Every medical facility has dozens of files consisting of papers submitted in conjunction with physician applications for credentials to practice in that facility. Are such documents privileged from discovery in a medical malpractice lawsuit claiming, in part, that the facility was negligent for renewing the defendant’s credentials? Late last month, a unanimous Illinois Supreme Court held in Klaine v. Southern Illinois Hospital Services that the answer was “no.” Our detailed report on the underlying facts and lower court decisions in Klaine is here. Our report on the oral argument is here.
In response to the plaintiff’s discovery requests, the defendant hospital produced over 1,700 pages of documents. However, the defendant refused to produce three categories of documents, arguing that they were privileged under two Illinois statutes, the Medical Studies Act and the Health Care Professional Credentials Data Collection Act. The defendant complied with the circuit court’s order to produce one of the three categories, but declined with respect to the other two. The defendant was held in “friendly contempt” to facilitate an appeal. The Fifth District affirmed the lower court’s order in almost all respects.
In an opinion by Justice Burke, the Supreme Court affirmed. The Court began by concluding that because the facts were undisputed and the issue came down to a question of law – whether or not the relevant statutes created privileges – review was de novo. The Court acknowledged that the Credentials Act provides that application materials are “confidential” and “may not be redisclosed without written consent of the health care professional.” However, “confidential” and “nondiscoverable” were not the same thing. The Court held that if the legislature wants to create a privilege, it must plainly state not just that the material is confidential, but also privileged, nondiscoverable, and/or inadmissible.
The information the defendant was withholding was the only material which, by statute, it was required to consider in deciding whether to credential or recredential the defendant physician. Therefore, it was highly relevant to a claim for negligent credentialing. Since the information seemed highly probative, a strong showing was needed as to how nondisclosure would advance other interests outside of the truth-seeking process in order to justify a privilege. The Court held that the defendants had made no such showing. Accordingly, the documents were not privileged in their entirety.
The defendants also argued that information reported to the National Practitioner Data Bank was privileged. But that Act was similar to the Credentials Act – it provided that the materials were “confidential,” but never said they were privileged or nondiscoverable. Indeed, the Court pointed out, facilities are required to report such data to the Practitioner Bank when a physician applied or reapplied for credentials, and periodically while he or she is on staff.
Finally, the defendant argued that information regarding treatment of nonparties was privileged pursuant to Illinois’ physician-patient privilege. The information being sought wasn’t the medical records of third parties; such persons were only involved peripherally to the extent their care was referred to in the credentials materials. Individual patient identifiers had already been redacted, or were never included in the first place, so there was no possible privilege issue.
The Court concluded by briefly affirming the Appellate Court’s decision to vacate the contempt finding against the defendant, which had been entered solely to make the discovery order appealable.