Vested Interest - February 2000 Issue

The President’s Thoughts

Public Act 91-526

Public Act 91-526 made changes to 210 ILCS 85/6.17, part of the Hospital Licensing Act. The former section contained three provisions that related to access to patient records for federally designated organ procurement agencies and tissue banks. The amendments created by P.A. 91-526, effective 1/1/00 provide six new subsections. These sections require hospitals to preserve their records for 10 years and, most critically, allow ex parte communications between hospital representatives (lawyers and risk management types) with any member of their medical staff, including non-agents. Notably, it immunizes anyone from professional regulation, civil liability, or criminal liability for good faith conduct under the Act. The legislation was not debated on the merits in either the Illinois House or Senate.

Before 1/1/00, Illinois law was settled that hospital counsel were not authorized to have ex parte contact with any health care provider of the plaintiff unless the plaintiff claimed (1) the health care provider’s conduct negligent, and (2) such negligence was imputed to the hospital. Morgan v. County of Cook, 252 Ill.App.3d 947, 952 (1st Dist. 1993); Testin v. Dreyer Medical Clinic, 238 Ill.App.3d 883, 895 (2nd Dist. 1992); and Kunkel v. Walton, 179 Ill.2d 519, 537 (1998). Hospital risk management personnel were prohibited from the same conduct. Ritter v. Rush-Presbyterian St. Luke’s Medical Center, 177 Ill.App.3d 313, 317-318 (1st Dist. 1988).

Challenges are being made to the legislation statewide under the theories that the legislation violates the right to personal privacy, violates the separation of powers and violates the special legislation doctrine.

Bruce Pfaff, chair of the ITLA Amicus Committee has placed a sample motion and memorandum on the ITLA website (www.ILTLA.com) which you may use in making your own record. Updated pleadings and court orders will be regularly posted at the site.

Pfaff and Keith Hebeisen, Co-chair of the ITLA Medical Negligence Committee, are monitoring the progress of the challenges to 210 ILCS 85/6.17. If you have challenged the statute, please e-mail Pfaff (bpfaff@pfafflaw.com) and Hebeisen (kah@cliffordlaw.com) with the status of you case. It is imperative that all possible relevant legal arguments be made in challenging the statute.

The ITLA Website

The ITLA website, created during the tenure of past president Laird Ozmon and fine-tuned during Marty Healy’s tenure, had 29,500 “hits” during the past 90 days. Check it out at www.ILTLA.com

Upcoming seminars "Workshop 2000 - Practical Tips for the Busy Plaintiff's Attorney" will be held on Friday, April 14 at the Marriott Pavilion in downtown St. Louis. This seminar will provide "hear it Friday, use it Monday" information.

ITLA's annual travel seminar is being held at the Desert Inn in Las Vegas on Friday, March 10 and Saturday, March 11. The "Evidence & Evidentiary Foundations for the Trial Lawyer" seminar will feature Professor Paul Rothstein from Georgetown University Law Center.

Southern Illinois Judicial and Legislative Night Dinner and Seminar The annual Southern Illinois Judicial and Legislative Dinner is slated for Friday, April 14 at the Marriott Hotel in St. Louis, Mo. The "Workshop 2000" seminar will be held the same day, from 9:00 am to 3:00 p.m., also at the Marriott.

Having made more than 20 trips to Chicago in the past 7 months, I welcome all of you to travel to my part of the state. You might even run into Mark McGwire or one of the super bowl champions St. Louis Rams.

Keep the faith,

Michael J. Reagan
President, Illinois Trial Lawyers Association