CHICAGO (LN) — The Illinois Medical Studies Act shields the American Board of Orthopaedic Surgery’s peer-review materials from discovery in a surgeon’s retaliation lawsuit, a federal magistrate judge ruled Thursday.
U.S. Magistrate Judge Young B. Kim held that the redacted portions of the plaintiff’s credentials report, which include peer physician names and comments on his professional competence, are strictly confidential under the Act.
The plaintiff, an orthopedic spinal surgeon, alleged that unnamed volunteers at the American Board of Orthopaedic Surgery conspired to ensure he failed his recertification examination in retaliation for his public criticism over the use of pedicle screws in spinal surgeries.
The plaintiff, who received his initial ABOS certification in 2005 and recertification in 2015, submitted a recertification application in 2023 identifying required peer names and contact information.
ABOS solicited ratings and comments from those peers, and the plaintiff alleges that the board required him to complete an oral recertification examination instead of the typical written examination because “questions were raised about” his medical practice since his 2015 recertification.
The plaintiff failed the oral examination and believes that ABOS deliberately failed him as retaliation for his public opposition to the use of pedicle screws.
The plaintiff served discovery requests on ABOS seeking documents concerning the Credentials Committee's decision to require the oral reexamination.
In response, ABOS produced the plaintiff’s Credentials Report with redactions on three pages, reflecting peer reviews and feedback.
The plaintiff demanded that ABOS produce the Credentials Report without redactions, and ABOS filed the motion to prevent such disclosure pursuant to the Act.
In the alternative, ABOS argued that the plaintiff agreed to the confidentiality provisions in the recertification application waiving his right to access peer reviews.
The plaintiff disagreed.
The court held that ABOS is an “allied medical societ[y]” within the scope of the Act, which was passed “to ensure that members of the medical profession will effectively engage in self-evaluation of their peers of advancing the quality of health care.”
The court noted that the Illinois Supreme Court has interpreted the term “allied medical society” to include those medical societies that are closely related to the purposes of the Act, such as those that engage in studies or programs designed to further the Act’s purposes.
The court held that the redacted portions of the plaintiff’s Credentials Report constitute a statutorily protected category of information because they consist of “third party confidential assessments of a health care practitioner's professional competence.”
The court also held that ABOS used the plaintiff’s Credentials Report as part of a program to improve quality control and patient care, as the recertification process is relied on by some hospitals in granting physician practice privileges.
The court rejected the plaintiff’s assertion that “third-party statements” fall outside the scope of the Act, noting that Illinois courts have held that similar peer reviews are privileged when a statutorily protected entity prepared them to further the Act’s purposes.
The court also held that no exception to the Act applies to the plaintiff’s situation, as the exception for proceedings to decide upon a physician’s staff privileges does not apply to “allied medical societies.”
The court declined to rule on the issue of whether the confidentiality provisions in the plaintiff’s recertification application serve as a waiver of the right to access the same.
The plaintiff’s attorney, Benjamin J. Fenton of Fenton Jurkowitz Law Group, LLP, did not immediately return a call for comment.
William K. McVisk and Kari Ann Shane of Tressler LLP, who represented ABOS, did not immediately return a call for comment.