Security Consultant Reports Are Not Protected By The Medical Studies Act

By Kathleen M. Klein

Introduction 

In a case brought on behalf of an active shooter victim against a hospital, the Illinois Appellate Court, First District recently considered whether the Medical Studies Act protects a consultant report developed by a hospital consultant following an active shooter incident. The opinion further crystallizes the boundary around the MSA privilege in Illinois and demonstrates how facilities can help avoid production of consultant reports. Less v. Mercy Hospital and Medical Center, et al., 2022 IL App (1st) 220247.

Facts 

Plaintiff’s decedent was killed by an active shooter at the defendant hospital. Following the incident, the hospital retained two consultants, Sako and Carmen, to assess whether safety improvements could be made at the hospital. Both wrote reports. Subsequently, Plaintiff filed suit, alleging various negligent security theories. The hospital withheld both reports in the litigation, citing privilege under the Medical Studies Act.

Analysis 

Application Of The Medical Studies Act To Patient Safety And Security

This opinion continues the Court’s strong efforts to limit the reach of the Medical Studies Act to medical malpractice issues. In the past, courts have rejected claims of privilege under the Medical Studies Act for documents it found not related to patient care; for example, in a patient-on-patient assault, Giangiulio v. Ingalls Memorial Hospital, 365 Ill. App. 3d 823 (2006), and in a patient fall down stairs, Dunkin v. Silver Cross Hospital, 215 Ill. App. 3d 65 (1991).

In this case, the Appellate Court analyzed the reports and the factual record against the requirements of the Medical Studies Act, focusing on whether the reports were used for one of the purposes specified in the Act. The privilege applies where documents are “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 or increasing organ and tissue donation.” The Court held that the Act refers only to activities related to “improving patient care,” and that this did not include security reviews, hospital security, or safety. “Morbidity and mortality,” as used in the statute, refers to the context of medical care, not security. Thus, as in the Giangiulio and Dunkin cases, the report was discoverable and had to be produced.

Learning Point: Protecting outside consultants’ reports from discovery

Less offers a broader practice pointer for healthcare facilities: litigation privilege is a more viable, though still difficult, path to privilege over non-patient care consultants’ reports.

In this case, the hospital itself initially retained consultant Sako. The next day, defense counsel retained Sako as an expert consultant in the lawsuit. Though the hospital attempted to characterize Sako as a nontestifying consultant, the Court noted that Sako was retained by the hospital committee initially, and only retained the next day by defense counsel. His report reflected only interactions with hospital staff, not with counsel. Thus, the Court drew a distinction between his expert work for counsel, which would be privileged, and his consultative work for the hospital, which was not. The Court found the report was part of his consultative work, and thus found the report not privileged.

This opinion reinforces that healthcare facilities cannot rely on the Medical Studies Act for protection over their consultants’ reports about operations and safety practices, whether or not those practices affect patients. Had Sako been retained solely by defense counsel, rather than first by the hospital, and had defense counsel been involved in developing or carrying out the investigation, it is possible that this holding might have been different. 

Where a significant injury or fatality occurs within a medical facility that does not arise directly out of medical care, the facility may wish to conduct an internal review, or bring in a consultant to evaluate their applicable procedures, as the hospital did in this case. This could occur outside the rare active shooter incident-for example, a premises-type incident might require an engineer, or an assault might warrant advice on security. If suit has not been filed, the hospital has the option to retain counsel to provide pre-suit advice, and to participate in the conduct of the review by the consultant, thus supporting an eventual claim of privilege. Counsel can advise the consultant and facility alike as to materials to include within the report, to strengthen a claim of privilege on future in camera review, and also advise as to anything potentially nonprivileged along the way. If suit has been filed, the absence of a 2-622 affidavit of merit attached to the complaint may indicate a case alleging non-medical negligence and should prompt caution by the facility in conducting any internal review. Best practice to protect such a review would be the involvement of defense counsel as soon as possible.