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May 2017 Newsletter
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 Illinois Healthcare Law
 IAHA Monthly Newsletter

 May 2017
Courtney Posnik
Sam Siegfried


Digital Health - the intersection of software applications, analytical tools, medical technology and electronic data assets with the delivery of and payment for health care - is having profound effects on all facets of the health care delivery system. Digital health is changing the ways providers deliver care and the ways in which patients access care, and empowering patients with “consumer-like” tools, inviting into the health sector a new generation of companies and innovators that specialize in digital solutions.
Consider, for example, how basic connected devices are changing the ways in which the millions of Americans with diabetes  receive health care.  Diabetes patients can now download data directly from their personal insulin meters to their smart phones and set up medication alerts and reminders, track their intake of food, integrate this information with weight and cholesterol management recommendations, and transmit all of this valuable health information to a variety of different medical professionals in real time to allow them to reach their patients and make any necessary adjustments before rather than after problems arise.  On the other end of the digital health spectrum, artificial intelligence and machine-learning tools are reading retina scans of diabetes patients to automatically identify diabetic retinopathy, a leading cause of blindness among adults.
Bernadette Broccolo and Lisa Schmitz Mazur, both partners with McDermott Will & Emery, will explore the various legal issues surrounding these rapid technological advances.  


Register Now!


IAHA is seeking sponsors for the 35th Annual Health Law Symposium.  
The sponsorship fee is $750 and includes:

  • Sponsor’s name listed in the online monthly issue of our newsletter
  • Sponsor’s name will be included on the Symposium event web page
  • Sponsor name will appear in the Symposium brochure
  • Sponsor name will be displayed on signage at the Symposium
  • If form and payment are received by Monday, May 1, Sponsor’s logo and a URL link to Sponsor’s website (landing page of their choice) will be included in the newsletter and on the IAHA website.

Your support is greatly appreciated!

Click Here to become a Sponsor. 

Thanks to those sponsors who have already committed to sponsoring the
2017 Symposium!

Arnstein & Lehr LLP
Drinker Biddle & Reath LLP 
Greensfelder, Hemker & Gale, P.C.
Heyl, Royster, Voelker & Allen
Hinshaw & Culbertson
K&L Gates LLP
Loyola University Beazley Institute for Health Law and Policy
Jones Day
McDermott Will & Emery
McGuireWoods LLP 
Much Shelist
Pinnacle Healthcare Consulting
Reinhart Boerner Van Deuren S.C.
The Health Law Consultancy

The Mentoring Committee is pleased to announce the 2017-18 Mentoring Program Year successfully kicked-off May 26 at the mentoring breakfast hosted by McDermott Will & Emery. More than twenty IAHA members have been matched for the 2017-18 program year, including six members who are set to earn 6 professionalism CLE credits through the program’s CLE track.
If you’re interested in participating in the mentoring program or learning more about it, please visit the IAHA Mentoring webpage at or contact the Mentoring Committee Co-chairs:

IAHA Networking Happy Hour
Where:   South Branch Tavern & Grille, 100 S. Wacker Drive, Chicago
When:    Tuesday, July 18th  from 4:30-6:30pm
Relax, have some refreshments, and chat with health law colleagues.
Details and Registration coming soon!


The Second Annual Telehealth Law Forum invites both those new to and those already working in telehealth to attend the second program of the Multi-Disciplinary Telehealth Bootcamp Series. 

September 12, 2017
Offered by Broadband Illinois -
Partnership for a Connected Illinois
To register and learn more - Click HERE

Have you gotten a promotion lately, changed firms,
want to 
toot your horn? 
Send us your news.

This is your newsletter!


By Kathleen Pankau,
The Joint Commission
On March 7, 2017, the Appellate court of Illinois, Fourth District, reversed and remanded a circuit court judgment and found that a cardiologist had been denied a fair hearing by a hospital that had summarily suspended his privileges because the hospital had failed to follow disclosure obligations before an intraprofessional conference which was required by its medical staff bylaws.  Murphy v. Advocate Health and Hospitals Corporation, d/b/a Advocate BroMenn Medical Center, 2017 IL App (4th) 160513.
The board-certified cardiologist had been a member of the hospital’s medical staff for more than 20 years when the hospital’s vice president told him his privileges had been summarily suspended following the death of a patient, E.W. The executive committee affirmed the summary suspension but later lifted it with the understanding that the cardiologist would voluntarily refrain from exercising his privileges until completion of a “productive interaction,” which the medical staff bylaws described as a means of resolving behavioral, clinical, or administrative issues, not involving an investigation or hearing that implicated procedural rights. However, the president of the medical staff then sent notice to the cardiologist that he was not to perform consults, admit patients, or perform any surgical procedures “pending a peer review investigation by [the hospital] related to clinical concerns that have been raised. In addition, the Productive Interaction Process will be initiated.”
After the cardiologist sent notice that he would not voluntarily relinquish his privileges, the executive committee voted again to summarily suspend his privileges effective immediately. The committee identified 8 findings related to E.W.’s care as the basis for its decision, but then noted that “in addition, in the past 18 months, [the cardiologist] has had 4 peer review cases and 10 other reports for inadequate documentation and/or management.” The cardiologist requested an intraprofessional conference on the hospital’s decision to summarily suspend his privileges, and stated said that he assumed that all documentation “on which the summary suspension was based” had been provided to the cardiologist. Thereafter, the cardiologist sent a discovery request to the hospital.
The medical staff bylaws required the hospital to provide to suspended physicians “all pertinent and non-privileged information in the hospital’s possession prior to the intraprofessional conference.” The hospital provided E.W.’s medical records, a second patient’s medical records, peer review worksheets for two unidentified patients, and brief excerpts extracted from 8 medical charts summarizing the care provided to unidentified patients for an 18-month period from December 2015 to May 2016.
At the intraprofessional conference, it became clear that E.W.’s case plus the other peer review cases and reports for inadequate documentation formed part of the basis for the summary suspension. The cardiologist objected that the other unidentified peer review cases and excerpted reports had been improperly admitted in violation of the medical staff bylaws. When the intraprofessional committee recommended that the governing council maintain the summary suspension, the cardiologist filed an amended complaint for declaratory and injunctive relief, raising numerous claims that challenged the fairness of the intraprofessional conference. He claimed he was prejudiced by the insufficient disclosures and could not cross examine witnesses that questioned the method and manner in which he provided care to his other patients during the 18-month period. A witness at the intraprofessional conference testified that the executive committee had considered the additional cases and that E.W.’s case was just “the latest case in a series of cases spanning 18 months that revealed a pattern.” This was confirmed by witnesses at the intraprofessional conference as well. The circuit court denied the cardiologist’s motion for relief, but the appellate court found that, at a minimum, the hospital should have disclosed the identity of the patients involved in the other peer review cases and a brief synopsis of the specific safety concerns raised. Because the hospital had not provided the substance of the peer review cases and other reports, the appellate court reversed and remanded with directions for a fair intraprofessional conference to be conducted. 

By Sara Zweig,
Loyola University Chicago School of Law
The Illinois Appellate court, First District, determined that plaintiffs were required to attach an affidavit and health professional’s report, pursuant to Section 2-622 of Code of Civil Procedure negligence claims against athletic trainers concern “healing art malpractice,” the complaint must include an affidavit that the plaintiff or their attorney consulted with “a physician licensed to practice in all branches of medicine” who “reviewed the relevant records and has determined in a written report that there is reasonable and meritorious cause for filing a complaint” and must include a copy of the report. Williams v. Athletico, Ltd., 2017 Ill. App. (1st) 161902.
Plaintiffs, individually and as plenary co-guardians of disabled person, sued physical therapy, rehabilitation center, and athletic trainer (collectively, defendants) alleging they were negligent for not properly assessing a player for symptoms of head trauma during high school football game, after he violently collided with a teammate. Defendants moved to dismiss the complaint on the ground that, because the complaint pertained to healing art malpractice, plaintiffs were required to comply section 2-622of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2014)) and failure to do so required dismissal.
The court first addressed whether the athletic trainer’s alleged negligent conduct in this case concerned the area of healing art malpractice, thereby requiring compliance with section 2-622. Section 2-622 states that where a claim is filed alleging healing art malpractice, an affidavit from the plaintiff or their attorney must be attached to the complaint. It “must state that he has consulted with a health professional, that the health professional has reviewed the relevant records and determined in a written report that there is reasonable and meritorious cause for filing a complaint, and that in light of the report and consultation, the affiant concludes that there is reasonable and meritorious cause for filing the complaint.” The affidavit and report must also be included in the complaint. While it is undisputed that section 2-622 applies in complaints against doctors, physicians, nurses, or hospitals, the court determined that there was a reasonable question regarding whether section 2-622 also applied to athletic trainers.
The legislature did not define “healing art malpractice.” Therefore, the court looked to Jackson v. Chicago Classic Janitorial & Cleaning Service, Inc., 355 Ill. App. 3d 690 (1992) for guidance on whether a case is sounded in healing art malpractice or ordinary negligence. In Jackson, “[t]here factors were considered: (1) whether the standard of care involves procedures not within the grasp of the ordinary lay juror, (2) whether the activity is inherently one of medical judgement, and (3) the type of evidence that will be necessary to establish plaintiff’s case.” Jackson, 355 Ill. App. 3d at 911-913.
In this case, with respect to the first factor, the court determined that the duty to evaluate and treat on-site injuries is vested in athletic trainers licensed by the State and that a determination of the standard of care required of the defendants is not within the grasp of a lay juror. With respect to the second factor, the court reasoned that a determination of whether to assess or evaluate an individual following a first-quarter collision requires at least some degree of medical judgement. Finally, with respect to the third factor, the court held that the plaintiffs would need to produce evidence establishing that defendants failed to employ “the degree of knowledge, skill, and ability that a reasonable athletic trainer would employ under similar circumstances.” Therefore, the court held that plaintiffs were required to attach an affidavit and health professional’s report pursuant to section 2-622 of the Code where the complaint alleges negligent conducted by a licensed athletic trainer.
Having determined that a section 2-622 report is required, the court then considered whether the health care professional that issues the certification pursuant to section 2-622 of the Code must be someone in the same profession, with the same class of license or not. According to section 2-622(a)(1): “If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery ..., the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice in all its branches.”
The parties did not dispute that “athletic trainers” fall within the category of “all other defendants.” However, the defendants argued that the report should be written by someone in the same profession, with the same class of license, as potential medical malpractice causes of action necessarily encompass a review of the applicable standard of care. The court disagreed, asserting that it would run contrary to the express intent of the legislature. Therefore, the court held that the health professional conducting the section 2-622 review need not be someone in the same profession, with the same class of license as the defendant. Instead, the reviewing health professional “must be physician licensed to practice medicine in all its branches who is otherwise qualified under section 2-622(a) of the Code.”
The plaintiffs’ complaint pertains to healing art malpractice, not just negligence. Therefore, the plaintiffs were required to comply with section 2-622 of the Code by attaching an affidavit accompanied by a written report from a physician licensed to practice in all branches of medicine who meets the qualifications of section 2-622(a)(1). The court remanded the case with instructions to allow plaintiffs a reasonable opportunity to comply with section 2-622.


Corporate Governance Coordinator -  ANN & ROBERT H. LURIE CHILDREN'S HOSPITAL OF CHICAGO - Click here to learn more and apply.



Illinois Register

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April 21, 2017



Hospital Financial Assistance under the Fair Patient Billing Act
77 Ill. Adm. Code 4500.......................................................................4426

April 28, 2017 – NONE

May 5, 2017 – NONE

May 12, 2017



Drug Assistance Program
77 Ill. Adm. Code 692........................................................................4964

May 19, 2017 - NONE





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