Tougher Times Defending Injury Cases in Cook County

by W. Anthony Andrews

When a plaintiff files a lawsuit alleging they have been injured, it is common for defendants to subpoena the relevant medical records. Most health care facilities will not provide a plaintiff’s records unless the judge has entered a Qualified Protective Order (“QPO”) that assures compliance with the Health Insurance Portability and Accountability Act (“HIPAA”). Recently, the Circuit Court of Cook County’s standing QPO was gutted by the Illinois Supreme Court’s decision in Haage v. Zavala, 2021 IL 125918. Thereafter, Cook County made drastic changes to its stock QPO, which in turn have made defending personal injury cases there more challenging.

In Haage, the Illinois Supreme Court held that liability insurers are now prohibited from using or disclosing protected health information (“PHI”) for any purpose other than litigation. Furthermore, such PHI must be destroyed following the end of the case.

Following Haage, the Law Division of the Circuit Court of Cook County issued a new general administrative order 21-33 (the “GAO”) along with a corresponding QPO in November. The new QPO follows Haage by requiring that parties and their attorneys—plus the liability insurer which may also receive that PHI during litigation—mayuse medical data only for the litigation. Additionally, this sensitive information must be returned or destroyed within sixty days after the conclusion of the litigation.

However, there are more nettlesome provisions of the new Cook County standing HIPAA order that go much further than contemplated by the Illinois Supreme Court. For example, Cook County’s new QPO imposes a variety of new restrictions on how defendants can issue subpoenas, including:

• Preventing defendants from issuing subpoenas for “any and all records”;
• Requiring that subpoenas be limited to within five years prior to the incident;
• Requiring that a subpoena specifically relates to the condition(s) and portion(s) of the plaintiff’s body complained of;
• Requiring that plaintiffs or their counsel receive at least fourteen days’ notice before defendants issue subpoenas; and
• Requiring that defense counsel provide a copy of all records received in response to any subpoena within seven days of receipt.

Each of these restrictions present obstacles to parties defending personal injury actions in Cook County.

Previously, defendants would commonly request “any and all records” to ensure that all medical records are received at once and in the order in which they are kept by medical providers. This formulation eliminates doubt that certain records were left behind due to semantical issues, as medical providers often use varying words or phrases to classify certain medical records. A request for “any and all records” is also in line with Illinois’ discovery rules, which explicitly reiterate the importance of full disclosure of relevant information to a case.

Moreover, where a plaintiff claims a permanent disability as a result of the injury in question, it is appropriate to assess what other body parts or conditions may also contribute to the plaintiff’s asserted disability. Yet, under the new HIPAA QPO in Cook County, defense attorneys are limited to issuing subpoenas for medical records related only to “the condition(s) and portions of the Plaintiff’s body complained of.”

As a result, Cook County’s new order has been criticized as unrealistic, as medical providers do not collect or store a patient’s records by specific body part or condition. This will undoubtedly delay record production and yield fewer records that do not fully reflect the full medical picture.

Additionally, it was previously typical to request records from many years prior to get a full picture of their prior medical history—particularly where the plaintiff denies prior problems. Now, the default limit is arbitrarily set at five years for all bodily injury cases. This shifts the burden of arguing relevance from plaintiffs to defendants, who must now affirmatively seek modification of the QPO’s default five-year period before requesting such documents. This restriction will yield more expense by the defendant to expand the scope of the medical history that has affirmatively been placed at issue.

In sum, the revised HIPAA QPO severely alters the discovery landscape for all Cook County cases involving bodily injury. Now, the heightened participation required of medical providers to review, separate, and maybe even redact medical records will likely lead to inescapable delays and a lesser medical picture of the plaintiff.