The Illinois Supreme Court recently decided the HIPAA Qualified Protective Order (“QPO”) previously used in Cook County must be modified due to the insufficiency of privacy protections under the current order. The Court held liability insurers are now prohibited from using or disclosing protected health information (PHI) for any purpose other than litigation. Any PHI received during the course of litigation must be destroyed following the conclusion of the litigation. Haage v. Zavala, 2021 IL 125918. The Haage decision brings Illinois closer to a uniform order for acquiring medical records. The decision, which affects virtually all Cook County cases involving bodily injuries, will make fact investigation and damages substantiation significantly more difficult for defendants.
As a result of the decision in Haage, the Cook County-Law Division issued General Administrative Order 21-3 (“GAO”), with a corresponding QPO on November 5, 2021. The QPO follows the holding in Haage by requiring that parties and their attorneys to either return or destroy the plaintiff’s PHI within sixty days after the conclusion of the litigation. Defense counsel must provide proof of destruction by filing an affidavit with the Court and opposing counsel. However, the new QPO also imposes additional restrictions on how defendants can utilize subpoenas, including the following:
(a)Prevents defendant from using a subpoena for “any and all” records.
(b)Requires that a subpoena be specifically restricted to five years prior to the incident.
(c)Requires that a subpoena relate to the condition(s) and portion(s) of the plaintiff’s body complained of.
(d)Requires 14 days’ notice to plaintiff before subpoenas can be issued.
(e)Requires defense counsel provide a copy of all records received in response to any subpoena within 7 days of receipt of records.
These additional restrictions go beyond that decision in Haage by placing burdensome obstacles for defendants. For example, due to the use of electronic medical records and inconsistencies between providers, it is necessary to use “any and all” language so a provider produces a complete set of records. The use of “any and all” also does not appear to conflict with current Illinois discovery rules which explicitly reiterate the importance of full disclosure of relevant information to a case.
The second restriction places the burden on the defendant to argue the relatedness to a particular condition. Medical records beyond five years are necessary in cases involving underlying diseases from alleged occupational exposures to asbestos, benzenes, and herbicides. In these cases, it is particularly necessary to obtain a full medical history for the lifetime of the Plaintiff. The third restriction places the burden on the provider to determine if the particular record relates to the body part in question. The process for reviewing and redacting medical records will unquestionably result in a delay in receiving the records.
In conclusion, the revised QPO will undoubtedly change the discovery process for all Cook County bodily injury cases. The updated restrictions require a new level of participation from providers to review, divide, and redact certain medical records. Moving forward, Defendants should preserve objections to the standard QPO pursuant to Illinois Supreme Court Rule 201(C), arguing that discovery restrictions should be considered on a case-by-case basis at the discretion of the trial judge.