Second District Illinois Appellate Court rules on Quality Assessment and Assurance Protection Act

Second District Illinois Appellate Court rules that nursing home investigation reports are not privileged pursuant to the Quality Assessment and Assurance Protection Act.

In Lindsey v. Butterfield Health Care II, Inc., the plaintiff appealed the judgment of the circuit court of DuPage County, requiring production of investigation reports the defendant Butterfield Health Care II, Inc. (“Butterfield”) claimed were privileged under the Quality Assessment and Assurance Protection Act (“Quality Assurance Act”). The Second District Court affirmed the lower court’s decision, holding that Butterfield did not sustain its burden of proving that the documents fell within the privilege afforded by the Quality Assurance Act.

The documents at issue consisted of six written witness statements and an investigation report generated during the course of the defendant nursing home’s internal investigation of a fall suffered by the plaintiff. The defendant argued that the reports were privileged pursuant to the Quality Assurance and Medical Studies Act because they were prepared for the facility’s Quality Assurance Committee.

In analyzing whether any privilege applied, the Appellate Court noted that the Quality Assurance Act is the long-term care facilities’ counterpart to the Medical Studies Act, which applies to medical care facilities such as hospitals. Before Lindsey, no Illinois Appellate Court opinion had interpreted the Quality Assurance Act. Therefore, the Second District Court looked to the case law interpreting and applying the Medical Studies Act for precedent. Specifically, it relied on the Appellate Court’s rationale in Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 401 (1998):

[In Chicago Trust], the court explained that documents initiated, created, prepared, or generated by a peer-review committee are privileged under the Medical Studies Act; conversely, documents that are created in the ordinary course of the hospital’s medical business or for later corrective action by the hospital staff are not. The court specifically rejected the hospital’s suggestion that its oversight committee could invoke the Medical Studies Act’s protection by declaring in advance that all incident documents prepared by the hospital staff were part of the peer-review process. The court explained: “The Hospital’s position goes too far. Such a policy, if effective, would swallow the rule. The [Medical Studies] Act would not create exceptions to disclosure. It would make everything confidential, except for the patient’s own medical records.”

In Lindsey, the Second District Court found it significant that the report and statements at issue were made prior to any peer review meeting. It determined that, as in Chicago Trust, the nursing home’s argument that the documents at issue should be privileged because they “were eventually reviewed by the quality assurance committee” was without merit.

To obtain a copy of Lindsey v. Butterfield Health Care II, Inc., 2017 IL App (2d) 160042 (Feb 9, 2017), you may contact Anne Nelson by telephone (312-673-7810) or email (anne.nelson@arandpartners.com).