The Illinois Supreme Court recently ruled that a physician’s application file and their data bank report information was subject to discovery in a plaintiff’s medical malpractice lawsuit alleging negligent credentialing. Hospitals have a duty to protect their patients against careless and incompetent physicians. Credentialing is the process through which a healthcare provider collects and verifies the professional qualification of a health care practitioner, including but not limited to relevant training, licensing, certification and registrations with health care regulatory boards and agencies. Negligent credentialing lawsuits involve the failure of a health care provider to meet its duty to conduct and maintain proper credentialing practices in connection with licensed health care professionals practicing within their health systems. In the event of a medical malpractice claim, the physician providing health care services might be negligent, but the health system might also be liable if they were negligent themselves, in the credentialing process.
Lawsuits arise out of medical malpractice claims where physician credentialing is at issue.
Credentialing of licensed health care professionals might take place at the direction or requirement by insurance companies, regulatory agencies, and health care administrations. It is common to re-credential a licensed physician following a medical malpractice claim; failure to verify a credential status following a claim for medical malpractice may expose the health care system to its own negligence and liability.
In the instant case, Klaine v. Southern Illinois Hospital Services (2016 IL 118217), the negligent credentialing medical malpractice lawsuit was filed against the physician and two hospitals where the physician was working. In the process of pre-trial discovery, the hospital responded to a discovery request from the plaintiff and responded with the production of approximately 2,000 pages of documents. Not included in the discovery response were two groups of documents, “which contained three of the physician’s applications submitted in 2009, 2010 and 2011 (Group Exhibit F) and “procedure summaries and case histories” (Group Exhibit J), arguing that they were privileged.[i]”
Claims of privilege, in the discovery process, are asserted by hospital defendants but can be overruled by courts, and in this case, the physician’s application file and data bank report was deemed discoverable.
The hospital in this case, asserted that the withheld documents were not subject to the discovery process, arguing they were privileged pursuant to the Illinois Medical Studies Act[ii] (MSA) and the Health Care Professional Credentials Data Collection Act[iii] (Credentials Act).
The Illinois Supreme Court held that the information subject of the Credentials Act is confidential, but it is not privileged, for purposes of a medical malpractice negative credentialing lawsuit. Likewise, the court ruled against the defendant’s argument that the MSA precluded the discovery, noting that “confidential” is not the same as statutorily privileged. The physician’s applications, procedure summaries and case histories were ruled discoverable.
Information about physician’s history of practice and any reports of medical malpractice claims, settlements and regulatory decisions involving matters such as discipline, are maintained in the secure National Practitioner Data Bank (Data Bank). Over the hospital’s claims that the Data Bank information was privileged under the Health Care Quality Improvement Act[iv], the Illinois Supreme Court found the Data Bank information was discoverable and stated, “We believe it is clear that information reported to the NPDB, though confidential, is not privileged from discovery in stances 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.[v]”
Professional licensing and health care law and litigation attorney, Michael V. Favia asserts there are practices through which the hospital could have better insulated itself from exposure in this type of case.
Michael V. Favia states, “This case clearly set forth the unique intricacies of properly maintaining internal hospital records so that they are protected and not discoverable under various fact scenarios involving professional staff and/or internal risk management protocols. Attorneys working in health law and in particular those handling hospital related matters should become very familiar with the details and judicial analysis of this case.”
Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates, please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.
[i] The National Law Review, Illinois Supreme Court Rules Physician’s Application File and Data Bank Report Information Discoverable in Negligent Credentialing Lawsuit, by Michael R. Callahan, Feb. 22, 2016.
[iii] 410 ILCS 517/1 et seq.
[v] See HNi above.
Image Source: Enterprise Medical Solutions website. http://bit.ly/1oF9fG4
The 
James Harlan, MD, FACEP
Law Firm of Michael V. Favia & Associates in Chicago 