Karen Kidd Feb. 3, 2016, 10:56pm

As health care workers and litigants carefully study a recent Illinois Supreme Court ruling that physician credentialing is subject to discovery, an attorney who represents medical professionals advised studying what the decision didn't change.

"It is important to recognize what the Klaine decision does not do," Jerrod L. Barenbaum, a partner with Hinshaw & Culbertson in Rockford, said. "It does not change the scope of the privilege created by the Medical Studies Act, and it does not make anything discoverable in litigation that was not previously discoverable."

In that light, Barenbaum said, not everything changed when the high court issued its ruling in Klaine v. Southern Illinois Hospital Services in January. For example, a physician's hospital privileges application is not generally protected from discovery, though there may be information in that application that is otherwise protected from discovery during litigation, Barenbaum said. That includes medical information, mental health information, or third party personally identifiable health information, he said.

"That type of information would likely be redacted from an application and not be subject to discovery even where an application is otherwise discoverable," Barenbaum said.

In its ruling, the Supreme Count affirmed a decision from the Illinois Fifth District Appellate Court that a number of physician credentialing documents should be produced during litigation of a case. The hospital had made various claims of privilege in reference to those documents.

The high court found those claims to be without merit, Justice Anne Marie Burke wrote in the court's opinion on the case. 

"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, plaintiffs here are not seeking the medical records of nonparties," Burke wrote in the opinion.

"The applications only contain information regarding the medical treatment provided and procedures performed by (a doctor.) Individual patient identifiers have either not been included or have already been redacted pursuant to the appellate court’s judgment."

The case was remanded to circuit court for further proceedings.

Much of the Supreme Court's ruling in this case falls very much in line with present privilege and discovery rules, Barenbaum said. 

"Typically, hospitals have relied on the Illinois Medical Studies Act to protect as privileged peer review activities like credentialing physicians," Barenbaum said. "Under the Medical Studies Act, physician applications for privileges, which are received before the peer review process begins, have traditionally been considered outside the applicable privilege and thus not protected."

In the Klaine case, Southern Illinois Hospital Services sought another way to privilege a physician's application, based on confidentiality provisions in the Health Care Professional Credentials Data Collection Act .

"The court held that that act does not create a privilege that would make the application confidential," Barenbaum said. "In my opinion, the decision does not substantively change the scope of materials that are confidential, since the applications have not historically been protected under the Medical Studies Act. The court simply determined that it would not recognize a new privilege that would be broad enough to now protect applications."

Barenbaum added that the only "risks" hospitals and physicians face in light of the Supreme Court's decision is that information in credential applications is likely discoverable during litigation where the application is otherwise relevant. That, Barenbaum said, is not a new risk. 

"There is not much room for adjustment of policies to address this risk, as the applications consist of a mandatory form as proscribed by the Illinois Department of Health under the Illinois Data Collection Act," Barenbaum said.

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Organizations in this Story

Hinshaw & Culbertson LLP
100 South Main St., Suite 102
Rockford, IL 61105-1389

Illinois Supreme Court
200 E Capitol Ave
Springfield, IL 62701

Illinois Fifth District Appellate Court
S 14th St
Mt Vernon, IL 62864

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