Illinois Appellate Court upholds hospital’s claim of privilege asserted under the Patient Safety and Quality Improvement Act
An Illinois appellate court has recently upheld a hospital’s claim of privilege over certain documents sent to its Patient Safety Organization (PSO) for the purpose of improving patient safety and quality of health care. The decision represents an encouraging sign that Illinois courts will continue to recognize protections and privileges afforded to medical providers under the Patient Safety and Quality Improvement Act of 2005 (“the Patient Safety Act”).
In Daley v. Teruel, the plaintiff in a medical malpractice lawsuit sought to obtain certain “incident review reports” from Defendant Ingalls Memorial Hospital. In response, Ingalls argued that the documents were privileged under the Patient Safety Act because they were assembled for submission to a PSO for the purposes of improving patient safety and quality of health care. Over Ingalls’s objections, Judge Moira Johnson of the Circuit Court of Cook County ordered Ingalls to produce certain portions of the reports. On appeal, the First District Court of Appeals overturned Judge Johnson’s ruling, holding that the reports constituted privileged Patient Safety Work Product (“PSWP”) under the Patient Safety Act because documents were prepared for a PSO, were reported to a PSO, and otherwise met the statutory requirements to qualify as PSWP. The Court stressed that its ruling was consistent with the intent of the Patient Safety Act, which is to create a “system of voluntary, confidential, and non-punitive sharing of health care errors to facilitate and promote strategies to improve patient safety and the quality of health care.”
Notably, the Daley court rejected the plaintiff’s argument that the reports were discoverable because they fell under the “medical records exception” to the PSWP privilege. Under this exception, information that is required to be included in a patient’s medical records is excluded from the definition of PSWP, and thus is not privileged. The Plaintiff argued that this exception applied because the reports at issue contained medical information that was also required to be included in the plaintiff’s decedent’s medical records. The Court rejected this argument, stating that, while original medical records are not subject to the privilege, documents that would otherwise qualify as privileged PSWP do not become discoverable merely because they reference those medical records. In other words, the Court found that the reports sent to the PSO were privileged PSWP, irrespective of whether they included or referenced non-privileged medical records.
Overall, the Daley decision is an encouraging step for Illinois providers that utilize, or wish to utilize, PSOs for the purposes of improving patient care. Although the PSO privilege has existed since the Patient Safety Act was passed in 2005, some providers have been reluctant to retain or communicate with PSOs because there have been few reported appellate court decisions that have interpreted the Patient Safety Act in Illinois. Indeed, before Daley, only one other Illinois case has examined the Patient Safety Act. In that case, Department of Financial & Professional Regulation v. Walgreen Co., the Department of Financial and Professional Regulation issued subpoenas to Walgreen’s pharmacy, seeking to obtain reports of medication errors involving three pharmacists who were under investigation. The Second District Appellate Court upheld Walgreen’s claim of privilege over the reports, holding that the reports qualified as PSWP because they were created by Walgreens for purposes of reporting the information contained therein to its PSO. While the Walgreen case demonstrated the applicability of the PSO privilege in regulatory cases, the Daley case demonstrates that the PSO privilege also applies within the context of medical malpractice litigation. Ultimately, both the Walgreen and Daley decisions represent encouraging signs that Illinois courts will continue to recognize and uphold the PSO privilege provide by the Patient Safety Act.