Long-term care litigation is a rapidly growing area of healthcare litigation. To avoid pitfalls during litigation discovery, a proactive strategy of defense for long-term care facilities is necessary. This strategy should include pre-suit safeguarding of privilege over internal investigation materials. In a recent Illinois appellate court decision, Lindsey v. Butterfield Health Care II, Inc., No. 160042, 2017 Ill. App. (2d), (Feb. 9, 2017), the court for the first time addressed the application of privilege over an incident report and witness statements prepared by a nursing home and held that privilege attaches to investigation documents only when they are prepared after the peer-review process began.
The assertion of privilege and confidentiality over documents in the long-term care setting is governed by Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act, 745 ILCS 55/1 et seq. The Act provides that proceedings and communications of a peer-review or a quality-assessment-and-assurance committee at a long-term care facility shall be privileged and confidential. 745 ILCS 55/4. The purpose of the Quality Assurance Act is similar to the Medical Studies Act, which applies to medical facilities, insofar, that both Acts were intended to encourage candid studies and programs to improve quality of care. See Niven v. Siqueira, 109 Ill. 2d 357, 366 (1985). Unlike the Medical Studies Act, the Quality Assurance Act has not been interpreted by multiple decisions and accordingly, the scope of its privilege went undefined. In fact, no Illinois appellate court opinions had ever interpreted the Quality Assurance Act until Lindsey.
In Lindsey, an 88-year-old resident of the nursing home was allegedly injured during a fall, and employees of the nursing home completed a report regarding her injury. Id. Upon filing of the lawsuit, plaintiff issued written discovery requests to the nursing home seeking all investigation reports. Id. The nursing home refused to disclose the report, asserting privilege under the Quality Assurance Act because it was “prepared for the Facility’s Quality Assurance Committee.” Id. In response to plaintiff’s motion to compel, the nursing home filed an affidavit of its administrator, stating that the nursing home’s quality assurance process required the completion of internal quality-assurance-investigation reports relating to incidents involving resident injuries and that the report was prepared for the purposes of being considered by the nursing home’s quarterly quality assurance committee and/or its weekly fall committee. Id. at *4.
The trial court ordered the nursing home to disclose the report because it did not contain any recommendations for improvement and there was no indication that it had been reviewed by any committee. Id. at *5. It also ordered that the nursing home produce six written witness statements prepared during the course of its internal investigation despite the nursing home’s assertion that they were prepared pursuant to its quality assurance practices. Id. at *7. The nursing home was subsequently found in contempt for its refusal to produce these documents and sought appellate review. Id. at *6-7.
The appellate court for the Second District noted similarity of purpose of quality assurance between the Quality Assurance and the Medical Studies Acts and reasoned that statutes covering the same subject should be interpreted harmoniously. Id. at *11. It explained that the Medical Studies Act provides protection for the documents generated specifically for the use of a peer-review committee to encourage frank evaluations but does not protect against disclosure of information generated before the peer-review process began. Id. at *12 (citing Roach v. Springfield Clinic, 157 Ill. 2d 29, 41 (1993); Chicago Trust Co. v. Cook County Hosp., 298 Ill. App. 3d 396, 403 (1998)).
The appellate court rejected the nursing home’s arguments that the documents created following the incident should be privileged because the report and the statements were created solely for review by its quality assurance committee and that they were eventually reviewed by the committee. Id. at *16-17. It reasoned that by analogy with the Medical Studies Act, for documents to be privileged under the Quality Assurance Act the committee must be involved in the peer-review process before the privilege will attach. Id. at *16. Here, it was clear that the documents at issue were made prior to any peer-review committee meeting. Id. at *18.
Therefore, the appellate court held that the nursing home was required to turn over the incident report and witness statements. Id. at *21. Lindsey is the first decision interpreting the scope of privilege under the Quality Assurance Act and when it attaches to investigation documents. It is a cautionary tale for long-term care facilities and their counsel about how to preserve privilege over incident reports. To be deemed privileged under the Quality Assurance Act, incident reports must be prepared after the initiation of the peer-review process, thus ensuring that internal investigation materials are properly shielded from discovery.
Victoria Shoemaker is a senior associate attorney in the firm's Chicago Office. She practices civil litigation, with an emphasis on medical malpractice defense, product and premises liability defense, and general healthcare law.