CAROL KLAINE et al., Appellees, v. SOUTHERN ILLINOIS HOSPITAL SERVICES, d/b/a Memorial Hospital of Carbondale and St. Joseph Memorial Hospital, Appellant.
118217
Supreme Court of Illinois
January 22, 2016
2016 IL 118217
Illinois Official Reports
Judgment: Appellate court judgment affirmed. Cause remanded.
Counsel on Appeal: Kara L. Jones, of Feirich/Mager/Green/Ryan, of Carbondale, for appellant.
Thomas Q. Keefe III, of Keefe & Keefe, P.C., of Belleville, for appellees.
Richard R. King, Robert John Kane and Sherri DeVito, of Illinois State Medical Society, of Chicago, and Mark D. Deaton, of Illinois Hospital Association, of Naperville, for amici curiae Illinois State Medical Society et al.
Patrick E. Dwyer III and Patrick E. Dwyer II, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
OPINION
¶ 1 Defendant Southern Illinois Hospital Services, d/b/a St. Joseph Memorial Hospital and Memorial Hospital of Carbondale (SIHS), appeals the judgment of the appellate court, which affirmed the Williamson County circuit court‘s finding that certain documents sought in discovery by plaintiffs Carol and Keith Klaine were not privileged and must be produced. 2014 IL App (5th) 130356. For reasons that follow, we affirm the appellate court‘s judgment and remand for further proceedings.
BACKGROUND
¶ 2 Carol and Keith Klaine filed a medical malpractice lawsuit against Frederick Dressen, D.O. (Dr. Dressen) and Southern Illinois Medical Services, d/b/a The Center for Medical Arts. In an amended complaint, plaintiffs added a claim against Southern Illinois Hospital Services, d/b/a St. Joseph Memorial Hospital and Memorial Hospital of Carbondale (SIHS), for the negligent credentialing of Dr. Dressen.
¶ 3 Plaintiffs served discovery requests on SIHS and, in response, SIHS provided over 1,700 pages of documents. SIHS refused, however, to provide certain documents, which it listed in a privilege log, as required by
¶ 4 Upon plaintiffs’ motion, SIHS submitted the documents which it claimed to be privileged to the circuit court for in camera review. After reviewing the documents, the circuit court agreed with SIHS that all of the documents were privileged, with the exception of those documents contained in “Group Exhibit B,” “Group Exhibit F,” and “Group Exhibit J.” SIHS complied with the court‘s order compelling the production of documents in Group Exhibit B, but continued to maintain that the documents in Group Exhibit F and Group Exhibit J were privileged. Group Exhibit F consists of Dr. Dressen‘s three applications to SIHS for staff privileges dated December 1, 2011 (47 pages), February 19, 2009 (37 pages), and August 13, 2010 (33 pages). Group Exhibit J contains “procedure summaries and case histories” that, essentially, list the various surgical procedures that Dr. Dressen performed at SIHS hospitals.
¶ 5 To facilitate SIHS‘s appeal of its ruling, the circuit court held SIHS in “friendly” contempt and imposed a $1 monetary sanction. Thereafter, SIHS filed an interlocutory appeal in the appellate court pursuant to
¶ 6 In a judgment entered August 6, 2014, the appellate court affirmed the lower court‘s ruling, with two modifications: (1) all references to the “Greeley Report,” an external peer review report contained in Dr. Dressen‘s December 1, 2011, application for staff privileges, were to be redacted and (2) any patient identifying information contained in the applications within
¶ 7 SIHS filed a petition for leave to appeal in this court, which we allowed.
DISCUSSION
¶ 8 In its appeal before this court, SIHS has limited its challenge to the discovery order with regard to Group Exhibit F. SIHS now contends that Group Exhibit F, which consists of Dr. Dressen‘s three applications for staff privileges, is nondiscoverable in its entirety pursuant to
¶ 9 As an alternative argument, SIHS maintains that, if this court should find that Group Exhibit F is not privileged in its entirety, we should find that certain materials or information within Group Exhibit F must be redacted. Specifically, SIHS maintains: (1) any references in the applications to information reported to the National Practitioner Data Bank (NPDB) must be redacted because it is privileged under
Standard of Review
¶ 10 Initially, we must determine the appropriate standard of review. As we explained in Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001), although a trial court‘s order compelling discovery is ordinarily reviewed for a manifest abuse of discretion, the proper standard of review will depend on the question that was answered in the trial court. See also D.C. v. S.A., 178 Ill. 2d 551, 559 (1997). If the facts are uncontroverted and the issue is the lower court‘s application of the law to the facts, a court of review may determine the correctness of the ruling independently of the lower court‘s judgments. Norskog, 197 Ill. 2d at 70-71; Doe v. Township High School District 211, 2015 IL App (1st) 140857, ¶ 74. Where, as here, the defendant challenges an order compelling discovery of information that the defendant believes to be subject to a statutory discovery privilege, the question is one of statutory construction, which is purely a question of law. Norskog, 197 Ill. 2d at 71; Doe, 2015 IL App (1st) 140857, ¶ 74. Accordingly, in the case at bar, we review de novo the lower court‘s determination that no
¶ 11 When construing the statutory provisions relied on here, we are guided by familiar principles. Our primary objective must be to ascertain and give effect to the intent of the legislature. See General Motors Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 13 (2007). The most reliable indicator of legislative intent is the language of the statute, given its plain, ordinary, and popularly understood meaning. Blum v. Koster, 235 Ill. 2d 21, 29 (2009). If the language is clear and unambiguous, the statute must be given effect as written, without resort to further aids of statutory construction. Krautsack v. Anderson, 223 Ill. 2d 541, 553 (2006). It must also be presumed that the legislature did not intend absurdity, inconvenience or injustice. Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 40 (2001).
¶ 12 It should be noted, as well, that privileges are designed to protect interests outside the truth-seeking process and, as a result, should be strictly construed as exceptions to the general duty to disclose. Martinez v. Pfizer Laboratories Division, 216 Ill. App. 3d 360 (1991). “[O]ne who claims to be exempt by reason of privilege from the general rule which compels all persons to disclose the truth has the burden of showing the facts which give rise to the privilege. ‘[A] mere assertion that the matter is confidential and privileged will not suffice.’ ” Cox v. Yellow Cab Co., 61 Ill. 2d 416, 419-20 (1975) (quoting Krupp v. Chicago Transit Authority, 8 Ill. 2d 37, 42 (1956)).
Whether Group Exhibit F Is Privileged in Its Entirety
¶ 13 As set forth above, Group Exhibit F contains three applications for staff privileges that Dr. Dressen submitted to SIHS. Dr. Dressen‘s initial application to SIHS was submitted on February 19, 2009. Thereafter, to maintain his staff privileges, he submitted applications for recredentialing on August 13, 2010, and December 1, 2011. SIHS contends that all three applications for staff privileges, which make up Group Exhibit F, are privileged in their entirety, pursuant to
“(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.”
410 ILCS 517/15(h) (West 2012).
¶ 14 The appellate court held that the plain language of
¶ 15 The appellate court also declined to follow the rationale in TTX Co., 295 Ill. App. 3d at 555, and concluded that, to create a privilege, the plain language of the statute must explicitly state that the information that is confidential is also privileged, nondiscoverable, or inadmissible. Id. ¶¶ 19-20. We agree.
¶ 16 The Credentials Act was enacted in 1999. Pub. Act 91-602 (eff. Aug. 16, 1999). The Act provided for the formation of a Health Care Credentials Council, which would collaborate with the Department of Public Health to create “uniform health care and hospital credentials forms.”1
¶ 17 In Davis v. Kewanee Hospital, 2014 IL App (2d) 130304, ¶ 48, the court explained that the purpose of the Credentials Act is to standardize and regulate the collection of credentials data to ensure that health care entities correctly assess and validate health care professionals’ qualifications. The Davis court noted that the Credentials Act streamlines the process of credentialing and recredentialing by requiring health care entities to use a “uniform” form and that, since January 1, 2002, the uniform data credentials form is the only information a health care professional need submit to a hospital when applying for staff privileges. Id. ¶ 46. See also
¶ 18 According to SIHS, whenever a physician seeks staff privileges at its hospitals, the physician submits an application, utilizing the mandated Illinois uniform data credentials form, to the System Credentialing Committee, which is a standing committee of the hospital. Once the System Credentialing Committee receives the application, it gathers information from various sources to verify the information contained in the application. The application and verifying materials are then forwarded, along with a recommendation by the System Credentialing Committee, to the Medical Executive Committee, which reviews the recommendation and materials. The Medical Executive Committee, in turn, sends its
¶ 19 SIHS argues that the appellate court erred in the present case when it found that
¶ 20 We disagree with SIHS‘s premise that information which is confidential is implicitly privileged. The Webster‘s Third New International Dictionary defines “confidential” as “known only to a limited few : not publicly disseminated.” Webster‘s Third New International Dictionary 476 (1986). Thus, 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. See People ex rel. Illinois Judicial Inquiry Board v. Hartel, 72 Ill. 2d 225, 236 (1978). 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.’ ” University of Pennsylvania v. Equal Employment Opportunity Comm‘n, 493 U.S. 182, 189 (1990) (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). 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.
¶ 21 SIHS‘s reliance on TTX is misplaced. TTX involved a tax dispute. After conducting an audit of TTX, the Department of Revenue notified TTX that it should have used the “three-factor formula” in determining its tax liability. The Department then issued a Notice of Deficiency to TTX and assessed a penalty. TTX filed a complaint, alleging that it had properly applied the single factor transportation formula. It obtained a discovery order requiring the Department to identify every taxpayer who had apportioned income to Illinois using the single factor transportation formula during the audit period. The Department refused to comply with the order and was held in contempt. The Department then appealed, arguing that the evidence was confidential pursuant to
¶ 22 On appeal, the TTX court held, “In the absence of a statutory exception to the confidentiality rule, permitting disclosure of tax return information pursuant to the discovery order would violate the explicit prohibition of such disclosures as stated in [the statute].” TTX, 295 Ill. App. 3d at 556. However, the TTX court did not rely solely on the confidentiality provision in the tax statute to deny discovery. The court also held that the evidence sought in the discovery order was “irrelevant to the issues presented.” Id. at 557. The TTX court held, “Whether other companies unrelated to TTX calculated their income taxes as transportation companies, and whether they were audited for doing so, is irrelevant to the issue of whether TTX should be designated a transportation company for income tax purposes. The relevant
¶ 23 We agree with the lower courts that TTX is inapposite to our case. Here, plaintiffs filed a complaint against SIHS for negligent credentialing. Clearly, information contained in Group Exhibit F, the only materials which, by statute, SIHS was required to consider in determining whether to credential and recredential Dr. Dressen, would be highly relevant to the cause of action. In fact, we fail to see how a cause of action for negligent credentialing could proceed if we were to deny plaintiffs access to this information.
¶ 24 Certainly, it is true that when the plain language of a statute creates a privilege, the information may not be disclosed, regardless of its relevance. In these situations, however, the statutory privilege is an indication that the legislature has determined that other “interests outside the truth-seeking process” must be protected. Martinez, 216 Ill. App. 3d at 367. Here, however, we do not believe that SIHS has demonstrated how interpreting the confidentiality provision in
¶ 25 In its reply brief, SIHS contends that the appellate court erred in its interpretation of
¶ 26 In Frigo v. Silver Cross Hospital & Medical Center, 377 Ill. App. 3d 43 (2007), Silver Cross argued that the trial court should have barred plaintiff from introducing evidence in its negligent credentialing case about what Silver Cross‘s credentials committee reviewed because that information was privileged under
¶ 27 In his applications for staff privileges, Dr. Dressen provided SIHS with information concerning reports which were made to the NPDB, as required by law. See
¶ 28 The appellate court held that, although section 11137 provides that information reported under the act is considered confidential, the provision also states that “[n]othing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure.”
¶ 29 We agree with the appellate court that references in Dr. Dressen‘s applications to material reported to the NPDB are not privileged. The Health Care Quality Improvement Act provides in section 11137(a):
“The Secretary (or the agency designated under section 11134(b) of this title) shall, upon request, provide information reported under this subchapter with respect to a physician or other licensed health care practitioner to State licensing boards, to hospitals, and to other health care entities (including health maintenance organizations) that have entered (or may be entering) into an employment or affiliation relationship with the physician or practitioner or to which the physician or practitioner has applied for clinical privileges or appointment to the medical staff.”
42 U.S.C. § 11137(a) (2012).
¶ 30 Pursuant to the Code of Federal Regulations, hospitals are not only permitted to request information concerning a health care practitioner from the NPDB, they are required to do so whenever the “health care practitioner applies for a position on its medical staff (courtesy or otherwise) or for clinical privileges at the hospital“; and must reinquire “[e]very 2 years for any health care practitioner who is on its medical staff (courtesy or otherwise) or has clinical privileges at the hospital.”
Information Regarding Treatment of Nonparties
¶ 32 SIHS‘s final claim is that information in Dr. Dressen‘s applications 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
¶ 33 In the appellate court, SIHS argued that nonparty medical information should be redacted because it was privileged pursuant to the Health Insurance Portability and Accountability Act (HIPAA) (
¶ 34 SIHS now contends that the Illinois physician-patient privilege is broader than HIPAA and should be applied to require the redaction of all references to medical care and treatment rendered to nonparties. SIHS admits that this argument is being raised for the first time before this court.
¶ 35 Because SIHS never relied on the physician-patient privilege in the courts below, their argument may be deemed forfeited. Of course, forfeiture is a limitation on the parties and not on this court and, as we noted in O‘Casek v. Children‘s Home & Aid Society of Illinois, 229 Ill. 2d 421, 438 (2008), we may overlook any forfeiture in the interest of maintaining a sound and uniform body of precedent. See also Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 121 (2004).
¶ 36 Regardless of whether SIHS‘s claim is forfeited, we find that it is without merit. 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 (In re D.H., 319 Ill. App. 3d 771, 776 (2001)), plaintiffs here are not seeking the medical records of nonparties. The applications only contain information regarding the medical treatment provided and procedures performed by Dr. Dressen at SIHS hospitals. Individual patient identifiers have either not been included or have already been redacted pursuant to the appellate court‘s judgment, as explained above. The cases cited by SIHS are inapposite.
CONCLUSION
¶ 37 For the reasons stated above, we affirm the appellate court‘s judgment. SIHS must comply with the circuit court‘s discovery order to produce Group Exhibit F, as modified by the appellate court. We also affirm the appellate court‘s order vacating the order of contempt and the monetary penalty imposed. We remand the matter to the circuit court for further proceedings.
Appellate court judgment affirmed.
Cause remanded.
JUSTICE BURKE
Supreme Court of Illinois