Thursday, August 4, 2022

Disclosures Lead To Proposed Censure

An Illinois Hearing Board has recommended a public censure for an attorney's disclosure of confidential medical records

Respondent admits he provided two documents to his expert witness after the court had entered an order deeming them privileged and precluding their use in a medical negligence matter. The Hearing Board found Respondent acted knowingly and intentionally when he disobeyed the court’s order, and further found that his conduct prejudiced the administration of justice.

B. Admitted Facts and Evidence Considered

Respondent has been licensed to practice law in Illinois since 1979. (Tr. 77). His practice focuses on personal injury matters, primarily in the area of medical negligence. (Tr. 78-79). Respondent testified that he plans to retire in the next two years. (Tr. 114).

The charges in this matter pertain to Respondent’s representation of the estate of Eugene Wheat, who died in 2016 following a catheterization procedure performed by Patrick Murphy, M.D., at Advocate BroMenn Medical Center (Advocate). While investigating the matter at the request of Wheat’s family, Respondent learned that Advocate suspended Dr. Murphy’s staff privileges after Wheat’s death and Dr. Murphy filed a lawsuit challenging the suspension, Patrick Murphy v. Advocate BroMenn Medical Center, 2016 CH 122 (Circuit Court of McLean County). Respondent then sat in on a hearing in the 2016 CH 122 matter and learned it involved Dr. Murphy’s treatment of Wheat. On or around July 19, 2017, Respondent reviewed the court file for 2016 CH 122 and obtained copies of certain documents from the circuit clerk, including a peer review report generated by an Advocate Intraprofessional Conference Committee (ICC report), and a letter dated June 1, 2016 to Murphy from Advocate’s president of medical staff (June 1
letter). (Tr. 127; Resp. Ex. 3). In Respondent’s view, the ICC report “pretty well laid out what [Wheat’s] case against Murphy was”. (Tr. 128). The June 1 letter contained most of the same information as the ICC report. (Tr. 129).

In the Wheat litigation

the court entered an order denying the Motion for Judicial Notice and determining, in relevant part, that the ICC report was privileged and confidential under the Medical Studies Act, 735 ILCS 5/8-2101 et seq., because it contained recommendations arising from the peer review process. The court further determined that the June 1 letter was privileged in part because it contained the results of the peer review process and recommendations and conclusions arising from the peer review process.

Intent

Respondent understood the court’s order and understood he was not permitted to disclose the ICC report or unredacted June 1 letter. There was no testimony from Respondent that he forgot about or misunderstood the court’s ruling. On the contrary, Respondent’s own testimony established that he purposely provided the privileged information to Dr. Sanborn to focus Dr. Sanborn’s attention on a particular time period. Respondent also testified that the content of Dr. Sanborn’s written opinions, which Respondent helped draft, mirrored the language in the ICC report to a certain extent because Respondent wanted to make a record for purposes of appeal. The logical inference from this testimony is that Respondent disclosed the privileged documents with the intention that information contained therein would make its way into Dr. Sanborn’s opinions. Thus, the evidence clearly and convincingly established that Respondent’s conduct was not accidental or inadvertent.

The hearing board found substantial mitigation. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/08/an-illinois-hearing-board-has-recommended-a-public-censure-for-an-attorneys-disclosure-of-confidential-medical-records.html

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