Klaine v. Southern Illinois Hospital Services , 2016 IL 118217 ( 2016 )

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Supreme Court Date: 2016.02.29
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Klaine v. Southern Illinois Hospital Services, 2016 IL 118217
Caption in Supreme CAROL KLAINE et al., Appellees, v. SOUTHERN ILLINOIS
Court: HOSPITAL SERVICES, d/b/a Memorial Hospital of Carbondale and
St. Joseph Memorial Hospital, Appellant.
Docket No. 118217
Filed January 22, 2016
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that
Review court on appeal from the Circuit Court of Williamson County, the
Hon. Brad Bleyer, Judge, presiding.
Judgment Appellate court judgment affirmed.
Cause remanded.
Counsel on Kara L. Jones, of Feirich/Mager/Green/Ryan, of Carbondale, for
Appeal 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.
Justices JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
Karmeier, and Theis concurred in the judgment and opinion.
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.
¶2 BACKGROUND
¶3 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.
¶4 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 Illinois Supreme Court Rule 201(n) (eff. July 1, 2014), asserting
that the withheld documents were privileged pursuant to, inter alia, the Medical Studies Act
(735 ILCS 5/8-2101 (West 2012)) and the Health Care Professional Credentials Data
Collection Act (Credentials Act) (410 ILCS 517/1 et seq. (West 2012)).
¶5 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.
¶6 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 Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010).
¶7 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
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Group Exhibit F or in the Surgeon Case Histories contained in Group Exhibit J were to be
redacted to the extent required by section 164.512(e) of the Code of Federal Regulations (45
C.F.R. § 164.512(e) (2012)). 2014 IL App (5th) 130356, ¶ 43. The appellate court then
remanded the matter to the circuit court for further proceedings. Id.
¶8 SIHS filed a petition for leave to appeal in this court, which we allowed. Ill. S. Ct. R. 315
(eff. Jan. 1, 2015). We permitted the Illinois State Medical Society, the Illinois Hospital
Association, the Illinois Academy of Physician Assistants, the Illinois Podiatric Medical
Association, and the Illinois Association of Orthopaedic Surgeons to file a joint amicus curiae
brief in support of SIHS. Also, we permitted the Illinois Trial Lawyers Association to file an
amicus curiae brief in support of plaintiffs.
¶9 DISCUSSION
¶ 10 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
section 15(h) of the Credentials Act, which provides that all “credentials data collected or
obtained by the *** hospital shall be confidential.” 410 ILCS 517/15(h) (West 2012). SIHS
also contends that the appellate court’s judgment in this case conflicts with the judgment in
TTX Co. v. Whitley, 295 Ill. App. 3d 548, 556 (1998), wherein the court interpreted a
confidentiality provision similar to the one here and held that confidential materials were
privileged and could not be disclosed.
¶ 11 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 section 11137 of the Health Care Quality
Improvement Act of 1986 (42 U.S.C. § 11137(a) (2012)) and (2) information concerning
medical treatment provided by Dr. Dressen to patients who are not party to this lawsuit must be
redacted because it is privileged under the Credentials Act and/or the physician-patient
privilege.
¶ 12 Standard of Review
¶ 13 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
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statutory discovery privilege exists that would prevent the disclosure of the three applications
for staff privileges which Dr. Dressen submitted to SIHS or any specific documents or
materials contained within.
¶ 14 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).
¶ 15 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)).
¶ 16 Whether Group Exhibit F Is Privileged in Its Entirety
¶ 17 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 section 15(h) of the Credentials Act, which provides:
“(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).
¶ 18 The appellate court held that the plain language of section 15(h) of the Credentials Act does
not create a privilege against discovery for applications for staff privileges. 2014 IL App (5th)
130356, ¶ 20. Although the statute provides that credentials data collected or obtained by a
hospital is “confidential, as provided by law,” the appellate court held that confidentiality,
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discoverability, and admissibility are distinct concepts. The court then drew a distinction
between information which is “confidential” and information which is “privileged” and,
therefore, nondiscoverable and inadmissible. 2014 IL App (5th) 130356, ¶ 18. Further,
recognizing that privileges are strongly disfavored, the appellate court held “there is no general
principle under Illinois law that provides that information that is otherwise discoverable is
privileged because it is confidential.” Id. ¶ 17 (citing People ex rel. Birkett v. City of Chicago,
292 Ill. App. 3d 745, 753 (1997)). Comparing the language in section 15(h) of the Credentials
Act with the language in sections 8-2101 and 8-2102 of the Medical Studies Act, the court
further held that “where the legislature has intended to create a privilege, it has done so
explicitly.” Id. ¶ 18.
¶ 19 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.
¶ 20 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.”1 410 ILCS 517/10, 15 (West 2012). These forms, when completed by the health care
professional, would contain all of the credentials data commonly requested by a health care
agency or hospital for purposes of credentialing or recredentialing a health care professional.
410 ILCS 517/15(a)(3), (4) (West 2012). Section 5 of the Credentials Act defines
“[c]redentials data” as “those data, information, or answers to questions required by a health
care entity, health care plan, or hospital to complete the credentialing or recredentialing of a
health care professional” and “[c]redentialing” as “the process of assessing and validating the
qualifications of a health care professional.” 410 ILCS 517/5 (West 2012).
¶ 21 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
410 ILCS 517/15(a), (e) (West 2012).
¶ 22 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
1
The Council’s sole purpose was to assist in the formation of the uniform forms. Accordingly, the
Act also provided that the Council would automatically be abolished on July 1, 2003.
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recommendation to the Board of Trustees, which has the final say on whether the application
for staff privileges will be granted.
¶ 23 SIHS argues that the appellate court erred in the present case when it found that section
15(h) of the Credentials Act does not explicitly create a privilege against discovery of a
physician’s application for staff privileges. SIHS argues that because section 15(h) of the
Credentials Act provides that all credentials data collected or obtained by a hospital are
confidential and may not be disclosed, the legislature explicitly indicated that applications for
staff privileges are privileged and nondiscoverable. In support of their position, SIHS relies on
the decision in TTX for the proposition that the legislature’s use of the term “confidential”
implies nondiscoverability and nonadmissibility.
¶ 24 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.
¶ 25 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 section 917(a) of the Illinois Income Tax Act and was not relevant
to the issue before the court.
¶ 26 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
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question is not whether TTX was treated differently from other companies or whether the
Department is interpreting correctly section 304 with regard to other companies.” Id.
¶ 27 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.
¶ 28 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 section 15(h) as creating a blanket privilege against the discovery of the data
contained in Group Exhibit F would advance other interests outside the truth-seeking process.
¶ 29 In its reply brief, SIHS contends that the appellate court erred in its interpretation of section
15(h) because it failed to consider both the Credentials Act and the Medical Studies Act “as a
whole and in pari materia.” Again, we must disagree.
¶ 30 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 sections 8-2101 and 8-2102 of the Medical
Studies Act. 735 ILCS 5/8-2101, 8-2102 (West 2000). Sections 8-2101 and 8-2102 of the
Medical Studies Act provide, in pertinent part, that all information used in the course of
internal quality control is “privileged,” “strictly confidential” and “shall not be admissible as
evidence, nor discoverable in any action of any kind in any court or before any tribunal, board,
agency or person.” 735 ILCS 5/8-2101, 8-2102 (West 2012). The Frigo court acknowledged
that “[t]he purpose of the [Medical Studies Act] is to ensure that members of the medical
profession can maintain effective professional self-evaluation and to improve the quality of
healthcare.” (Internal quotation marks omitted.) Frigo, 377 Ill. App. 3d at 65. Nonetheless, the
court held that “not every piece of information a hospital staff acquires is nondiscoverable,
even if it is acquired by a peer-review committee.” (Internal quotation marks omitted.) Id. The
court concluded that the information sought by plaintiff in his negligent credentialing case
against Silver Cross was not privileged because “[t]he Act was ‘never intended to shield
hospitals from potential liability.’ Webb [v. Mount Sinai Hospital & Medical Center of
Chicago, Inc.], 347 Ill. App. 3d [817,] 825 [(2004)], quoting Roach [v. Springfield Clinic], 157
Ill. 2d [29,] 42 [(1993)]. We believe that if this court made such an expansive reading of the
Act, it would eliminate actions against hospitals for institutional negligence.” (Internal
quotation marks omitted.) Id. at 66. Accordingly, reading the Credentials Act and the Medical
Studies Act in pari materia does not lead us to a different result. Thus, for all of the reasons set
forth above, we find that Group Exhibit F is not privileged in its entirety pursuant to section
15(h) of the Credentials Act. Having reached this conclusion, we must now consider whether
any materials within Group Exhibit F are privileged and must be redacted.
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¶ 31 Information Reported to the National Practitioner Data Bank
¶ 32 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 45 C.F.R. § 60.1
et seq. (2013). SIHS argues that this information is privileged pursuant to section 11137(b)(1)
of the Health Care Quality Improvement Act, which provides that “[i]nformation reported
under this subchapter is considered confidential.” 42 U.S.C. § 11137(b)(1) (2012). SIHS cites
no cases in which section 11137 has been applied to prevent the discovery of information
reported to the NPDB and, again, relies only on the “confidential” designation within the
provision.
¶ 33 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.” 42 U.S.C. § 11137(b)(1)
(2012). The appellate court held that, under Illinois discovery rules, the defendant would be
“authorized, and *** in fact, required,” to produce this information with respect to the
plaintiffs’ negligent credentialing claim. 2014 IL App (5th) 130356, ¶ 27.
¶ 34 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).
¶ 35 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.” 45 C.F.R. § 60.17(a)(1), (2) (2013). In addition, section
60.18(a)(1)(v) of the Code provides that the NPDB may provide information, upon request, to
“[a]n attorney, or individual representing himself or herself, who has filed a medical
malpractice action or claim in a state or Federal court or other adjudicative body against a
hospital, and who requests information regarding a specific health care practitioner who is also
named in the action or claim.” Id. § 60.18(a)(1)(v). The NPDB will release the information it
possesses regarding a particular health care provider directly to the attorney or individual
representing himself or herself, “upon the submission of evidence that the hospital failed to
request information from the NPDB, as required by § 60.17(a) of this part.” The information
may then be used “solely with respect to litigation resulting from the action or claim against the
hospital.” Id.
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¶ 36 Reading the confidentiality provision in paragraph (b) of section 11137 of the Health Care
Quality Improvement Act in conjunction with the Code of Federal Regulations, we believe it is
clear that information reported to the NPDB, though confidential, is not privileged from
discovery in instances where, as here, a lawsuit has been filed against the hospital and the
hospital’s knowledge of information regarding the physician’s competence is at issue.
¶ 37 Information Regarding Treatment of Nonparties
¶ 38 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 section 15(h) of the Health Care Credential Data Collection
Act and Illinois’s physician-patient privilege, as codified in 735 ILCS 5/8-802 (West 2012).
We have already held that the confidentiality provision in section 15(h) does not create a
privilege and need not consider this claim further. Consequently, we are left with SIHS’s claim
that information regarding medical treatment provided to nonparties is privileged pursuant to
Illinois’s physician-patient privilege.
¶ 39 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) (42 U.S.C. § 1320d et seq. (2012)). The appellate court refused defendant’s request
to redact nonparty medical information, noting that, for the most part, the information in the
applications contained no “individually identifiable health information” and, therefore, was
not protected by HIPAA. (Internal quotation marks omitted.) 2014 IL App (5th) 130356, ¶ 29.
In addition, the appellate court noted that there are certain provisions in HIPAA (see, e.g., 45
C.F.R. § 164.512 (2012)) that permit the disclosure of protected health information for judicial
and administrative hearings if there is a court order or a qualified protective order. Therefore,
the court denied SIHS’s request but directed plaintiffs to follow the provisions of HIPAA
regarding disclosure of information containing identifying information.
¶ 40 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.
¶ 41 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).
¶ 42 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.
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Consequently, we are offered no basis (and our research can find none) for holding that a
physician-patient privilege applies to raw data regarding treatment and procedures performed
by Dr. Dressen.
¶ 43 CONCLUSION
¶ 44 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.
¶ 45 Appellate court judgment affirmed.
¶ 46 Cause remanded.
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