Opinion
No. 18 C 5094
2019-10-02
Stephen CROOK, Plaintiff, v. Thomas DART, Sheriff of Cook County and Cook County, Defendants.
Kenneth N. Flaxman, Joel A. Flaxman, Kenneth N. Flaxman, P.C., Chicago, IL, for Plaintiff Anthony E. Zecchin, Hale Law LLC, Bianca B. Brown, Chicago, IL, for Defendants
Kenneth N. Flaxman, Joel A. Flaxman, Kenneth N. Flaxman, P.C., Chicago, IL, for Plaintiff
Anthony E. Zecchin, Hale Law LLC, Bianca B. Brown, Chicago, IL, for Defendants
ORDER
M. David Weisman, United States Magistrate Judge
Before the Court is Plaintiff's Motion to Compel [63], seeking production of nine documents that defendants claim are privileged pursuant to the Patient Safety and Quality Improvement Act ("PSA"), 42 U.S.C. § 299b-22 or the Illinois Medical Studies Act ("IMSA"), 735 Ill. Comp. Stat. 5/8-2101. For the reasons provided below, the Court grants the motion.
Discussion
On their privilege log, defendants describe one document, CCSAOCROOK 001119, as "[h]ospital data and responses collected and assembled by PSO [patient safety organization] regarding patient safety activities," and the remaining documents as "PSO eMERS [electronic medical event reporting system]." (See Pl.'s Mot., ECF 63, Ex. 3, Am. Privilege Log.)
Defendants argue that the eMERS documents should be considered privileged under the PSA, which provides that patient safety work product "shall not be ... subject to discovery in connection with a Federal, State, or local civil, criminal, or administrative proceeding." 42 U.S.C. § 299b-22(a)(2). "Patient safety work product" (PSWP) is defined as "any data, reports, records, memoranda, analyses ..., or written or oral statements" which are "assembled or developed by a provider for reporting to a patient safety organization and are reported to a patient safety organization" or "developed by a patient safety organization for the conduct of patient safety activities" and "could result in improved patient safety, health care quality, or health care outcomes" or "identify or constitute the deliberations or analysis of, or identify the fact of reporting pursuant to, a patient safety evaluation system." 42 U.S.C. § 299b-21(7)(A)(i), (ii). PSWP does not include "information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system." 42 U.S.C. § 299b-21(7)(B)(ii). In other words, "information prepared for purposes other than reporting to a PSO is not PSWP." Patient Safety and Quality Improvement Act of 2005 HHS Guidance, 81 Fed. Reg. 32655, 32656 (May 24, 2016) ; see Johnson v. Cook Cty. , No. 15 C 741, 2015 WL 5144365, at *7 (N.D. Ill. Aug. 31, 2015) ("[I]nformation is privileged [under the PSA] only if it is specifically generated or assembled for the purpose of reporting to a PSO or patient safety evaluation system. Information generated or assembled for some other purpose, even if the information relates to quality improvement measures, is not considered patient safety work product."); Vargas v. Sheriff of Cook Cty. , No. 18 C 1865 (N.D Ill. Apr. 29, 2019), ECF 65 (same).
The Court has closely reviewed the two affidavits that accompanied defendants' response and has found no reference to CCSAOCROOK 001119. Thus, defendants appear to have provided no factual support for their assertion that this document is privileged under the PSA.
Defendants, through the affidavit of Sandra Navarro, the Deputy Director of Risk Management with Cook County Health, have established that Cook County Health entered into a contract with a PSO on February 1, 2016. (Defs.' Resp., Ex. 2, Navarro Aff., ECF 64-2 ¶ 4.) The affidavit does not establish, however, that the eMERS documents for which defendants claim privilege were created specifically for the purpose of reporting to the PSO. Rather, the affidavit simply establishes that those documents "relate to the CCHS eMERS system." (Id. ¶ 16.)
As Plaintiff argues, the timing of the PSO contract alone would seem to eliminate any privilege claim for three documents on the amended log that are dated prior to CCH's relationship with the PSO.
In defense of their position, defendants assert that the "PSWP submitted through the eMERS was "specifically generated or assembled for the purpose of reporting to a PSO or patient safety evaluation system" and that the eMERS information is "not for some other purpose, such as internal use within CCH," citing Navarro's affidavit as support. (Defs.' Resp., ECF 64 at 5) (internal quotation marks omitted). However, the affidavit says nothing of the sort. (See id. , Ex. 2, Navarro Aff., ECF 64-2 ¶ 11 (stating that eMERS data can be manually or automatically reported to the PSO); id. ¶ 16 (stating that the contested documents "relate to the CCHS eMERS system").) Absent evidence that the eMERS documents were specifically generated to be reported to the PSO, defendants have not established that they are privileged under the PSA.
Plaintiff also raises a waiver argument as to two of the eMERS documents, CCSAOCROOK 2191-99 and 2200-48, because defendants provided these documents to the medical monitor. (See Pl.'s Mot. Compel, ECF 63 at 8.) Because defendants have not established that these documents are privileged, we need not address the issue of waiver.
Defendants assert a separate privilege under the IMSA for the document labeled CCSAOCROOK 001119 and described on the privilege log as "[h]ospital data and responses collected and assembled by PSO regarding patient safety activities." (See Pl.'s Mot., ECF 63, Ex. 3, Am. Privilege Log.) The IMSA exempts from discovery:
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 ... medical organizations under contract with [HMOs] or with insurance or other health care delivery entities or facilities ... 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 ... 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 ....
735 Ill. Comp. Stat. 5/8-2101, 2102. However, this case is governed by federal, not Illinois, law and thus state privileges generally do not apply. Fed. R. Evid. 501.
Defendants contend that Memorial Hospital for McHenry County v. Shadur , 664 F.2d 1058, 1061 (7th Cir. 1981) establishes that "federal courts [should] recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." While that is true, defendants fail to explain why that principle compels this Court to apply the IMSA privilege to this case. Moreover, Levitin v. Northwest Community Hospital , No. 13 C 5553, 2014 WL 5510949 (N.D. Ill. 2014) (J. Schenkier), which plaintiffs cite, suggests that it should not. The Levitin court balanced the IMSA privilege against the needs of a Title VII plaintiff and found the IMSA privilege inapplicable because of, inter alia , the "important national policy of eliminating employment discrimination." Id. at *3. The same is true here, where plaintiff seeks redress for the County's alleged failure to provide medical care mandated by the U.S. Constitution, a compelling federal interest that overrides the state interests animating the IMSA privilege. See, e.g., Vargas , No. 18 C 1865, ECF 65 (holding that the IMSA privilege does not apply to a section 1983 prison medical care case); Johnson , 2015 WL 5144365, at *4-5 (same); Dobbey v. Randle , No. 10 C 3965, 2014 WL 1364428, at *2 (N.D. Ill. Apr. 7, 2014) (same).
Moreover, even if the Court were inclined to apply the IMSA privilege to this case, defendants would not have met their burden of showing that the document is entitled to that privilege. Ardisana v. Nw. Cmty. Hosp., Inc. , 342 Ill.App.3d 741, 277 Ill.Dec. 296, 795 N.E.2d 964, 969 (2003) (stating that the burden of proving the IMSA privilege applies is on the party invoking it). This burden may be met by submitting the allegedly privileged materials for in camera review or by submitting affidavits setting forth facts sufficient to establish the applicability of the privilege to the documents being withheld. Ekstrom v. Temple , 197 Ill.App.3d 120, 142 Ill.Dec. 910, 553 N.E.2d 424, 428 (1990). As noted above, defendants have submitted no factual support as to the contents, purpose, or use of the document at issue. Thus, there is absolutely no factual record to support defendants' assertion of the IMSA privilege as to the document at issue here.
Conclusion
For the reasons set forth above, the Court grants plaintiff's motion to compel [63]. Defendants shall produce the contested documents to plaintiff within seven days of the date of this Order.