US District Court, Illinois
Johnson v Cook County

In this case, the district court reviewed, in camera, a document for which Cook County Health and Hospitals System (CCHHS) claimed Patient Safety Work Product Privilege.  Cook County maintained that it functionally reported the information to its PSO. The court found the privilege did not apply. The following are excerpts from the ruling.

  • …Defendant has offered no actual proof to support its assertion that the Report was ever reported—functionally or otherwise—to a PSO. Defendant did not, for example, submit an affidavit from anyone affiliated with CCHHS or UHC confirming the Report was made available to the PSO. There is nothing suggesting the PSO ever saw the Report or used the information contained therein in any way. CCHHS’s risk manager did not even know which entity served as its PSO. All Defendant provides in support of its privilege assertion is a contract between CCHHS and UHC stating CCHHS “acknowledges that is [sic] shall functionally report its patient safety events … in its Patient Safety Evaluation System … to UHC.” Defendant stops short of explicitly confirming the Report was reported to UHC, however, and instead makes the conclusory argument that the Report is patient safety work product because CCHHS “agreed to functionally report all of its patient safety events, which would include the [Report] at issue here.”
  • Even if Defendant did adequately demonstrate that the Report was functionally reported to UHC, however, the Report still would not be privileged. … Information generated or assembled for some other purpose, even if the information relates to quality improvement measures, is not considered patient safety work product…. Defendant has not shown in any way that the Report was generated with a PSO or patient safety evaluation system in mind. To the contrary, as Plaintiff points out, the Report is an internal document prepared in accordance with Jail Policy A–10 and focused on the issue of system failures. * * * Nowhere does the Policy mention the report will be provided to a PSO or a patient safety evaluation system, that the review and report are completed for the purpose of providing information to a PSO or patient safety evaluation system, or even that a PSO will have access to the report.