In its decision filed on January 22, 2016, the Supreme Court of the State of Illinois (“Illinois Supreme Court”) affirmed the lower courts’ orders that required the defendant hospital to disclose the defendant physician’s three applications for staff privileges to the plaintiffs in an Illinois medial malpractice case that alleges that the defendant hospital was negligent in credentialing the defendant physician.
The defendant hospital challenged the order for disclosure of the credentialing documents based on section 15(h) of the Credentials Act. The defendant hospital further challenged the discovery order by arguing that (1) any references in the applications to information reported to the National Practitioner Data Bank (NPDB) must be redacted because it is privileged under section 11137 of the Health Care Quality Improvement Act of 1986 (42 U.S.C. § 11137(a) (2012)), and (2) information concerning medical treatment provided by the defendant physician to patients who are not party to the plaintiffs’ Illinois medical malpractice lawsuit must be redacted because it is privileged under the Credentials Act and/or the physician-patient privilege.
Section 15(h) Of The Credentials Act
Section 15(h) of the Credentials Act provides: “(h) Any credentials data collected or obtained by the health care entity, health care plan, or hospital shall be confidential, as provided by law, and otherwise may not be redisclosed without written consent of the health care professional, except that in any proceeding to challenge credentialing or recredentialing, or in any judicial review, the claim of confidentiality shall not be invoked to deny a health care professional, health care entity, health care plan, or hospital access to or use of credentials data. Nothing in this Section prevents a health care entity, health care plan, or hospital from disclosing any credentials data to its officers, directors, employees, agents, subcontractors, medical staff members, any committee of the health care entity, health care plan, or hospital involved in the credentialing process, or accreditation bodies or licensing agencies. However, any redisclosure of credentials data contrary to this Section is prohibited.” (emphasis added)
The Illinois Supreme Court stated that confidential information is information that may not be disclosed generally; however, a confidentiality provision in a statute or rule does not necessarily mean that an impenetrable barrier to disclosure has been erected: when information is identified as confidential, disclosure will depend on whether applying an evidentiary privilege promotes sufficiently important interests to outweigh the need for probative evidence.
The Illinois Supreme Court stated that information, though confidential, may be highly relevant to matters at issue in a trial and, therefore, critical to the truth-seeking process. Consequently, the confidential nature of information does not prevent it from being discoverable unless the plain language of the statute so provides.
The Illinois Supreme Court held that the credentialing information requested by the plaintiffs would be highly relevant to the cause of action. The Illinois Supreme Court stated that it failed to see how a cause of action for negligent credentialing could proceed if it were to deny plaintiffs access to this information. (However, when the plain language of a statute creates a privilege, the information may not be disclosed, regardless of its relevance – the statutory privilege is an indication that the legislature has determined that other “interests outside the truth-seeking process” must be protected.)
In the case it was deciding, the Illinois Supreme Court held that the defendant hospital failed to demonstrate how interpreting the confidentiality provision in section 15(h) as creating a blanket privilege against the discovery of the data requested by the plaintiffs would advance other interests outside the truth-seeking process.
With regard to the defendant hospital’s other claims of error, the Illinois Supreme Court held that references in the defendant physician’s applications for staff privileges to material reported to the NPDB are not privileged (“it is clear that information reported to the NPDB, though confidential, is not privileged from discovery in instances where, as here, a lawsuit has been filed against the hospital and the hospital’s knowledge of information regarding the physician’s competence is at issue”).
With regard to the defendant hospital’s argument that the defendant physician’s applications for staff privileges concerning his treatment and care of other patients who are not party to this cause of action must be redacted because it is privileged pursuant to Illinois’s physician-patient privilege, as codified in 735 ILCS 5/8-802, the Illinois Supreme Court stated that while it is true that, under Illinois law, medical records of nonparties are protected by the physician-patient privilege with regard to both the facts and communications contained therein, the plaintiffs in the present are not seeking the medical records of nonparties – the defendant physician’s applications for staff privileges only contain information regarding the medical treatment provided and procedures performed by the defendant physician (individual patient identifiers have either not been included or have already been redacted pursuant to the lower appellate court’s judgment, and there was no basis offered for holding that a physician-patient privilege applies to raw data regarding treatment and procedures performed by the defendant physician).
Source Klaine, et al. v. Southern Illinois Hospital Services, 2016 IL 118217.
If you or a family member may have been harmed due to medical negligence that occurred in a hospital in Illinois or in another U.S. state, and there may be an issue as to whether the hospital physician had been negligently credentialed by the hospital, you should promptly seek the advice of a local medical malpractice lawyer in Illinois or in your U.S. state who may investigate your negligent credentialing claim for you and represent you in a negligent credentialing case, if appropriate.
Click here to visit our website to be connected with medical malpractice attorneys in your state who may assist you, or call us toll-free in the United States at 800-295-3959.
Turn to us when you don’t know where to turn.