Kopolovic v. Shah
967 N.E.2d 368
Ill. App. Ct.2012Background
- MCDS operated a Downers Grove surgery center; Dr. Shah, an anesthesiologist, was employed by a group under contract with MCDS and had staff privileges there.
- Dr. Kopolovic, a plastic surgeon, performed procedures at MCDS; on May 8, 2007, he conducted a hernia repair and two unrelated cosmetic procedures for a patient at MCDS.
- Dr. Shah drafted a memorandum alleging unethical and deceptive practices by Kopolovic, including performing a tummy tuck disguised as hernia repair; the memorandum was distributed to board and related committees.
- Kopolovic did not receive the memorandum until June 20, 2007; the board’s formal investigation into the matters raised was pending and later convened, with no clear evidence the board had begun its review when the memorandum was written.
- Plaintiff sued for defamation and false light; MCDS and Shah moved for summary judgment on multiple grounds, including the Medical Studies Act privilege, common-law conditional privilege, and substantial truth.
- Trial court granted summary judgment; on appeal, the court reversed and remanded, finding genuine issues of material fact on privilege, abuse of privilege, and substantial truth.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Medical Studies Act privilege apply to the memorandum? | Kopolovic: Act does not cover this memorandum. | Shah/MCDS: memorandum is privileged as information of a peer-review/quality-control process. | Act not applicable; memorandum not information of a committee. |
| Is the memorandum 'information of' a committee under the Act even if not generated by a committee? | Data not generated by a committee; no privilege. | Memorandum could be protected as part of board/committee process. | Not information of the board/committee; privilege did not attach. |
| Did Dr. Shah abuse the conditional privilege in publishing the memorandum? | Shah failed to adequately investigate and limit publication; reckless disclosure. | Shah’s actions were appropriate; privilege should apply. | Question of fact; summary judgment not appropriate on abuse of privilege. |
| Are the statements in the memorandum substantially true? | Key charges about minimal hernia, abdominoplasty, improper consent, and mis-billing could be false or distorted. | Gist of the statements is substantially true; details need not be perfect for truthfulness. | Genuine factual questions remain; not substantially true as a matter of law; remanded for fact-finding. |
| Should the defamation/false light and related negligence/vicarious liability claims be resolved on remand? | Legal issues unresolved; deserve full consideration on remand. | Trial court ruling may be sustained on alternative grounds. | Remand for proceedings on remaining issues; not decided here. |
Key Cases Cited
- Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993) (information of committee must be generated by a committee)
- Pietro v. Marriott Senior Living Services, Inc., 348 Ill. App. 3d 541 (2004) (information of committee requires committee generation)
- Grandi v. Shah, 261 Ill. App. 3d 551 (1994) (administrative investigations not necessarily privileged)
- Berry v. West Suburban Hospital Medical Center, 338 Ill. App. 3d 49 (2003) (letters not converting into information of a committee)
- Anderson v. Rush-Copley Medical Center, Inc., 385 Ill. App. 3d 167 (2008) (information gathering can reveal internal processes, not always privileged)
- Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16 (1993) (conditional privilege requires investigation and limit on publication)
- Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108 (1996) (statutory privilege does not create civil immunity)