Doe v. Illinois Masonic Medical Center

FIRST DIVISION
June 1, 1998

No. 1-96-4072

JANE DOE and JOHN DOE, Indiv. and as
Parents and Next Friends of Baby Girl
Doe, a Minor,

Plaintiffs-Appellees,

v.

ILLINOIS MASONIC MEDICAL CENTER, YURY
VERLINSKY, CHARLES M. STROM, MELODY ANN
WHITE, and AARON S. LIFCHEZ,

Defendants-Appellants.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

Honorable
Susan F. Zwick,
Judge Presiding.


JUSTICE GALLAGHER delivered the opinion of the court:
This case comes to us on interlocutory appeal pursuant to
Supreme Court Rule 308 (155 Ill. 2d R. 308), and we respond to
the following certified question:
"Whether the Institutional Review Board ('IRB') of
the Illinois Masonic Medical Center, a duly constituted
committee of the medical staff, is protected from
disclosing and producing to plaintiffs the documents
submitted for an in camera inspection to the Circuit
Court of Cook County, including the entire file of the
IRB and minutes from its meetings under: a) the peer
review provisions, and b) the 'medical study'
provisions of the Medical Studies Act. 735 ILCS 5/8-
2101 (1996)."
We answer the question in the affirmative and reverse.
Defendant, Illinois Masonic Medical Center, had a research
program designed to reduce the incidence of cystic fibrosis. The
program involved a preimplantation genetic procedure whereby
several ova would be removed from a female patient and tested for
the cystic fibrosis gene. Only the healthy ova not containing
the gene were to be fertilized and the resulting disease-free
embryos would be implanted in the female patient.
Plaintiffs, Jane Doe and John Doe, are the parents of Baby
Girl Doe, a child born with cystic fibrosis, after Jane Doe went
through the above procedure. The Does have an older son with
cystic fibrosis, which is why they originally sought the
preimplantation genetic testing from defendants. This was still
an experimental procedure and if it had been successful, Baby
Girl Doe would have been the first child in the world born
without cystic fibrosis under this research program.
The Does filed suit against multiple defendants and
requested production of all of the documents relative to the
preimplantation genetic testing procedure, including protocols,
submitted to the Institutional Review Board, as well as the
protocol finally approved by the IRB. Defendants objected,
asserting that the requested documents were privileged under the
Medical Studies Act. 735 ILCS 5/8-2101 (West 1996). After
conducting an in camera inspection of the requested documents,
the trial court ordered the defendants to produce most of the
documents. The trial court subsequently granted defendants'
motion for certification of the issue and this court granted
their application for interlocutory appeal pursuant to Supreme
Court Rule 308 (155 Ill. 2d R. 308). The Illinois Hospital and
HealthSystems Association was allowed to file its amicus curiae
brief urging this court to reverse the trial court's order to
disclose the documents.
This case involves the interpretation and application of the
Medical Studies Act, which, at all times relevant, provided as
follows:
" 8-2101. Information obtained. All
information, interviews, reports, statements,
memoranda, recommendations, letters of reference or
other third party confidential assessments of a health
care practitioner's professional competence, or other
data of the Illinois Department of Public Health, local
health departments, the Illinois Department of Mental
Health and Developmental Disabilities, the Mental
Health and Developmental Disabilities Medical Review
Board, Illinois State Medical Society, allied medical
societies, health maintenance organizations, medical
organizations under contract with health maintenance
organizations or with insurance or other health care
delivery entities or facilities, tissue banks, organ
procurement agencies, physician-owned inter-insurance
exchanges and their agents, committees of ambulatory
surgical treatment centers or post-surgical recovery
centers or their medical staffs, or committees of
licensed or accredited hospitals or their medical
staffs, including Patient Care Audit Committees,
Medical Care Evaluation Committees, Utilization Review
Committees, Credential Committees and Executive
Committees, or their designees (but not the medical
records pertaining to the patient), 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, shall be privileged, strictly confidential
and shall be used only for medical research, increasing
organ and tissue donation, the evaluation and
improvement of quality care, or granting, limiting or
revoking staff privileges or agreements for services,
except that in any health maintenance organization
proceeding to decide upon a physician's services or any
hospital or ambulatory surgical treatment center
proceeding to decide upon a physician's staff
privileges, or in any judicial review of either, the
claim of confidentiality shall not be invoked to deny
such physician access to or use of data upon which such
a decision was based." (Emphasis added.) 735 ILCS
5/8-2101(West 1996).
It is well settled that the "cardinal rule of statutory
construction, to which all other canons and rules are
subordinate, is to ascertain and give effect to the true intent
and meaning of the legislature." Solich v. George & Anna Portes
Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81,
630 N.E.2d 820, 822 (1994). The best indication of the
legislature's intent is the statutory language itself. Solich,
158 Ill. 2d at 81, 630 N.E.2d at 822. Here, the language of the
statute in issue is clear.
The supreme court, in Niven v. Siqueira, 109 Ill. 2d 357,
487 N.E.2d 937 (1985), focusing on the language of the Act,
decided that documents in the possession of the Joint Commission
on Accreditation of Hospitals relating to accreditation of a
hospital were privileged. The court stated that "[t]he purpose
of the Act is to encourage candid and voluntary studies and
programs used to improve hospital conditions and patient care or
to reduce the rates of death and disease." Niven, 109 Ill. 2d at
366, 487 N.E.2d at 942.
Applying this standard, as articulated in Niven, to the
present case, it is clear the Act applies to the materials in
question. In addition to protecting all information used in the
course of "internal quality control," the Act's plain language
expressly protects all information used in the course of "medical
study." Statutes should be construed so that no term is rendered
superfluous or meaningless. Niven v. Siqueira, 109 Ill. 2d 357,
365, 487 N.E.2d 937, 942 (1985). Therefore, we presume that the
legislature clearly intended that the statute's purview was not
restricted to peer review committees.
The Act also limits the privilege to materials belonging to
certain entities. Included among these are "committees of
licensed or accredited hospitals." The IRB is such a hospital
committee. Although the IRB was characterized as a "committee of
the medical staff" in the certified question, we consider it to
be more properly characterized as a "committee of the hospital."
While it is comprised of medical staff, it also includes a member
who is not part of the medical staff. Furthermore, that federal
law mandates the establishment of an IRB in this experimental
type of medical study does not negate the IRB's status as a
hospital committee.
It is true that our supreme court has repeatedly stated that
the purpose of this legislation is "to ensure the effectiveness
of professional self-evaluation, by members of the medical
profession, in the interest of improving the quality of health
care." Jenkins v. Wu, 102 Ill. 2d 468, 480, 468 N.E.2d 1162, 1168
(1984); accord Roach v. Springfield Clinic, 157 Ill. 2d 29, 40,
623 N.E.2d 246, 251 (1993); Richter v. Diamond , 108 Ill. 2d 265,
269, 483 N.E.2d 1256, 1257-58 (1985). However, the language
regarding peer review was necessitated by the fact that those
cases happened to involve materials actually generated by peer
review committees or whether certain hospital medical staff
qualified as a peer review committee. Unlike in the case at bar
and in the Niven case discussed earlier in this opinion, no other
type of committee was involved. Thus, these decisions offer
little guidance with respect to the fact situation with which we
are presented.
That committees other than peer review committees were
included in the Act was acknowledged nevertheless by the Roach
court when, citing Niven, the court explicitly stated that "the
statute may be applicable to certain other types of committees."
Roach, 157 Ill. 2d at 40, 623 N.E.2d. at 251. The IRB here
qualifies as the type of committee covered by the Act. Although
we believe that peer review functions are probably an inherent
and inextricable part of the IRB's review process, promoting peer
review is not the only purpose of the Act. Thus, the case of
Konrady v. Oesterling, 149 F.R.D. 592 (D. Minn. 1993), which was
relied upon by the trial court, is not persuasive because the
Illinois statute is broader than the Minnesota statute construed
in Konrady, which was expressly limited to peer review and
contained no privilege for medical study information as expressly
provided for by the Illinois Act.
Marsh v. Lake Forest Hospital, 166 Ill. App. 3d 70, 519 N.E.2d 504, 508 (1988), recognized that Illinois courts have held
that the purpose of the Act is to insure the effectiveness of
professional self-evaluation in the interest of improving the
quality of health care, and that the typical case involved
whether the statute barred disclosure of documents compiled in
the course of granting, restricting, or suspending a doctor's
staff privileges. To refer to the Act as a "peer review"
statute, however, is not an entirely accurate description. "[N]o
court has held that promoting peer review is the only purpose of
the Act. (Emphasis in original.) Marsh, 166 Ill. App. 3d at 75,
519 N.E.2d at 508.
In fact, the distinction between the peer review aspect and
the medical research aspect of the original, and arguably
narrower, statute was acknowledged in Matviuw v. Johnson, 70 Ill.
App. 3d 481, 486, 388 N.E.2d 795, 799-800 (1979)(holding that the
section of the Act which, at that time, provided immunity from
suit for those providing confidential information in the course
of a research project did not apply to a meeting of a hospital's
medical executive committee convened to evaluate a physician's
performance).
Plaintiff argues further that it is inconsistent to deny
information to a subject of an experimental procedure when the
information is collected for the purpose of protecting these
subjects. There is no inconsistency when the essential nature of
a privilege is considered. "Privileges which protect certain
matters from disclosure are not designed to promote the
truth-seeking process, but rather to protect some outside
interest other than the ascertainment of truth at trial." D.C.
v. S.A. 178 Ill. 2d 551, 561-62, 687 N.E.2d 1032, 1038 (1997)
citing 1 J. Strong, McCormick on Evidence 72, at 269 (4th ed.
1992).
The purpose of the Act is based upon this "outside
interest," which is "to encourage candid and voluntary studies
and programs used to improve hospital conditions and patient care
or to reduce the rates of death and disease." Niven, 109 Ill. 2d
at 366, 487 N.E.2d at 942. Thus, both physician peer review
programs and voluntary experimental research studies would
promote this goal. The purpose of the Act is not to facilitate
prosecution of malpractice cases. Jenkins v. Wu, 102 Ill. 2d at
479-80, 468 N.E.2d at 1168.
While restrictions on discovery may make it difficult in
some instances, if not impossible, for plaintiffs to prove
otherwise meritorious cases, such restrictions nevertheless
represent a considered judgment that interests of litigants must
yield to other interests, in this case confidentiality, privacy
and candid peer review within medical institutions. See, e.g.,
Pritchard v. SwedishAmerican Hospital, 191 Ill. App. 3d 388, 404,
547 N.E.2d 1279, 1284 (1989); Woodard v. Krans, 234 Ill. App. 3d
690, 700, 600 N.E.2d 477, 484 (1992). Additionally, since the
Act provides patients with full and complete access to their own
records, denial of the privileged documents should have little
impact on any patient's ability to maintain a cause of action for
medical malpractice, considering that such plaintiffs "can also
depose all persons involved in their treatment and engage experts
to give opinions as to the quality of care received." Jenkins v.
Wu, 102 Ill. 2d 468, 479, 468 N.E.2d 1162, 1168 (1984).
For the foregoing reasons, we conclude that the trial court
incorrectly ordered production of the requested documents and
that the information of the hospital's IRB was privileged under
the Medical Studies Act. 735 ILCS 5/8-2101 (West 1996).
Certified question answered; reversed and remanded.
CAMPBELL, P.J. and O'MARA FROSSARD, J. concur.