MedicoLegal Strategies for Improving Patient Safety in Illinois

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Medico-Legal Strategies forImproving Patient
Safety in Illinois

• Stephan Landsman
• Robert Clifford Professor of Tort Law and Social
  Policy
• DePaul University School of Law
• and
• The Chicago Patient Safety Forum
• An Independent Project of the Institute of
  Medicine, Chicago
• Supported by the Otho SA Sprague Memorial
  Institute

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Illinois Medical Studies Act 735 ILCS 5/8-2101
et. Seq.

• First enacted in 1961
• Grown over time each amendment has broadened
  the privilege
• Sakosko v. Memorial Hospital, 522 N.E.
• 2d 273 (Ill App. 5th D 1988)
• As interpreted by the Illinois Supreme Court the
  legislation is intended
• to ensure that members of the medical
  profession will effectively engage in
  self-evaluation of their peers in the interest of
  advancing the quality of health care.
• Roach vs. Springfield Clinic, 623 N.E. 2nd 246,
  251 (Ill. S. Ct.1993)

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The Medical Studies Act Provides

• All information of a qualified organization or
  committee... (but not the medical records
  pertaining to the patient), used in the course of
  internal quality control or of medical study for
  the purpose of reducing morbidity or mortality,
  or for improving patient care...shall be
  privileged, strictly confidential and shall be
  used only for medical research...

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How has it been interpreted?

• Matters generated specifically for the use of a
  qualified committee
• Chicago Trust v. Cook County Hospital, 698
  N.E.2d 646 (1998)
• Not cover earlier acquired
• Not cover generated after
• Temporal Test
• Information must actually belong to a committee
• Possessory Test

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Items That Are Not Protected

• Patient medical records
• Accident reports like a slip-and-fall
• Conversations in a hallway
• Documents stamped peer review but routed to
  business staff
• Inquires by a lone administrator
• Reports directed to risk managers

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Protection as reached beyond peer review and
traditional committees

• Niven v. Siqueira, 487 N.E. 2d 937 (Ill. S. Ct.
  1985)
• Covers accreditation materials filed with JCAHO
• The purpose of the act is to encourage candid
  and voluntary studies and programs used to
  improve hospital conditions and patient care.
• Materials in the hands of any legitimate medical
  society are protected by the Act so long as those
  materials were used as part of a study or program
  designed to improve quality control or patient
  care or reduce morbidity and mortality.
• Doe v. Ill. Masonic Medical Center, 696 N.E. 2d
  707 (Ill. App. 1st D 1998)
• IRB documents related to experimental protocol
  covered

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How to Secure the Privilege

• Recognize the hospital/health care providers
  duty to explain and persuade Court
• Maintaining a qualified voluntary reporting
  system
• Written Protocol
• Committee recognized by the Act
• Designated investigators
• Sequencing a fast investigation
• Dealing with self-reporting
• De-identification
• Making sure the protocol is followed

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Perinatal Network Success

• Under each institutions quality structure
• Meetings with participants lead to de-identified
  forms
• Charter letter and protocol
• Totally separate review from any other

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How to Have A Train Wreck

• Ignore the protocol or committee structure
• Have the staff lie or attempt to cover up
• Stamp everything Privileged
• Converse in the hallways
• Fail to educate the courts