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Spring 2005 

LEGAL ALERTS

 

Webb v. Mt. Sinai – The Medical Studies Act
By Kathryn K. Loft

The Medical Studies Act strictly defines the parameters by which a hospital may investigate an incident in order to keep any resulting documentation within the protection of the privilege.

In Webb v. Mt. Sinai the court clarified application of the Medical Studies Act.  In this case the court found that certain documents, prepared by risk management after investigation of a patient death, were not protected by the Act and therefore were not protected from disclosure by the Act.

The court held that the hospital failed to show documents prepared by risk management were part of the Risk Management Committee's peer review process because:

 1)  The documents included language about issues of potential liability, thereby removing the documents from protection under the Act as the documents were not prepared only for peer review and/or quality control; and,

 2)  there was no evidence as to when the Risk Management Committee’s review began, suggesting that the investigation and document preparation might have occurred before and/or after the peer review process.

In this case, plaintiff was admitted to Mt. Sinai on July 28, 1998, to rule out hepatitis and for treatment of dehydration.  Plaintiff died the next day, on July 29th.  The documents at issue are an Occurrence Summary, authored by the risk manager and four memoranda, summarizing interviews with physicians, also authored by the risk manager.  Two of the memos were dated July 29, 1998, and two were dated August 4, 1998. 

After suit was filed, plaintiff requested during discovery certain documents from the hospital.  The hospital responded that it had responsive documents but objected that they were privileged under the Act.  When plaintiff asked the court to rule on the hospital's objections, the hospital responded with an affidavit by the (now former) risk manager. 

The first affidavit described the risk manager’s duties as responsibility for loss prevention and managing claims.  The affidavit also outlined her risk management duties, including improvement of patient care and safety through risk management techniques. The affidavit stated that the documents prepared as part of the investigation process in this case were presented solely to the Risk Management Committee and utilized solely for peer review, patient safety and quality improvement.

Plaintiff objected and the court ordered Mt. Sinai to file a supplemental affidavit and to provide the documents for in camera review (reviewed by the court but without access by plaintiff or other parties).

The second affidavit stated that the Chairman of the Risk Management Committee on July 29, 1998, directed the risk manager to begin an investigation on behalf of the committee.  This affidavit further stated that the memoranda prepared during the investigation were not distributed to the risk management committee.

After reviewing the documents in camera the court found these documents were not only for peer review purposes, but that each document clearly anticipated litigation and was intended, at least in part, to weigh potential liability.  Since they were not generated specifically and only for peer review, the documents were not protected by the privilege. 

In order to address the court’s findings, the hospital was allowed to file a third affidavit to attempt to clarify the issues.  In this affidavit, the risk manager stated that the only functions of the Risk Management Committee were peer review and patient safety and that the committee didn’t evaluate liability issues.  The affidavit included the apparently erroneous statement that the chairman of the committee instructed the risk manager on July 28 to initiate investigation after being notified of the patient’s death.  The patient didn’t die until the next day, on July 29. 

The court found significant discrepancies in the evidence.  The affidavits were internally inconsistent.  For example, in the first affidavit, the risk manager explained that the investigation memoranda were given only to the committee; and, in the second affidavit, she stated that the documents were not given to the committee.  The third affidavit stated that the risk manager began the investigation on July 28, the day before the patient’s death.    The court also found discrepancies between the memoranda and affidavits.  The in camera document inspection revealed that each memorandum included a statement that it was prepared, in part, to identify liability issues, while at least one of the affidavits stated that the Risk Management Committee’s purpose was not to determine liability issues.

The burden to prove that documents fall within the Act is on the party claiming the privilege.  The court identified two main reasons for its determination that the documents were not protected by the Act.  The Act does not protect documents created to evaluate potential legal liability.   Since the documents were not prepared solely for peer review purposes, the court determined that they were not protected.  The Act also does not protect documents generated before the peer-review process begins or after it ends.  Therefore, since the hospital could not clearly state when the Risk Management Committee’s review occurred, the court determined that the documents were likely prepared outside of the peer review process and were not protected by the Act.  Once the court realized that the affidavits were inconsistent with each other and inconsistent with the documents themselves, it had no trouble finding that the hospital had not met its burden of proof in establishing the privilege.

What can hospitals do to improve the chance documents created during risk management investigation will be protected from disclosure under the Medical Studies Act?

1)  Before the investigation begins for a specific occurrence, the Risk Management Committee must meet and direct the risk manager to conduct an investigation;

2)  Timing of the investigation must be designated; the Act does not protect against disclosure of information generated before a peer-review process begins or after it ends; the committee must be engaged in the peer-review process before the privilege is applicable; 

3)  Investigation must be designated as being solely for the purpose of peer review and quality control. Investigation documents must not include any reference to potential liability, loss prevention, managing claims or legal opinions.  Documents created in the ordinary course of hospital business for purposes of rendering legal opinions or to weigh potential liability are not privileged (even if later used by a risk management committee in the peer-review process);

4)  Everything the risk manager does as part of the investigation must be given only to the risk management committee; or,

5)  Hospital attorney performs investigation so the documents are protected by attorney/client or work/product privilege.

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Overview of the Illinois Hospital Report Card Act
By David J. Loughnane
& Jennifer M. Tomsak

Under the Illinois Hospital Report Card Act (hereinafter the Act) which went into effect on January 1, 2004 , Illinois is the first state to require hospitals to tell consumers how well staffed they are.  This state legislation addresses nursing staff issues, along with whistleblower protections. The purposes of the Act were to empower consumers by making quality information about a hospital readily available so that the consumers could better decide where to receive the hospital care they need. 

The Act grants consumers access to information within the context of nursing coverage, which includes RNs, LPNs and other nursing personnel assigned to each unit.  The information includes staffing schedules, nurse-patient assignment rosters, hospital methodologies to determine and adjust nurse staffing levels, nurse orientation and training data, information on certain hospital infections that contribute to mortality rates, mortality data, and an annual progress report to the General Assembly. 

Any member of the public may request the information at the time of treatment or later.  The Act mandates that a hospital must keep the information for at least five years.  If the hospital fails to respond to a request in a reasonable fashion, the person making the request can file a complaint with the Illinois Department of Public Health. 

While the Act states that the information disclosed under the Act may not be used to establish a standard of care in a private civil action, the reality is that the Act does not prevent anyone (i.e., an expert for a malpractice plaintiff) from using the information to formulate his opinions.   Thus, a hospital should expect that all of the disclosed information may be used in some capacity in a private civil action.

The Act’s whistleblower protections are very broad.  Any hospital employee acting in good faith can report any action “that violates this Act or any other law or rule or that the employee reasonably believes poses a risk to the health, safety or welfare of a patient or the public.”  Generally, the potential whistleblower must first make a report the perceived problem to a hospital manager and give the hospital a reasonable opportunity to address the problem.  Thus, in order to both correct the underlying problem and curtail a potential whistleblower action, a hospital must take steps to educate and train its managers to appropriately and timely respond to reports of problems.  

During the first year of its enactment, there were no legal cases which interpreted the Act’s provisions.  The Act did receive much media attention, however, and hospitals should expect that both patients and plaintiffs’ attorneys will become more cognizant of the hospitals’ duties under the Act.

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Appellate court decision on the Petrillo rule
By Lynn M. Reid

The Illinois Appellate Court, First District, recently issued an opinion interpreting the Petrillo rule. Under Petrillo, defendants and defense counsel are prohibited from engaging in ex parte communications with a plaintiff’s treating physicians. In the decision in Moss v. Amira, the appellate court reversed a plaintiff's verdict in an auto case and remanded for a new trial based on defense counsel's Petrillo violation. Defense counsel in Moss had taken the discovery deposition of one of plaintiff's treating physicians and then disclosed the doctor as an expert, based upon the doctor's discovery deposition.  Defense counsel then noticed the evidence deposition of the doctor. Counsel sent the doctor a letter setting forth the date of the deposition and enclosing a copy of the doctor's discovery deposition and a copy of the defendant’s Rule 213(f) interrogatory answers. Defense counsel did not talk with the doctor. The court considered the transmittal of the Rule 213 interrogatory answers to be more than a de minimus communication and improper under Petrillo, due to the inclusion of opinions of other witnesses and also presumed opinions of the doctor outside the testimony of his discovery deposition. Since the doctor's testimony was important to the outcome of the case, the court remanded for a new trial, during which the doctor's testimony would be barred. In a concurring opinion, one of the appellate justices commented that the protection of private health information under HIPAA should also apply to communications with treating physicians. 

For more information, click here for the opinion in Moss v. Amira.

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TORT REFORM UPDATE

Med mal bill stalls in senate
By Sammi L. Renken

Supporters of the legislation to reform Illinois’ state medical malpractice liability system were dealt a blow on March 17, when the Illinois State leadership took the Tort Reform bill out of a committee that was set to vote on it.  The Senate Rules Committee, meeting behind closed doors, decided to move SB 150 into the Executive Committee taking away the possibility of a vote on the measure.  SB 150 would cap non-economic damages in medical malpractice lawsuits at $250,000.  The Executive Committee has been granted an extension until April 30, 2005 , to pass a bill, which would send it to the full Senate.  [Steve Whitworth of The Telegraph, 3/18/05 ]

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Reforms impacting insurance market in Texas & Mississippi
By Sammi L. Renken

Since Texas enacted comprehensive tort reform in 2003, the American Tort Reform Association reports the following changes have occurred:

·                     Fifteen companies have entered the market.

·                     The state’s largest medical liability insurer lowered rates by 17%.

·                     The state’s largest liability carrier for hospitals reduced rates by 15%.

·                      It's become easier to recruit physicians.

Since Mississippi enacted comprehensive tort reform in 2004, the American Tort Reform Association reports the following changes have occurred:

·                     The state’s largest insurer will not raise rates in 2005.

·                     St. Paul Travelers reports to the state insurance commissioner that they are returning to the state because of tort reform enacted.

·                     World Insurance Company and Equitable Life Insurance Company have also returned to the state.

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Favorite Web sites

While most people already have lists of their favorite Web sites, these may be of interest to you.  All are free to use, though some may require registration.

COURT, LEGAL, RESEARCH, GOVERNMENTAL

Cook County Clerk of the Circuit Court
www.cookcountyclerkofcourt.org
From Judges Information on opening page you can navigate to Court Rules, Orders & Opinions.

Illinois Compiled Statutes (ILCS)
www.ilga.gov/legislation/ilcs/ilcs.asp
This site contains provisions of the Illinois Compiled Statutes from databases that were created for the Illinois General Assembly.

Illinois Department of Financial & Professional Regulation (IDFPR)
www.idfpr.com/
IDFPR licenses over 1 million professionals in approximately 100 industries.

Illinois Supreme & Appellate Court Opinions
www.state.il.us/court/Opinions
Provides full-text of opinions from Illinois Supreme and Appellate Courts.

Legal Information Institute (LII)
www.law.cornell.edu/
Extensive database for court decisions and legal resources.

Public Records Databases
www.searchsystems.net/
The largest directory of links to free public record databases on the Internet. Find business information, corporate filings, property records, unclaimed property, professional licenses, offenders, inmates, criminal and civil court filings, and more. Browse the public record links by geographic location or use their Public Record Locator to search for a type of public record in a specific area.

US Government Printing Office (GPO)
www.gpoaccess.gov
Access to many Federal resources, including bills, the Congressional Record, U.S. Code, Code of Federal Regulations, and others.


MEDICAL & GENERAL INFORMATION

American Board of Medical Specialties (ABMS)
www.abms.org/
The American Board of Medical Specialties (ABMS), a not-for-profit organization comprising 24 medical specialty boards, is the pre-eminent entity overseeing physician certification in the United States.

American Medical Association (AMA) Physician Select
http://dbapps.ama-assn.org/aps/amahg.htm
AMA Physician Select provides basic professional information on virtually every licensed physician in the United States and its possessions, including more than 690,000 doctors of medicine (MD) and doctors of osteopathy or osteopathic medicine (DO).

Lab Value "Norms"
http://health.ucsd.edu/labref/Index.html
University of California at San Diego's (UCSD) Clinical Laboratories.  Suggested Lab Value "Norms" -- click on "Reference Ranges" link.

Medical Reference for Non-Medical Librarians
http://denison.uchsc.edu/outreach/medbib3.htm
Developed by the University of Colorado Health Sciences Center's (UCHSC) Denison Memorial Library.

National Guidelines Clearinghouse (NGC)
www.guideline.gov/
The National Guideline Clearinghouse™ (NGC) is a public resource for evidence-based clinical practice guidelines.

Researching Medical Literature on the Internet
www.llrx.com/features/medical2003.htm
This article lists and reviews a sampling of tools that are now available to the medical researcher on the Internet.

Units of Measurement Dictionary
www.unc.edu/~rowlett/units/index.html
Covers many common items, plus Apgar and Glasgow Coma scale scoring.

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Healthcare Law Alert is a periodic publication of Johnson & Bell, Ltd. and should not be used or relied upon as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only and you are encouraged to consult with one of the attorneys listed above concerning this newsletter or your situation on any specific legal questions you may have. © 2005 Johnson & Bell, Ltd.