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Case Update – Fall 2011

By Adam P. Chaddock

This quarter’s case update focuses upon: (1) the amount of discovery allowable to a plaintiff prior to filing a 2-622 reviewing healthcare professional’s report; (2) whether infectious disease records are privileged under the Medical Studies Act; (3) whether a posthumous child is a next of kin so as to recover under the Wrongful Death Act; and (4) whether the failure of the written portion of a board examination is admissible against the defendant physician.

In Zangara v. Advocate Christ Medical Center, the consolidated Complaints of two plaintiffs who had contracted MRSA while at defendant’s facility were dismissed by the trial court for failure to meet the requirements of Section 2-622 of the Code of Civil Procedure. One of the plaintiffs, prior to filing suit, propounded discovery to Advocate asking for infection-control data and statistics, policies and procedures for control and treatment of infectious diseases and a list of all patients who contracted MRSA 90 days before plaintiffs were admitted . Defendant refused to provide the requested information, claiming that much of the requested information was protected by the Medical Studies Act. Both plaintiffs eventually filed suit without supporting their Complaints with a healthcare professional’s report pursuant to Section 2-622. Rather, plaintiffs supported their Complaints with affidavits suggesting that their experts could not offer opinions that the cause of action was meritorious in the absence of the requested documents. The trial dismissed the Complaints, and plaintiffs appealed.

The appellate court reversed and remanded for further proceedings.

The appellate court first considered the scope of discovery allowable to a plaintiff prior to submitting a 2-622 reviewing healthcare professionals’ report. The court noted that nothing prevents a plaintiff from obtaining records from a healthcare facility that are outside the plaintiff’s own personal medical records. Accordingly, trial courts are granted broad discretion in determining appropriate discovery to be allowed to a plaintiff prior to submitting a 2-622 reviewing healthcare professional’s report.

The appellate court further considered whether the MRSA records were protected by the Medical Studies Act. Defendant argued that the MRSA rates and number of outbreaks were protected pursuant to the work of the hospital’s Infectious Disease Control Committee. The appellate court disagreed, noting that the MRSA rates and number of outbreaks were “mere incidences of fact” that could not be shielded under the Act. The MRSA rates and number of outbreaks were generated in the general course of hospital business and were not generated specifically for the use of a peer-review committee. That a peer-review committee uses information otherwise generated by the hospital does not cloak the information with privilege from discovery.

Baez v. Rosenberg is a recent wrongful death case. This case does not sound in medical malpractice, but it could impact damages in future medical malpractice actions. In Baez, the appellate court considered whether a posthumous child or the decedent’s parents were next of kin so as to be able to recover under the Wrongful Death Act. The appellate court held that the posthumous child of the decedent, not the decedent’s parents, was the appropriate next of kin so as to recover under the Wrongful Death Act.

In Babikina v. Mruz, the appellate court considered whether a defendant physician’s failure to pass the written portion of the board exam is admissible. The trial court ruled on a motion in limine that plaintiff could not raise the board exam failure unless defendant attempted to testify as an expert on the standard of care. Plaintiff called defendant as an adverse witness at trial. Plaintiff inquired of defendant whether he met the standard of care. Plaintiff subsequently inquired whether defendant was board certified, whether a physician must first pass the written portion of the board exam before taking the oral portion, and whether defendant had ever taken the oral portion. Defendant’s counsel only objected to the last inquiry, that objection was overruled. Defendant’s counsel further failed to object to mention of the failure of the written portion of the exam during closing argument.

The appellate court noted that defendant waived his objections by failing to appropriately object at the time of the questions on adverse examination and further failed to object when the exam failure was mentioned in closing argument. Even if defendant had not waived the objection, the appellate court noted that the inquiry of board exam failures is appropriate where the defendant testifies as an expert.

Originally published in the Fall 2011 edition of Quinn Quarterly.