United States District Court, Southern District of Illinois
DONALD G. WILKERSON, UNITED STATES MAGISTRATE JUDGE.
Now pending before the Court are:
1. The Issue of peer review privilege with respect to the audit log/metadata associated with Chelsea Weekley’s medical chart (Docs. 107 and 108).
2. The Motion to Leave to File Motion to Extend Discovery Deadline filed by Plaintiff on December 31, 2014 (Doc. 113).
3. The Motion to Amend Complaint filed by Plaintiff on January 19, 2015 and the response thereto (Docs. 117, 123).
4. The Motion for Leave to file Reply Brief in re Motion to Amend Complaint filed by Plaintiff on January 29, 2015 (Doc. 125).
5. The Motion for Leave to file Motion to Disclose Forensic Computer Expert filed by Plaintiff on January 29, 2015, the response thereto, and a reply (Docs. 126, 127, 131).
6. The Motion to Secure Trial Testimony of Defendant, Ann Marie Flannery filed by Plaintiff on April 26, 2015 (Doc. 146).
On January 20, 2015, this Court held a discovery dispute conference in which a number of matters were raised related to EPIC, the software that Defendant (Cardinal Glennon) uses to create an electronic medical chart. Plaintiff had served discovery related to EPIC including requests seeking manuals and instructional material and information related to the alleged alteration of the medical record. After receiving two allegedly “different” medical charts related to Chelsea Weekley’s care, Plaintiff believes that the medical records have been improperly altered by Defendants. Implicated in Plaintiff’s requests is the peer review privilege – a privilege that protects from disclosure certain information related to the peer review process, a process in which medical decisions are discussed and commented upon by medical professionals – and work product privilege. In a previous discovery dispute conference, held on October 7, 2014, the parties were directed to brief the issue of the peer review privilege and work product privilege as it relates to the metadata/audit trail associated with Chelsea Weekley’s medical records.
Attached to Defendants’ brief (Doc. 107) is an example of this audit trail. The information includes a date, time, the name of the person who accessed the record, their user ID and the action that was taken and the items in the record viewed (or presumably edited). Thus, the audit trail for a person on a peer review committee would include similar identifiers and an indication of what particular part of the record was viewed. In light of the nature of the peer review process, it seems unlikely that any person on a peer review committee would edit or change the medical records. There is also no evidence that any person on a peer review committee uploaded documents to Plaintiff’s medical chart. Defendants argue that the peer review privilege would protect the types of information that the audit trail reveals, namely who viewed the medical charts and what particular item in the chart they viewed. Similarly, Defendants argue that the audit trail also would show similar information as to the actions taken by its risk management personnel and Defendant’s representatives in anticipation of litigation. Again, it seems unlikely that any actions taken in anticipation of litigation would result in any editing (adding too or deleting) the medical record. Defendants do not object to providing the remainder of the audit trail/metadata.
Plaintiff argues that this information, who accessed the medical chart and what they did with the information, is relevant to her theory that the chart was modified or edited in a manner inconsistent with state law. Plaintiff further argues that the peer review privilege would not protect from disclosure any portion of the medical record, of which the audit trail is a part. Relatedly, Plaintiff argues that because the audit trail was not solely created in anticipation of litigation, i.e. that it is automatically created and made a part the medical record, it cannot be subject to the work product privilege.
Peer Review Privilege and Work Product ...