilege protected Higby’s statements to the committee from discovery.

PoP Analysis.  Courts tend to take a narrow view of medical peer review privilege.  See this post, and this one, discussing example cases.  But the Higby decision represents a broad interpretation for two reasons: first, the privilege covered a professional society committee rather than simply a hospital peer review committee; and, second, it covered statements made about a physician’s expert opinions developed for litigation rather than his provision of heath care services.  While it is true that each state must interpret its own medical peer review statute, the Higby decision lends some support to those seeking a broad interpretation.

No Committee of One: Court Rejects Privilege for Peer Review Conducted by Lone Physician 1

A Connecticut court rejected a peer-review privilege claim because a solo physician conducted the peer review rather than a “medical review committee.”  And this ruling came despite the fact that the hospital’s bylaws defined “medical review committee” to include a single physician.  Cox v. Reyes–D’Arcy, 2013 WL 2451303 (Conn. Super. Ct. May 15, 2013).

The Cox ruling represents an extremely narrow and strict reading of Connecticut’s peer review statute.  That statute protects as privileged the proceedings of a “medical review committee conducting a peer review.”  Conn. Gen. Stat. §19a–17b(ddoctorwithpatientfolder).  And the statute defines “medical review committee” as including “a committee of any health care institution established pursuant to written bylaws.”  Id.

Following allegations that a pathologist at a New London hospital failed to answer an urgent call to read a blood smear slide, the hospital’s Pathology Department Chair conducted a peer review investigation.  The hospital’s bylaws provided that its medical review committee included a department chair acting in a peer review function.  In subsequent litigation, the pathologist sought in discovery the peer review findings.  The hospital objected citing Connecticut’ peer review privilege.

The court ruled that, as with any privilege claim, it must narrowly construe the peer review privilege statute. And in doing so, it defined the statute’s phrase “medical review committee” as a “group of people delegated to perform a particular task.”  And because the Department Chair conducted the peer review solo, rather than as part of a “group,” the court held that no “medical review committee” existed to which the privilege applied.

This narrow interpretation came even though the statute defines a “medical review committee” as one established pursuant to hospital bylaws and the hospital here defined the committee as including a lone department chair.  To this, the court found that the bylaws “overreach the privilege.”

PoP Analysis.  Evidentiary privileges run counter to the maxim, first coined in 1742 by Lord Chancellor Hardwicke, that the public has a right to “every man’s evidence.”  Thus, the Cox decision presents another example of courts narrowly construing evidentiary privileges.  Knowing this tendency, the practical lesson here is that health care providers and institutions that engage in peer review proceedings must ensure that the bodies created to conduct the proceedings match precisely the peer-review statute’s wording.  Perhaps it is time for a triage of your state’s peer review statute and your healthcare client’s peer review procedures?

Physician’s Post-Op Comments Not Protected by Peer-Review Privilege 1

An Illinois Appellate Court recently ruled that a physician’s post-operation comments to the Medical Affairs Diretor were not protected by the medical peer-review privilege.  The Court issued this ruling despite the fact that the physician making the comments later participated in formal peer-review committee meetings.  See Tunca v. Painter, 980 N.E.2d 1132 (Ill. App. Ct. 2012).

The peer-review privilege in Tunca arose in an atypical case-setting.   Plaintiff Dr. Tunca, a surgeon specializing in gynecological oncology, cut a patient’s femoral artery during surgerMedical teamy to remove an ovarian tumor.  Defendant Dr. Painter, a vascular surgeon, later repaired the cut by performing a femoral-femoral bypass.  After the surgery, Dr. Painter informed the Medical Affairs Director that Dr. Tunca had negligently and inadvertently severed the patient’s artery during the first operation.  Dr. Painter later made similar comments to other medical staff.  These comments were made in June 2006, and the hospital’s peer-review committee reviewed the incident in February 2007.

Illinois’ peer-review statute provides that “all information, interviews, reports, statements,” etc. are “privileged and strictly confidential.”  735 Ill. Comp. Stat. 5/8-2101.  Dr. Tunca sued Dr. Painter alleging that Painter’s comments were slanderous and violated Illinois’ peer-review statute.  The appellate court, however, held that Dr. Painter’s post-operation comments were not protected by the peer-review statute.  The court narrowly interpreted the statute to protect from compelled disclosure only those statements made while a committee is actually engaged in the peer-review process.  Statements made before the peer-review process begins or after it ends fall outside the peer-review privilege.

The court reiterated that information obtained after a medical incident but before the peer-review process formally begins is not privileged; nor does this information transform into privileged material when it is later reported to a peer-review committee.  Even statements made in anticipation of a peer-review process are not covered.  Simply put, the peer-review privilege does not protect letters, emails, declarations, and statements made before the peer-review process formally begins.

PoP Analysis.  Even though the Tunca case arose in a defamation setting, it contains lessons for in-house and outside counsel representing medical providers in malpractice settings.  This case follows so many other decisions that narrowly interpret privilege rules and statutes.  Physicians routinely discuss post-incident information for purposes of learning what occurred and preventing repeat incidents, which is the same goal as the peer-review process.  Yet, these statements are not privileged unless made after formal institution of medical peer-review proceedings.  Counsel should endeavor to train physicians and medical staff regarding how to handle post-incident comments and discussions.  While not all states follow Illinois’ strict statutory construction, the Tunca case should serve as caution in all peer-review situations.

Courts Divided–Application of Medical Peer Review Privilege in FTCA Cases Reply

Medical malpractice cases brought in federal court under the Federal Tort Claims Act (FTCA) often raise issues regarding discovery of information generated in the context of the medical peer review process.  While all 50 states recognize a medical peer review privilege, there is no federal common law peer review privilege.

But medical malpractice cases brought against the federal government under the FTCA pose unique problems.  Because the FTCA is a basis for federal question jurisdiction, claims brought under this act in federal court will be subject to federal law on evidentiary privileges.  See Menses v. U.S. Postal Serv., 942 F. Supp. 1320 (D. Nev. 1996).  And following this conflict-of-laws rule, peer review information sought in a medical malpractice case brought under the FTCA would generally find no privilege protection under federal law.  Some federal courts, however, stray from this general rule and apply state-law privileges in certain situations under the doctrine of comity.

The Illinois federal court’s decision in Sevilla v. United States, 852 F. Supp.2d 1057 (N.D. Ill. 2012), provides an informative illustration.  In this medical malpractice case against a physician employed by the United States, the federal government asserted the peer review privilege found in Illinois’ Medical Studies Act to withhold from discovery information generated as part of the peer review process.  The Court recognized that the majority of federal courts do not recognize a medical peer review privilege under the FTCA, but ultimately ruled that the government should be able to use Illinois’s peer review privilege in this medical malpractice case.  The Court held that the Supreme Court’s rejection of a federal peer review privilege in Univ. of Pennsylvania v. EEOC, 493 U.S. 182 (1990), was limited to an academic peer review privilege.  Instead, the Court followed the teaching of Jaffee v. Redmond, 518 U.S. 1 (1996), regarding criteria for recognizing new privileges, and found that recognizing a peer review privilege in the medical malpractice FTCA context met that criteria.

The Sevilla court limited its holding to application of the medical peer review privilege in medical malpractice cases filed under the FTCA, but the Court could have been clearer that it was applying the Illinois medical peer review as a matter of comity rather than adopting a federal common law peer review privilege.  The Court failed to address that many courts, following Jaffee, have ruled that comity may not serve as a basis to recognize a state-law privilege in federal-question cases. See, e.g., Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D.  Cal. 1998).  But the Court’s decision shows that federal courts are divided on the issue, and whether the peer review privilege applies in FTCA medical malpractice cases depends on the federal jurisdiction in which the case is filed.