All Experienced Chicago, IL Medical Malpractice Lawyers engaged in discovery with medical professionals or hospitals have come across the the following objection:  “Objection; calls for privileged information protected by the Illinois Medical Studies Act.”  To respond intelligently, and in a way that protects your client’s rights to all discoverable information in his or her case, medical malpractice attorneys practicing in Illinois must learn what type of information is, and is not, privileged under the Medical Studies Act (aka “Peer Review Privilege”).

The Illinois Medical Studies Act (“Act”), 735 ILCS 5/8-2101 et seq., provides that information obtained through medical studies or in the course of internal quality control is inadmissible as evidence and is nondiscoverable.   The Act extends a privilege to “[a]ll information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner’s professional competence.”

The purpose of the Act is to facilitate professional self-evaluation by members of the medical profession designed to improve hospital conditions and patient care.  See Green v. Lake Forest Hosp., 335 Ill. App. 3d 134, 137 (2d Dist. 2002).

The Act APPLIES (and therefore a privilege extends) to:

• Documents initiated and used by a hospital’s peer-review committee for internal quality control, medical study or to improve patient care are privileged.  Sakosko v. Memorial Hosp., 167 Ill. App. 3d 842, 844 (5th Dist. 1988).
• Documents generated at the request of a peer-review committee, including information gathering and deliberation leading to a peer review committee’s ultimate decision.  Giangiullo v. Ingalls Memorial Hosp., 365 Ill. App. 3d 823, 836 (1st Dist. 2006) (observing that information sought in “interrogatories has nothing to do with peer review,” and stating that because the Act focuses “on information, records, reports, statements, notes, memoranda, or other data, it has no applicability to the knife sought in request to produce”).  Even if documents are directed to people outside of the committee proper, they are still privileged.
• Application of the privilege is not based on whether the information is verbal or written.  Berry v. W. Suburban Hosp. Med. Ctr., 338 Ill. App. 3d 49, 56 (1st Dist. 2003).
• Medical journal articles used in peer-review committee deliberations. Anderson v. Rush-Copley Med. Ctr., 385 Ill. App. 3d 167, 178 (2d Dist. 2008).
• Peer-review “action plans” consisting of recommendations and internal conclusions. Id. at 185.

The Act DOES NOT APPLY (and therefore a privilege does not extend) to:

• Documents that were generated prior to the peer review process.  Roach v. Springfield Clinic, 157 Ill. 2d 29 (Ill. 1993), even if the purpose of a communication is to notify the peer review or quality control committee of possible issues.  Berry v. West Suburban Hosp. Med. Center, 338 Ill. App. 3d 49, 54 (1st Dist. 2003).
• Documents, including recommendations, findings, results, and actions, made after the completion of, and as a result of, the peer review process.  Chicago Trust Co. v. Cook County Hosp., 298 Ill. App. 3d 396, 405 (1st Dist. 1998).
• Internal investigations performed by a hospital’s administration, rather than by a peer-review committee.  Green v. Lake Forest Hosp., 335 Ill. App. 3d 134 (2d Dist. 2002) (“Unlike investigations performed by hospital committees, internal investigations performed by a hospital’s administration are not privileged”).
• Documents prepared for routine medical business or to solicit legal advice are not protected, even if the documents are later used in the peer-review process.  Pietro v. Marriott Senior Living Serv., Inc., 348 Ill. App. 3d 541 (1st Dist. 2004).
• Although disclosure does not waive the privilege, the fact that a document has been widely distributed is evidence that it should not be protected, because it was created as a result of the peer-review process instead of being generated for use within the process itself.  Chicago Trust Co. v. Cook County Hosp., 298 Ill. App. 3d 396, 405 (1st Dist. 1998).
• Hospital’s credentialing “regulations and bylaws and the JCAHO standards” when it gave a doctor hospital privileges or credentials. Frigo v. Silver Cross Hosp., 377 Ill. App. 3d 43 (1st Dist. 2007).
• Actual changes adopted as a direct result of a hospital’s “action plan.” Anderson, 385 Ill. App. 3d 167.

A firm understanding of the Illinois Medical Studies Act is critical for anyone practicing medical malpractice or personal injury litigation in Illinois.