• Illinois Health Care Surrogate Act No Longer Applies to Patient after Discharge
  • June 30, 2008
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Brief Overview
    On April 14, 2008, the Illinois Appellate Court held that once a patient who lacks decisional capacity is no longer under the care of a health care provider, the Illinois Health Care Surrogate Act ceases to apply and the nominations for health care surrogates are terminated. Specifically, there was no basis to refuse the patient’s request for medical records after the patient had been discharged from the nursing home. Bergland v. IDPH, ___N.E.2d ___, 2008 WL 1787964 (Ill.App.3 Dist.)

    Summary
    Plaintiff, the daughter of a discharged nursing home patient, appealed the decision of the Illinois Department of Public Health (IDPH) that granted summary judgment in favor of the Rosewood Care Center (Rosewood), which denied the plaintiff copies of her mother’s medical records. After the plaintiff’s mother was discharged from Rosewood, the plaintiff’s mother and father submitted a written request to Rosewood asking that a copy of the mother’s medical records be sent to the plaintiff. The request identified the plaintiff as the sole contact as well as the intended recipient of the records. Included in the mother’s medical records at Rosewood, was a “Health Care Surrogate: Physician Certification” that indicated that two of the mother’s other children were appointed as surrogate decision makers regarding their mother’s health care decisions.

    Rosewood’s administrator contacted one of the identified surrogates (not the plaintiff) and sent her a copy of her mother’s records. Sometime during the administrative review of this matter, the identified surrogate consented to the release of the medical records to the plaintiff. While the surrogate ultimately consented to the release of her mother’s medical records, the dispositive issue before the Court was whether the Health Care Surrogate Act (the Surrogate Act; 755 ILCS 40/1 et seq.) applied to a discharged nursing home resident. The plaintiff argued that the Surrogate Act did not apply because her mother had been discharged from Rosewood at the time of the request. The Court held that the Surrogate Act did not apply to the plaintiff’s mother because she had been discharged from Rosewood.

    The Surrogate Act requires the health care provider to maintain a patient’s advance directives for the duration of the patient’s stay. The Surrogate Act generally applies to patients who lack decisional capacity; therefore, it stands to reason that a surrogate appointment form would be among those to be included with other treatment decision documents in the patient’s file. Furthermore, if documents such as a power of attorney for health care must be maintained only for the duration of the patient’s stay, the appointment of a surrogate to make various treatment decisions should be similarly limited.

    The Court ultimately held that because the plaintiff’s mother was no longer a patient when the request for records was made, Rosewood erred in refusing to release the medical records based on the surrogate’s refusal to consent. Moreover, once a patient who lacks decisional capacity is no longer under the care of a health care provider, the Surrogate Act ceases to apply and the nominations for health care surrogates are terminated. This case emphasizes the failure of the Surrogate Act to provide any statutory direction for requests by patients who still may be disabled but who are no longer receiving care at a health care facility. While this decision involved a nursing home, it is reasonable to assume that it applies to all health care facilities covered by the Surrogate Act, including hospitals, medical centers, and long-term or tertiary care facilities.