Loyola University Chicago School of Law, J.D. 2020
Cook County General Administrative Order 18-1 pertains to the Standard HIPAA Qualified Protective Orders (QPO) that will be permitted in Cook County. These orders will only be allowed for cases that are in litigation where the Plaintiff and Plaintiff’s counsel authorize disclosure of a litigants’ protected health information (PHI). It also requires all entities who received PHI to either return the documents to the Plaintiff or destroy them at the end of the case. These changes mean that Plaintiff’s attorneys will see a change in the handling of Plaintiff’s medical records and other documents covered under the QPO containing PHI.
Cook County General Administrative Order 18-1
Cook County General Administrative Order 18-1 replaced Orders 12-1 and 17-4 as the new Standard HIPAA Qualified Protective Order in Cook County, Illinois. As the order states, the sample QPO provided in the Administrative Order is the only order that will be accepted by Cook County judges after October 2018. These orders are used in litigation when a Plaintiff alleges an injury resulted from that the Defendant’s actions.
Until December 2017 when Cook County General Administrative Order 17-4 was entered, Defendants could utilize protective orders to obtain a Plaintiff’s PHI without the Plaintiff’s consent because the Plaintiff put their medical injuries at issue by filing an action. However, after Plaintiff’s counsel objected to their client’s PHI in medical records being retained for that length of time in Shull v. Ellis, the Cook County Circuit Court was left to balance Plaintiffs’ right to privacy and Defendant-insurer’s requirements under Illinois Insurance Code (IIC) to “retain nearly every type of document in their possession” for seven years. The result was a new QPO more in line with the language in HIPAA, with the addition of the Plaintiff’s signed consent and Plaintiff’s counsel’s signed consent.
The Compliance Measures
While this Administrative Order only applies to injury litigation in Cook County, the Cook County Circuit Court is well known for the number of injury litigation cases filed by Plaintiffs. Due to the sheer number of active injury cases in Cook County, providers throughout Cook and likely much of the state, will receive new the QPO throughout the coming years.
The good news is, the HIPAA language of any standard order put in place after October 2018 shouldn’t create complications for medical providers and Defendant’s counsel will change out their QPO, get the required signatures, and file as usual. However, many plaintiff’s attorneys in Cook County, Illinois, or representing clients with injury cases in Cook County should be aware of the duty they face under the new QPO. Not only do plaintiff’s attorneys have the duty to ensure their client is informed as to the release of their PHI under a QPO, but they now have a duty to ensure that their client’s PHI released under a QPO is either destroyed or returned per paragraph five of the QPO.
Paragraph five states, that at the conclusion of the lawsuit, anyone possessing documents containing PHI shall either agree to return the documents to the Plaintiff or Plaintiff’s counsel or destroy the documents. The two following paragraphs also require that PHI is only allowed to be requested or obtained as part of the discovery process involving a lawsuit and that documents containing PHI are not allowed to be filed with the Clerk of Circuit Court. All of these measures protect the Plaintiff’s PHI requested under a QPO, but they require new steps Plaintiff’s attorneys must comply with the QPO.
Cook County Circuit Court in Illinois has put into effect a new QPO in an effort to protect injured Plaintiff’s right to privacy of their PHI under HIPAA. The conclusion of an injury case in Cook County may mean additional work for Plaintiff’s attorneys if a QPO was utilized to obtain their client’s medical records or any other document containing PHI.