Popovits & Robinson - Client Advisories

1. United States Supreme Court: Forced Medication to Render Mentally Ill Defendant Competent to Stand Trial Allowable Only in Limited Circumstances

The Supreme Court struck down an order to forcibly medicate a defendant awaiting trial on fraud charges. In a 6-3 decision handed down June 16, the Court recognized a fundamental interest in being free from involuntary medication. The Court held that the Constitution permits the government to administer drugs involuntarily to mentally ill defendants so that they may be competent to stand trial, but only in very limited circumstances. The Court said that in order to forcibly administer antipsychotic drugs to a defendant, the treatment must be: (i) medically appropriate; (ii) substantially unlikely to have side effects that may undermine the fairness of the trial; and (iii) necessary to further important governmental interests.
[Sell v. United States, No. 02-5664 (U.S. Sup. Ct., June 16, 2003)].

2. Physician’s Letter To Department Chair Not Privileged Under Medical Studies Act

In a medical malpractice action, the Illinois Appellate Court, First District has held that a physician’s letter to a department chairperson describing events related to a patient’s treatment was not privileged under the Medical Studies Act. The court held that the Act limits the peer-review privilege to information initiated, created, prepared or generated by a peer-review committee and, therefore, does not apply to the letter.
[Berry v. West Suburban Hospital Medical Center, 2003 WL 1477812 (Ill. App. 1st Dist., 2003)].

3. Hospital Had No Duty to Preserve Policies and Procedures

In another medical malpractice action, the plaintiff sought to introduce four policies and procedures, adopted in 1998, as being the policies and procedures in effect at the time of injury in 1996. The hospital destroyed the 1996 versions of the policies during its normal updating process. The plaintiff argued that the hospital had a duty to preserve the 1996 policies. The court found that the hospital did not have a duty to preserve the 1996 policies and procedures because it would not have foreseen that the policies and procedures were material to the litigation. The 1998 documents were not proven to be relevant and were excluded.
[Smith v. Silver Cross Hospital, 2003 WL 21107135 (Ill. App. 1st Dist., 2003)].

4. Initiation by Non-State Hospital of Involuntary Commitment to State Hospital

5. No Proof of Chain of Custody Required for Blood Sample

The Illinois Appellate Court, Third District, has held that the report of a DUI defendant’s blood alcohol concentration (“BAC”) is admissible as a business record, and no chain of custody of the blood sample must be proved where the sample was ordered in the regular course of emergency medical treatment.

The defendant was treated at a hospital following an auto accident and a blood sample was taken and tested for BAC. The defendant argued that the State should be barred from introducing the hospital lab report at trial because the sample was requested by a police officer rather than a doctor. The Court held that the blood sample was ordered by the emergency room doctor who treated the defendant, and was tested by the hospital lab and was continuously in the hospital’s custody. Therefore, the sample is admissible.
[People v. Henderson, 786 N.E.2d 552 (Ill. App. 3d Dist., 2003) ].

6. Blood Alcohol Sample Disclosure Permissible Under HIPAA Law Enforcement Exception

In a case decided by the Texas Court of Appeals, the Court held that the disclosure of medical records under HIPAA was permissible because the information was disclosed for law enforcement purposes.

The defendant had pleaded guilty to driving while intoxicated. A grand jury subpoena was issued requesting the defendant’s medical records from a hospital. The medical records showed that the defendant’s blood alcohol was 0.18. The case was appealed to determine whether the trial court erred in denying the defendant’s motion to suppress blood test results and whether a grand jury subpoena under which the defendant’s medical information was obtained was overly broad.

The Court confirmed the defendant’s conviction, holding that there was no reasonable expectation of privacy that protected the record of blood test results from being given to law enforcement officers pursuant to a grand jury subpoena and that the defendant had no standing to challenge either the reasonableness of the search or any defects in the grand jury subpoena process. Furthermore, the Court held that the disclosure of medical records under HIPAA was permissible when the information was disclosed for law enforcement purposes and was obtained pursuant to a grand jury subpoena. Additionally, the Court held that the defendant’s claim that the subpoena was overly broad would not be addressed because the defendant failed to show that his medical records, other than his blood test results, contributed to the State’s leverage in the plea bargaining process.
[Harmon v. State, 2003 Tex. App. LEXIS 6172 (Tex. App. Ct., July 17, 2003)].

7. No Claim for Breach of Implied Warranty of Merchantability for Defective Medical Device Because Transaction Between Hospital and Plaintiff was Primarily for Services and Not Goods

The plaintiff had a medical device surgically implanted at the defendant hospital. Later, the manufacturer of the medical device issued a voluntary recall because of possible complications. The plaintiff suffered serious complications from the device and sued the manufacturer of the medical device as well as the hospital.

The Illinois Supreme Court held that the hospital cannot be sued for breach of an implied warranty of merchantability under the Uniform Commercial Code (UCC) because the transaction in question was primarily for services and the purchase of goods was incidental to the transaction. The Court stated that there was no transaction of goods as contemplated under the UCC, that the majority of the hospital charges were for services and not goods, and that the medical device itself only accounted for a small fraction of the total charges. The Court also looked at the nature of the transaction as a whole. The Court determined that the medical device served the Plaintiff no purpose and was only of use to the Plaintiff in connection with the surgical procedure. The Court noted that it is following a “national trend” which holds that a hospital’s provision of a defective surgical device is primarily a transaction of services rather than goods and that therefore there is no implied warranty of merchantability.
[Brandt v. Boston Scientific Corp., No.93982 (Ill. Sup Ct. 2003)].


September 2003 - RECENT COURT DECISIONS
1. United States Supreme Court: Forced Medication to Render Mentally Ill Defendant Competent to Stand Trial Allowable Only in Limited Circumstances The Supreme Court struck down an order to forcibly medicate a defendant awaiting trial on fraud charges. In a 6-3 decision handed down June 16, the Court recognized a fundamental interest in being free from involuntary medication. The Court held that the Constitution permits the government to administer drugs involuntarily to mentally ill defendants so that they may be competent to stand trial, but only in very limited circumstances. The Court said that in order to forcibly administer antipsychotic drugs to a defendant, the treatment must be: (i) medically appropriate; (ii) substantially unlikely to have side effects that may undermine the fairness of the trial; and (iii) necessary to further important governmental interests. [Sell v. United States, No. 02-5664 (U.S. Sup. Ct., June 16, 2003)]. 2. Physician’s Letter To Department Chair Not Privileged Under Medical Studies Act In a medical malpractice action, the Illinois Appellate Court, First District has held that a physician’s letter to a department chairperson describing events related to a patient’s treatment was not privileged under the Medical Studies Act. The court held that the Act limits the peer-review privilege to information initiated, created, prepared or generated by a peer-review committee and, therefore, does not apply to the letter. [Berry v. West Suburban Hospital Medical Center, 2003 WL 1477812 (Ill. App. 1st Dist., 2003)]. 3. Hospital Had No Duty to Preserve Policies and Procedures In another medical malpractice action, the plaintiff sought to introduce four policies and procedures, adopted in 1998, as being the policies and procedures in effect at the time of injury in 1996. The hospital destroyed the 1996 versions of the policies during its normal updating process. The plaintiff argued that the hospital had a duty to preserve the 1996 policies. The court found that the hospital did not have a duty to preserve the 1996 policies and procedures because it would not have foreseen that the policies and procedures were material to the litigation. The 1998 documents were not proven to be relevant and were excluded. [Smith v. Silver Cross Hospital, 2003 WL 21107135 (Ill. App. 1st Dist., 2003)]. 4. Initiation by Non-State Hospital of Involuntary Commitment to State Hospital In another medical malpractice action, the plaintiff sought to introduce four policies and procedures, adopted in 1998, as being the policies and procedures in effect at the time of injury in 1996. The hospital destroyed the 1996 versions of the policies during its normal updating process. The plaintiff argued that the hospital had a duty to preserve the 1996 policies. The court found that the hospital did not have a duty to preserve the 1996 policies and procedures because it would not have foreseen that the policies and procedures were material to the litigation. The 1998 documents were not proven to be relevant and were excluded. [Smith v. Silver Cross Hospital, 2003 WL 21107135 (Ill. App. 1st Dist., 2003)]. 5. No Proof of Chain of Custody Required for Blood Sample The Illinois Appellate Court, Third District, has held that the report of a DUI defendant’s blood alcohol concentration (“BAC”) is admissible as a business record, and no chain of custody of the blood sample must be proved where the sample was ordered in the regular course of emergency medical treatment. The defendant was treated at a hospital following an auto accident and a blood sample was taken and tested for BAC. The defendant argued that the State should be barred from introducing the hospital lab report at trial because the sample was requested by a police officer rather than a doctor. The Court held that the blood sample was ordered by the emergency room doctor who treated the defendant, and was tested by the hospital lab and was continuously in the hospital’s custody. Therefore, the sample is admissible. [People v. Henderson, 786 N.E.2d 552 (Ill. App. 3d Dist., 2003) ]. 6. Blood Alcohol Sample Disclosure Permissible Under HIPAA Law Enforcement Exception In a case decided by the Texas Court of Appeals, the Court held that the disclosure of medical records under HIPAA was permissible because the information was disclosed for law enforcement purposes. The defendant had pleaded guilty to driving while intoxicated. A grand jury subpoena was issued requesting the defendant’s medical records from a hospital. The medical records showed that the defendant’s blood alcohol was 0.18. The case was appealed to determine whether the trial court erred in denying the defendant’s motion to suppress blood test results and whether a grand jury subpoena under which the defendant’s medical information was obtained was overly broad. The Court confirmed the defendant’s conviction, holding that there was no reasonable expectation of privacy that protected the record of blood test results from being given to law enforcement officers pursuant to a grand jury subpoena and that the defendant had no standing to challenge either the reasonableness of the search or any defects in the grand jury subpoena process. Furthermore, the Court held that the disclosure of medical records under HIPAA was permissible when the information was disclosed for law enforcement purposes and was obtained pursuant to a grand jury subpoena. Additionally, the Court held that the defendant’s claim that the subpoena was overly broad would not be addressed because the defendant failed to show that his medical records, other than his blood test results, contributed to the State’s leverage in the plea bargaining process. [Harmon v. State, 2003 Tex. App. LEXIS 6172 (Tex. App. Ct., July 17, 2003)]. 7. No Claim for Breach of Implied Warranty of Merchantability for Defective Medical Device Because Transaction Between Hospital and Plaintiff was Primarily for Services and Not Goods The plaintiff had a medical device surgically implanted at the defendant hospital. Later, the manufacturer of the medical device issued a voluntary recall because of possible complications. The plaintiff suffered serious complications from the device and sued the manufacturer of the medical device as well as the hospital. The Illinois Supreme Court held that the hospital cannot be sued for breach of an implied warranty of merchantability under the Uniform Commercial Code (UCC) because the transaction in question was primarily for services and the purchase of goods was incidental to the transaction. The Court stated that there was no transaction of goods as contemplated under the UCC, that the majority of the hospital charges were for services and not goods, and that the medical device itself only accounted for a small fraction of the total charges. The Court also looked at the nature of the transaction as a whole. The Court determined that the medical device served the Plaintiff no purpose and was only of use to the Plaintiff in connection with the surgical procedure. The Court noted that it is following a “national trend” which holds that a hospital’s provision of a defective surgical device is primarily a transaction of services rather than goods and that therefore there is no implied warranty of merchantability. [Brandt v. Boston Scientific Corp., No.93982 (Ill. Sup Ct. 2003)].
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