PROFESSIONAL LIABILITY CLIENT ALERT: The Medical Studies Act: What Happens in Peer Review Does Not Always Stay in Peer Review
Medical professionals often face a difficult balancing act when it comes to peer review. Hindsight is truly 20/20, and it is important for medical professionals to peer review patient and resident care to improve future treatment. However, when inadequate care is provided and a patient or resident is injured, medical professionals face the specter of litigation. How do medical professionals balance between improving future care and protecting themselves from litigation? To help balance these important interests, Illinois has passed both the Medical Studies Act, 735 ILCS 5/8-2101 et seq. (2004), and the Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act, 745 ILCS 55/4 et. seq. (2014) (the “Quality Assessment Act”). While the line between communications protected during peer review and those that are discoverable in litigation is not perfectly clear despite these Acts, there are certain guidelines that peer-review committees can follow to ensure the greatest possibility of protection under the Acts.
Peer-Review Protections for Medical and Long-Term Care Providers in Illinois
The Medical Studies Act and Quality Assurance Act encourage medical care providers, hospitals, and long-term care facilities to engage in voluntary self-evaluation in order to improve the quality of patient and resident care. 735 ILCS 5/8-2101 et seq. (2004); 745 ILCS 55/4 et. seq. (2014). Documents produced “specifically for the use of a peer review committee” are privileged and protected from discovery in litigation. Chicago Trust Company v. Cook County Hospital, 298 Ill. App. 3d 396, 402, 698 N.E.2d 641, 646 (Ill. App. Ct. 1998). Through these protections, the Acts seek to encourage voluntary studies and “programs used to improve hospital conditions and patient care or to reduce the rates of death and disease.” Id. These protections are equally available to the medical staff of hospitals under the Medical Studies Act and to the medical staff of long term care facilities under the Quality Assurance Act. Lindsey v. Butterfield Health Care II, Inc., 2017 IL App (2d) 160042 (2017) (applying the protections of the Medical Studies Act to long term care facilities through the Quality Assurance Act). 
While the Medical Studies Act and Quality Assurance Act protect peer review for the betterment of patient and resident care, they do not protect all internal criticisms of past patient and resident care. Below, we consider the limitations on the Acts’ protections and how medical care providers can use the Acts to protect the peer-review process.
The Acts are Limited to Medical Professionals
The Medical Studies Act and Quality Assurances Act only protect peer review when it is between individuals qualified to opine as to the adequacy of patient or resident care. Pietro v. Marriott Senior Living Services, Inc., 348 Ill. App. 3d 541, 810 N.E.2d 217 (Ill. App. Ct. 2004). Hospital or facility staff that are not directly involved in patient or resident medical care are not entitled to the protections of the Acts. Id. These include managerial and administrative staff who are responsible for day-to-day non-medical operations, such as administrators, human resources staff, or non-medical department directors. Id. The mere presence of a non-medical staff member on a review committee can defeat the protections that would otherwise be afforded to medically qualified committee members. Id.
A hospital or long-term care facility seeking to engage in peer review must first ensure that the peer-review committee is properly staffed. Only qualified medical professionals should be assigned to a peer-review committee. When determining committee membership, a medical professional’s specialization and practice area should be considered in addition to his or her basic qualifications. In order to ensure protection under the Acts, the peer-review committee must be representative of the field of medicine being reviewed. Staffing a peer-review committee with solely qualified medical professionals will help avoid waiving the Acts’ protections through the involvement of non-medically qualified staff.
The Acts Only Protect Documents Created Through Peer Review
The Medical Studies Act and Quality Assurance Act only protect documents created through the peer review process. The Acts protect “the mechanisms of the peer-review process, including information gathering and deliberation leading to the ultimate decision rendered by a hospital peer-review committee.” Chicago Trust, 298 Ill. App. 3d at 402, 698 N.E.2d at 646. In short, the most relevant factor for determining whether a document is subject to protection under the Acts is to consider the purpose of the document. Any document created by the committee will be considered protected so long as it is created solely for the purpose of peer review. Id. This includes documents created for the purpose of fact finding, analysis, or memorializing conclusions during peer review. Id. So long as the peer-review committee creates a document for the purpose of peer review, it is protected, even if it is later disseminated to individuals outside the peer-review committee. Id. at 406, 649.
However, documents created for a purpose other than peer review are not protected, regardless of whether the peer-review committee was involved in their creation. In Chicago Trust, members of the peer-review committee were involved in drafting documents for distribution among staff describing an incident and mandating corrective action based upon the committee’s conclusions. Id. The “broad dissemination” of these documents and their “descriptive/prescriptive” content indicated that they were not protected peer-review documents because “they were not generated during the peer-review process, but were created as a result of that process.” Id. In short, the documents were not created for the purpose of peer review; rather, they were created to put the final conclusions of the peer review into action. The dividing line between a peer-review committee’s protected analysis versus discoverable recommendations to staff can be blurry in practice, as seen in Chicago Trust. To best ensure protections under the Acts, a peer-review committee must appreciate that documents that serve any purpose beyond actual peer review will likely not receive protection.
Likewise, a peer-review committee’s reliance on a document does not make it privileged. Lindsey, 2017 IL App (2d) 160042 ¶¶ 16-17. In Lindsey, a nursing home sought protection of an incident report under the Quality Assurance Act because it was important to the peer-review process. Id. at ¶ 3. While the information in this report was important to the peer review of the incident, the report was not created as part of peer-review process. Id. ¶¶ at 16-17. Rather, it was created in the facility’s regular course of business, and was, therefore, unprotected. Id.; citing Chicago Trust, 298 Ill. App. 3d at 406, 698 N.E.2d at 649; Roach v. Springfield Clinic, 157 Ill. 2d 29, 40-41, 623 N.E.2d 246, 251 (Ill. 1993). A peer-review committee can create protected documents, but it cannot bestow protected status on a document created outside the committee. As such, any documents recording the facts and background of an incident that are not created by a peer-review committee will likely be unprotected, regardless of whether they include an analysis of the incident by members of the peer-review committee. To make the best use of the peer-review protections under the Acts, peer-review committee members must limit their written analysis and conclusions regarding an incident to the peer-review process.
The Acts Only Protect Peer-Review Communications
Similar to documents, communications critical of patient or resident care are not protected under the Acts if they are offered outside of the peer-review process. Roach v. Springfield Clinic, 157 Ill. 2d 29, 40-41, 623 N.E.2d 246, 251 (Ill. 1993). In Roach, the content of a conversation between a nurse and a doctor was not protected under the Acts because it was offered prior to the commencement of peer review. Id. Like a document, a statement must be made for the purposes of peer review to entitle it to the Acts’ protections. Id. A statement’s relevance to peer review alone will not warrant protection under the Acts. Id. Moreover, conversations between committee and non-committee members will not be afforded the Acts’ protections. Id. Thus, statements from outside the peer-review committee process will likely be discoverable in litigation.
Obtaining the Acts’ protections for communications is uniquely challenging because a conversation’s purpose is not always clearly defined. Unless a statement is offered within the confines of a peer-review committee meeting about a particular incident, it may not be obvious whether that declaration is being offered solely for the purpose of peer review. By contrast, the peer-review purpose of a document can typically be determined from its language or the context in which it is drafted. It is important to be cognizant of the setting where a discussion regarding an incident takes place, as a conversation between committee members which even briefly discusses an incident outside the context of the peer-review committee may technically be discoverable under the Acts. In short, committee members should confine review and analysis to meetings during the peer-review process to assure protection under the Acts.
Practical Application of Peer-Review Protection
As the above cases show, application of peer-review protection under the Medical Studies Act and Quality Assurance Act can be confusing. However, the case law discussed in this article shows that a structured, clearly defined peer-review process will afford the best opportunity for obtaining protection under the Acts.
A peer-review system, which meets the following four criteria, will likely afford medical professionals the greatest protection of their peer-review process. First, peer review must be limited to an established committee of medically qualified professionals. Second, all review and analysis must occur among the committee’s members through the peer-review process, and these members must clarify the peer-review purpose of their analysis. Third, documents created during the peer-review process must be created solely for the purpose of peer review. Fourth, communications must be conveyed during the peer-review process and by committee members in order to receive protection. Following these four guidelines will not guarantee protection under the Acts, but it will provide the best chance for protecting a peer-review process from discovery in litigation.
 Prior to Lindsey, Pietro held that the Medical Studies Act did not apply to long term care facilities because they are not listed among the applicable care providers identified within the Medical Studies Act. 348 Ill. App. 3d 541, 810 N.E.2d 217 (Ill. App. Ct. 2004). Lindsey circumvents this ruling, applying the same protections through the Quality Assurances Act due to the similarities in language between the two statutes. 2017 IL App (2d) 160042.
- 11th Circuit Court Clarifies Harvey v Geico Florida Supreme Court Decision on Evidence of Claimant and Claimant Counsel Action in Bad Faith Case
- Finally! Discovery Harassment of Top-Level Corporate Officers is Curtailed
- Limitations for Policyholders Seeking Coverage in Employment-Related BIPA Cases
- Vaccine Mandates in the Workplace Are Spreading
- The Death of Impartiality - "Dr. Death," Reptilian Tactics, and Fighting Juror Bias
- Considerations That Employers Should be Mindful of as Employees Return to the Office
- A Win for Policyholders Seeking Coverage in a BIPA Class Action Suit
- Reasonable Disagreement or Fraud? Competing Estimates of Property Damage in First Party Claims
- Malpractice Mayhem: An Insurer's Standing to Sue Counsel Retained to Defend Its Insured
- Prejudgment Interest Now a Reality in Illinois
- Professional Liability
- Class Action
- Complex Commercial Litigation
- Insurance & Reinsurance Litigation & Counseling
- Insurance Coverage
- Cyber Risk & Liability
- Toxic Tort
- Professional Development
- Employment Litigation & Counseling
- Medical Negligence & Healthcare Liability
- Pharmaceutical & Medical Device Litigation
- Product Liability
- Construction Litigation & Counseling
- Social Media & Privacy
- Workers' Compensation
- Discrimination, Harassment & Hostile Workplace Claims