In a recent DuPage County case (Kopolovich v. Shah, 2012 ILL App (2d) 110383), an anesthesiologist wrote a memorandum to several board members of a day surgery center stating that a surgery in which he participated differed from what was consented to by the patient and what was listed on the OR schedule. He alleged that the surgeon was “deceptive” and “unethical” in performing a full abdominoplasty (“tummy tuck”) instead of a hernia repair, excision and revision to correct an abdominal wall deformity.  An investigation ensued and was not resolved.  The surgeon sued the anesthesiologist and surgery center for Defamation and False Light Invasion of Privacy.

The anesthesiologist/defendant argued that the Medical Studies Act applied to the memorandum because he circulated it to the board only and because it dealt with matters of Quality Control.

Traditionally the Medical Studies Act has been relied upon by hospitals to protect Peer Review documents from disclosure. The purpose of the Act is not to shield hospitals from liability, but to insure that physicians will engage in effective examination of their peers in order to advance quality of healthcare. Illinois courts have consistently held that a Peer Review Committee document is privileged only if it is “initiated, created, prepared or generated by” a Peer Review Committee.  Thus, a document generated before the Committee is engaged in reviewing an incident will not be deemed privileged.

The court rejected the anesthesiologist’s argument that the memo was protected. It found that as there was no Peer Review or Quality Control Committee investigating the incident before the memo was written, it did not qualify as privileged under the Act. Also, the anesthesiologist was not a member of any Peer Review or Quality Control Committee and, therefore, the memo could not have been “initiated, created prepared or generated by” a Peer Review or Quality Control Committee. In its very strict interpretation of the statute, the Court found that “even when the content of the communication is in harmony with the promotion of internal quality control and improving patient care, the communication is not privileged under the Act when it is not generated by a Committee of the type described by the Statute.” The memo was not considered privileged and the plaintiff surgeon was able to proceed with his case for Defamation and False Light Invasion of Privacy. ■

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Mary M. Cunningham has practiced medical malpractice defense with Kominiarek Bresler Harvick & Gudmundson, LLC for over 23 years. Mary is a member of the Illinois State Bar Association and the Society of Trial Lawyers. She has lectured frequently at local hospital Grand Round Seminars for physicians and residents on legal topics related to surgery, anesthesia and ophthalmology. She can be reached atmcunningham@kbhglaw.com