Establishing Privilege for Medical Documents

Elizabeth Ryan’s husband was terminally ill from pancreatic cancer.

She felt that Staten Island University Hospital lured him into useless treatment using false advertising and misrepresentations of treatments that promised a 95 percent success rate.

She sued the hospital and others alleging fraud, medical malpractice, and violations of New York’s consumer protection and public health laws. To prove these allegations, the plaintiff sought the hospital’s radiosurgery database, which contained the names of people who received such treatment and their outcomes, back-up CDs, and hard drives, subject to the redaction of the patients’ personal information.

It wasn’t until the hospital was served with a third set of interrogatories and production of documents that it objected, claiming the documents were privileged.

The U.S. District Court for the Eastern District of New York ruled that the decedent’s wife was entitled to these documents. Ryan v. Staten Island University Hospital, E.D.N.Y. , No. 04-2666 (decided Dec. 5, 2006).

Finding that the information sought by the plaintiff was not privileged because "evidence of adverse treatment outcomes was relevant to whether defendant’s statements were materially misleading" and "whether defendant acted with the requisite intent to defraud," the court noted that the hospital did not initially place these documents in its privilege log and, instead, "belatedly" invoked a privilege.

Similarly, under Illinois Supreme Court Rule 201(n), when a party refuses to produce or disclose certain documents on the basis of privilege, the defendant must put together a privilege log describing the nature of the documents not produced or disclosed and the exact privilege being claimed.

When a party withholds information that is otherwise discoverable by claiming privilege, it must submit affidavits with sufficient facts describing the nature of the documents to allow the court to assess the applicability of the privilege.

Boilerplate objections simply are insufficient. The Illinois Medical Studies Act, 735 ILCS 5/8-2101 et seq., provides that hospital documents may be privileged so long as the who, what, when, and where of each document is addressed, to ensure that the court is able to determine whether it falls under the privilege purview of the particular statute.

Generally, this means that several conditions must be met.

(1) Individual documents must be described, not masses of unidentified and undifferentiated documents bundled together.

(2) The dates of the documents must allow the court to determine whether the materials were prepared during the operation of any committed convened pursuant to the Medical Studies Act "in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care," as required for the establishment of a privilege under that act.

In Roach v. Springfield Clinic, 157 Ill2d 29, 623 N.E.2d 246 (1993), the court held that a core requirement of the privilege is that the committee must be named, and that the privilege extends only to information derived for that committee in the interest of self-evaluation of their peers.

(3) The author of the documents must be established, to determine if any documents were prepared by individuals acting on behalf of a committee qualified under the act.

(4) The recipients of the document must be identified, to determine if the material was identified for the use of and prepared at the direction of a qualified committee.

Committee Comments to Illinois Supreme Court Rule 201(n) also make clear that "any claim of privilege with respect to a document must be stated specifically pursuant to t his rule."

Courts, too, have stressed the need for specificity. In Giangiulio v. Ingalls Memorial Hospital, 365 Ill.App.3d 823, 850 N.E.2d 249 (1st Dist. 2006), the Illinois appellate court examined the hospital’s privilege log and found the statutes, as well as the physician-patient privilege, did not bar disclosure. Only Mental Health and Developmental Disabilities Confidentiality Act might protect interrogatories from disclosure, based upon promoting effective psychotherapy.

The Illinois Supreme Court is clear about the burden of those seeking privilege protection and the consequences of failing to meet that burden.

In Roach, the court found that "[t]he responsibility for not making a more complete record ...must be placed squarely on [hospital defendants], not plaintiffs, for the burden of establishing the applicability of evidentiary privilege rests with the party who seeks to invoke it." Id., at 251.

The consequence of not meeting the burden is full disclosure of the records. In Roach, the parents of a child born with cerebral palsy and irreversible brain damage brought a medical malpractice action against a hospital, physicians and a clinic. The trial court had excluded testimony that made certain medical information privileged. The supreme court, however, found that the evidence was admissible and that the statutory privilege did not apply merely because the doctor reported information about the incident to his department.

"Our appellate court has correctly observed that the statute was never intended to shield hospitals from potential liability." Id.

Illinois courts have consistently confined the privilege within its narrowest possible limits. Sharp v. Federal Insurance Company, Ltd., 364 Ill.App.3d 64, 845 N.E.2d 719 (1st Dist. 2006). As the Sharp court noted, "there is a strong public policy in Illinois of encouraging disclosure between insurer and insured, ‘with an eye toward ascertaining that truth which is essential to the proper disposition of a lawsuit,’" Id., citing Waste Management, Inc., v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 190, 579 N.E.2d 322, 327 (1991).

The requirements of establishing privilege are substantial, and courts need to ensure that, before denying discovery of relevant information, the privilege is properly established and the goal of improving patient care is being advanced.