Medical Malpractice Case Update – Fall 2008
I. Expansion of the Documentary Privilege Granted under the Medical Studies Act
The Medical Studies Act (“Act”) generally protects from disclosure all information generated in an internal peer-review or quality-review process. While the Act has traditionally protected documents which arise from the workings of the review process, it did not provide privilege for documents generated before the review process started, or for the results or ultimate decisions of a review committee.
Recently in Anderson v. Rush-Copley Medical Center, the Illinois Appellate Court interpreted the Act more broadly than had prior courts, finding privilege both for documents produced prior to the peer-review process and a peer-review committee’s final conclusions. In Anderson, the defendant hospital’s peer-review committee had used certain medical journal articles to research the care provided. The hospital’s committee had also created an Action Plan based on its findings at the conclusion of its work. The trial court ordered the hospital to produce these documents, and when the hospital refused to produce them, an appeal followed.
Regarding the medical journal articles, the patient argued that because the articles were not specifically generated by members of the review committee and the articles pre-dated the peer-review process, they could not be privileged. In response, the hospital reasoned that disclosure of the medical journal articles would reveal its committee’s thought process. In a favorable decision for hospitals and health care facilities, the Appellate Court agreed with the hospital, holding that disclosure of the medical journal articles would breach the internal thought process of the review committee. In determining privilege, it was not the content of the articles, but the manner in which they were used by the committee that was important: the articles had been specifically obtained to review the care provided to the patient in question; they had been distributed only to members of the committee; and they had formed the basis for drafting the Action Plan.
In regard to the Action Plan, the patient argued that the plan was nothing more than the results of the peer review process which historically have not been found to be privileged. Again, the Appellate Court disagreed, finding that the plan was merely the review committee’s final report reflecting the internal conclusions and recommendations of the committee. It distinguished the ultimate conclusions of a committee from action taken later by the hospital after the committee’s work was completed. Therefore, any actual modifications of hospital policy or procedure as a result of the Action Plan would be discoverable, but the plan itself was not.
Accordingly, Anderson is a favorable decision for hospitals and health care facilities. It defines the scope of the privilege provided by the Medical Studies Act to cover a category of documents generated even before the review process begins, and to the final report of the review committee.
II. The Difficulty of Claiming Immunity Under the Good Samaritan Act
Two Appellate Courts have recently narrowed a physician’s ability to claim Good Samaritan Act immunity for alleged medical negligence: Hernandez v. Alexian Brothers Health System and Muno v. Condell Medical Center. The Good Samaritan Act (“the Act”) has always cloaked a healthcare provider with immunity from civil liability if he provides emergency care, without fee and in good faith.
In Hernandez, a cardiologist was rounding when an overhead page requested that all available cardiologists respond to a Code Blue. Despite the cardiologist’s response to the page and treatment of the patient, the patient died. The patient’s estate filed suit against the cardiologist.
The cardiologist sought dismissal of the action based upon the immunity provided by the Act. His affidavit suggested that he was not required to respond to the page, he was not on call at the time, and he did not charge a fee for his service. The cardiologist also suggested that he had not charged on other occasions when he had offered emergency assistance, but he could not identify such a specific instance. The patient countered obtaining admissions from the cardiologist’s billing manager that she could remember no other similar circumstance when the cardiologist had not submitted a bill. The patient questioned whether the cardiologist’s decision not to bill the patient in this circumstance was within the good faith provision of urgently needed medical care, or whether it was made in an attempt to gain immunity from the provision of obviously negligent medical care. The Appellate Court noted that the billing manager’s testimony created a genuine issue of fact whether the physician provided service without a fee in good faith, or if the physician made a post-incident decision not to charge in an effort to obtain immunity in subsequent litigation. Holding that the answer to this issue was for the jury to decide, rather than for a court to decide on a motion to dismiss, the court remanded the case for trial.
In Muno, the Appellate Court again focused on whether the physician acted in good faith in failing to bill for services rendered. At trial, the defendant physician testified that he was not aware of Act at the time he cared for the patient and that he acted in good-faith in deciding not to bill for his treatment. The trial court denied the physician’s attempts to obtain immunity under the Act, and a jury awarded $6,300,000 to the patient.
On appeal, the physician argued that all of the evidence relating to his actions suggested he did in fact act in good faith. No explicit evidence contradicted his testimony that he was previously unaware of the Act, and that he decided not to bill since he viewed his services as volunteer in nature. The patient, however, suggested that the physician had participated in a meeting with the head of the anesthesiology department, and that it was at that meeting that the decision not to bill was made to gain legal advantage in any resulting lawsuit. The physician denied that the meeting had occurred and denied any such ill intent in deciding not to bill. The Appellate Court found that the jury was free to discount the physician’s explanation, free to accept the inference that the meeting occurred, and free to infer that as a result of the meeting and in an effort to obtain immunity, a decision was made not to bill.
These cases illustrate the evidentiary difficulty of obtaining immunity under the Act. In most instances, only the defendant healthcare provider can know whether he or she acted in good faith in deciding not to bill a patient for treatment. “Good faith” has come to mean that the provider’s care was gratuitously extended to the patient. The provider does not act in good faith when the decision not to bill the patient is made only for the purpose of gaining advantage in subsequent legal proceedings. Future cases will likely explore further this difficult area of proof.
Originally published in the Fall 2008 edition of Quinn Quarterly.