March 29, 2017

Illinois nursing homes must produce investigation records of a resident incident unless the facility’s Quality Assurance Committee directed the investigation, according to a new Illinois Appellate Court case.

In Lindsey v. Butterfield Health Care II, Inc., the Illinois Appellate Court in DuPage County held that neither the Medical Studies Act nor the Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act (the Quality Assurance Act) allowed the nursing home to withhold from discovery in a personal injury case contemporaneous clinical records regarding a resident injury, despite the fact that those contemporaneous records were subsequently provided to the facility’s Quality Assurance Committee.

The court held that under the Quality Assurance Act, proceedings and communications of a peer-review or quality assessment and assurance committee at a skilled nursing facility are privileged and confidential, but that investigations not directed by the Quality Assurance Committee can be discovered and used in a civil case. The court noted that the Quality Assurance Act contains language similar to that in the Medical Studies Act, which governs hospitals. The purpose of both laws, the Court said, is to encourage candid and voluntary studies and programs to improve patient care, and are both premised on the idea that without a statutory peer-review privilege, caregivers would be reluctant to serve on a peer-review or quality assurance committee and engage in frank evaluations of their colleagues.

A key factor in the Lindsey analysis is the fact that neither the Medical Studies Act nor the Quality Assurance Act protects a provider against disclosure of information generated before the peer-review or quality assurance process begins. The Lindsey court, citing an Illinois Supreme Court decision interpreting the Medical Studies Act governing hospitals, noted that in that case, the Supreme Court held that where a hospital peer-review committee is composed of the hospital’s medical staff, the committee must be involved in the peer-review process before the privilege will attach. The rationale was simple: the Supreme Court held that if the simple act of furnishing a committee with earlier-acquired and generated information was enough to cloak that information with the statutory privilege, then a hospital could effectively withhold from disclosure all adverse facts known to its medical staff, with the exception of those matters actually contained in a patient’s records. 

The Lindsey court applied this same logic to the Quality Assurance Act governing skilled nursing facilities. The facility contended that its internal investigation reports prepared for the Quality Assurance Committee were privileged from disclosure under the Quality Assurance Act governing nursing homes. But the Lindsey court held that only documents initiated, created, prepared, or generated by the facility’s Quality Assurance Committee were privileged from disclosure, and that the documents created in the ordinary course of the nursing home’s business or for later corrective action by the nursing home were not privileged. 

Any skilled nursing facility that believes a resident injury is likely to result in a lawsuit, and which wishes to withhold its internal investigation under the Quality Assurance Act, should therefore immediately convene a meeting of its Quality Assurance Committee. That committee should conduct and oversee the investigation of the incident, including all employee interviews. Any investigation or interview notes regarding such an incident generated by staff before the QA committee meets will be subject to discovery by the plaintiff in a civil case.

Keep in mind, however, that federal and state laws require a skilled nursing facility to investigate certain resident incidents, and make such investigations available to the surveyors upon request. Disclosing to the surveyors any documents generated at the Quality Assurance Committee’s direction does not waive the facility’s ability to claim that those documents are not subject to discovery or use in a civil proceeding, such as a personal injury lawsuit, however, because the Quality Assurance Act expressly protects such documents from discovery or use as evidence in such a civil case. 

Please contact your Much Shelist attorney for more information on the impact of the Illinois Appellate Court’s decision regarding privilege and the confidentiality of documents related to the investigation of incidents involving nursing home residents. 

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.