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Levitin v. Northwest Community

United States District Court, N.D. Illinois, Eastern Division

October 31, 2014

YELENA LEVITIN, and CHICAGO SURGICAL CLINIC, an Illinois Corporation, Plaintiffs,
NORTHWEST COMMUNITY, HOSPITAL, an Illinois Not For Profit Corporation, ADVANCED SURGICAL ASSOCIATES, S.C., an Illinois Corporation, ALAN B. LOREN, WILLIAM D. SOPER, and DANIEL R. CONWAY, Defendants.


SIDNEY I. SCHENKIER, Magistrate Judge.

On August 14, 2014, plaintiffs filed a fifty-four page motion to compel (doc. # 47), which has been fully briefed (docs. ## 55, 56). This Court ruled on eight of the eleven arguments plaintiffs raised in support of their motion in a written order on October 2, 2014 (doc. # 62). After further rulings on the record on October 23, 2014, only one issue remains (doc. # 66): whether the Court should compel defendants to produce records and information developed during professional review actions at defendant Northwest Community Hospital involving Plaintiff Dr. Levitin and other surgeons whom Dr. Levitin contends are "similarly situated" (Pls.' Mot. to Compel at 31 and n.15). Defendants have withheld these documents on the basis of a "peer review" or "professional review" privilege, which defendants contend arises under the Illinois Medical Studies Act ("IMSA"), 735 ILCS 5/8-2101 (Pls.' Mot. to Compel at 31). Plaintiffs argue that these documents are not privileged, and are relevant to their Title VII claim against defendants.

For the reasons that follow, we agree. The Court therefore overrules defendants' assertion of a peer review privilege, and requires that responsive documents withheld on the basis of that privilege be produced.


The IMSA provides that all information

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... 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.

735 ILCS 5/8-2101. The IMSA privilege (which we will refer to as the "peer review privilege") is intended "to ensure that members of the medical profession will effectively engage in self-evaluation of their peers in the interest of advancing the quality of health care." Roach v. Springfield Clinic, 623 N.E.2d 246, 251 (Ill. 1993). As the party seeking to invoke the privilege, defendants bear the burden of establishing that the privilege applies. See Cornejo v. Mercy Hosp. and Med. Ctr., et al., No. 12-1675, 2014 WL 4817806, at *3 (N.D. Ill. Sept. 15, 2014).

Plaintiffs assert two arguments in support of their position that defendants have improperly withheld responsive documents based on the Illinois peer review privilege. We address each in turn.


Plaintiffs contend that defendants have withheld documents, such as credentialing and personnel files, which are not within the scope of the peer review privilege under Illinois law (Pl.'s Mot. to Compel at 31-32 n. 15). Defendants do not respond to this argument, and, indeed, Illinois state courts and courts in this district agree that the peer review privilege protects documents generated specifically for the use of a peer review committee, but not documents generated before a peer review process begins or after it ends, or documents created in the ordinary course of business, even if they are later used by a committee in a peer review process. Cornejo, 2014 WL 4817806, at *2-3 (citing Chicago Trust Co. v. Cook County Hosp., 698 N.E.2d 641, 646, 649 (Ill.App. 1998); Ardisana v. Nw. Cmty. Hosp., Inc., 795 N.E.2d 964, 971 (Ill.App. 2003)). Thus, we agree with plaintiffs that any documents not generated specifically for the peer review process are not covered by the peer review privilege.


More fundamentally, plaintiffs argue that the peer review privilege created by Illinois law does not apply at all in this federal lawsuit that alleges both Title VII and state law claims (Pl.'s Mot. to Compel at 33). We agree.

Where state law does not supply the rule of decision, federal courts are not required to apply state law in determining whether the information a plaintiff seeks is privileged. Mem'l Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1061 & n.3 (7th Cir. 1981). This holds true even if the plaintiff pleads, in addition to federal law claims, supplemental state law claims for which the information sought would also be relevant. Id. at 1061 n.3. That said, the Seventh Circuit in Shadur held that a "strong policy of comity... impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." Id. at 1061 (internal citations and quotations omitted). The Seventh Circuit emphasized that "in deciding whether the privilege asserted should be recognized, it is important to take into account the particular factual circumstances of the case in which the issue arises" so that the court may "weigh the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the case." Shadur, 664 F.2d at 1061-62 (internal citations and quotations omitted).

In Shadur, the plaintiff claimed that the defendants had used the hospital review committee apparatus discriminatorily to deny him staff privileges at the hospital in furtherance of an unlawful restraint of trade. Shadur, 664 F.2d at 1062. The Seventh Circuit determined that the evidence sought - the hospital's records of disciplinary proceedings against other doctors to show that doctors with comparable or worse records were not denied staff privileges - was "relevant and possibly crucial" to plaintiff's antitrust claim, which arose out of the conduct of the peer review process itself. Id. at 1062-63. Thus, obtaining the information in question would serve not only the plaintiff's interest ...

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