7-21-14; Confusion about Intrusion into Seclusion--When/How can Adjusters Record Statements by Joe D'Amato, JD; Matt Ignoffo Reports Great News for RUMC; Did the OD Act End for Some Workers and more

Synopsis: Can We Record or Not? Here is the Current State of Confusion for IL Claims Adjusters and Risk Managers. Analysis by Joseph F. D’Amato, J.D.

Editor’s comment: Constitutional challenges to IL eavesdropping statute leave our’ “two party consent status” up in the air. As risk managers, investigators and adjusters who regularly read this space are aware, Illinois was one of a dozen states where it was illegal to record a conversation you are having with another person (we are a so-called “two party consent” state). All parties to the conversation must agree to the recording to avoid liability in Illinois.

The statute criminalizing this behavior was known as the “eavesdropping statute.” The statute made it a crime to use an "eavesdropping device" to overhear or record a phone call or personal face-to-face conversation without the consent of all parties to the conversation. The law defined an "eavesdropping device" as "any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communication whether such conversation or electronic communication is conducted in person, by telephone, or by any other means." The law made no distinction as to whether the conversation is face-to-face or over the phone. Actually, cell phones memo applications could be used in a fashion that might cause legal liability under the old legislation.

In practice, if you were investigating an alleged accident and decided to take a claimant’s or witness’s recorded statement without his or her consent, you faced a class four felony and one to three years in prison. While Illinois is in the minority of states on this issue, it is unlikely we will be for long due to two relatively recent Illinois Supreme Court Decisions.

In People v. Melongo, Defendant serendipitously recorded three conversations between herself and the Assistant Administrator of the Cook County Court Reporter’s Office and posted the audio to her website. In People v. Clark, Defendant recorded a child support hearing without obtaining the consent of either the judge presiding over the hearing or the opposing attorney. Although the procedural methods in both cases differed, both Defendants challenged the Illinois Eavesdropping Statute on both First Amendment and so-called Substantive Due Process grounds. The Circuit Courts of Cook and Kane County, respectively, agreed the Illinois eavesdropping statute was unconstitutional. Attorneys for the state appealed the decisions all the way to the Illinois Supreme Court.

Without taking our readers on a journey through the academic trappings of both cases, the Illinois Supreme Court agreed the eavesdropping statute violated the First Amendment to the United States and Illinois Constitutions, primarily because the legislation was overly broad. The Court noted the public policy of the statute was to protect conversational privacy. However, the statute as written criminalized conversations never meant to be private. For example, the Court noted the statute criminalized and prohibited recording a loud argument on the street, a political debate in a park and any other conversation loud enough to be overheard by others whether in a private or public setting.

What does this mean for risk managers, investigators and claims adjusters looking to quickly take recorded statements without worrying about uncooperative claimants or witnesses? We point out the IL statute, although currently held to be unconstitutional, is still on the books but the situation is a little murky.

This does not mean, however, that recording of all communications is now universally permitted in Illinois:

• Recordings may still be subject to the one-party consent rule of the Federal wiretap act.
• Communications electronically reaching into other states may be subject to the wiretapping laws of the second state and not just Illinois.
• Secret recordings may still support an Illinois common-law claim for “intrusion into seclusion” or the privacy of another.
• Another Illinois statute, not necessarily affected by the decision in the Melongo case, makes it illegal to "videotape, photograph, or film" people without their consent in "a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom.”

At present, if you attempt to record a conversation without all parties’ consent you may be violating the precise terms of the law and you might still be subject to criminal prosecution. In practice, we feel it’s highly unlikely prosecutors will try to enforce the law as currently written in light of the IL Supreme Court’s rulings. Our advice to claims adjusters and risk managers taken statements in post-accident investigations—continue to ask for everyone’s consent. This is the best path to avoid litigation.

We also suspect these two decisions by our IL Supreme Court have sent the folks in Springfield scrambling to either amend the statute to make Illinois a “one party consent” state or try to create boundaries or rules where two-party consent may still be appropriate.. Stay tuned to this space for further updates.

This article was researched and written by Joe D’Amato, JD. Joe can be reached for questions and comments at jdamato@keefe-law.com or (312) 756-3708.

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Synopsis: Orthopedic Program at Rush University Medical Center Named Highest Ranked Program in Illinois and #6 in the Nation!!! Analysis by Matthew Ignoffo, J.D.

Editor’s Comment: U.S. News & World Report just released its 2014 rankings for the best hospitals in the nation and we are pleased to report our long-time client at Rush is right at the top. The Report reviewed 1,646 hospital orthopedic programs nationwide. All of these programs treat significant numbers of complicated inpatient cases. Rush is ranked in seven of 16 categories included in the magazine’s 2014-15 “America’s Best Hospitals” issue, which became available online on July 15, and is one of the two top-ranked hospitals in Illinois overall.

Rush remains among a small group of hospitals that rank highly in multiple specialties. Only 144 of the approximately 5,000 hospitals in the United States — approximately 3 percent — scored high enough this year to rank in even one specialty nationally by U.S. News.

Rush’s orthopedics program was ranked No. 6 nationwide, making it the highest ranked orthopedics program in Illinois. Rush’s other ranked programs were geriatrics (No. 17); neurology and neurosurgery (No. 17); nephrology (No. 31); urology (No. 43); cardiology and heart surgery (No. 46); and cancer (No. 48).

U.S. News also noted that the following Rush specialty services are “high-performing”: diabetes and endocrinology; ear, nose and throat; gastroenterology; gynecology; and pulmonary.

In fact, a hospital is reviewed only if it treated at least 338 such inpatients in 2010, 2011 and 2012. Other criteria used in the ranking were reputation with specialists, survival, patient safety, patient volume, nursing intensity and nurse magnet recognition.

As noted in the rankings article, Rush University Medical Center is a 669-bed general medical and surgical facility with 30,810 admissions in the most recent year reported. It performed 10,780 annual inpatient and 9,537 outpatient surgeries. Its emergency room had 55,519 visits. Rush University Medical Center is a teaching hospital.

RUMC It is also accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF). As many of you know, Rush's orthopedic program is entirely staffed by physicians from Midwest Orthopaedics at Rush, also the team physicians for the Chicago Bulls and Chicago White Sox.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at mignoffo@keefe-law.com.

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Synopsis: Did the Folta v. Ferro Engineering ruling end the IL OD Act for hundreds, even thousands of workers? What is the correct insurance coverage for these new claim—GL or EL?

Editor’s comment: We had one of our long-time readers ask an very important question after reading our article on the ruling in Folta. Illinois OD law states (in pertinent part): 

(f) No compensation shall be payable for or on account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease…

If you read that carefully, please note numerous IL OD claims, not just asbestosis, may be drawn into this new “exception” to the OD Act, if the Appellate Court’s ruling isn’t reversed. The provision above confirms IL OD claims require an employee to show “disablement” within two years of the date of exposure to a pathogen. The IL OD Act says nothing about “knowledge” of the ailing worker about the exposure to the pathogen.

In other IL OD rulings, “disablement” is defined as missing one day of work due to the exposure.

This new ruling appears to open up civil liability for OD claims against employers when the worker doesn’t know the link between the pathogen and the later illness until they become sick and/or suffer from an exposure but didn’t know the cause.Consistent with what we feel is the strained logic of Folta, it would appear their medical problems would have to extend past the OD statute of limitations/repose so they “weren’t covered” but could now sue the employer directly in circuit court.

This new ruling would appear to find the employee could sue their employer if they were exposed to a pathogen at work and didn’t know of the bad effects of exposure for a couple/three years. In our view, that happens a lot, particularly in the health care or nursing home field.

Again, if that theory remains IL law, it could open up hundreds of new civil claims for things like “bad building syndrome” where workers claim to be sick for years. To the extent this theory may be opening up lots of new litigation, what do you feel the appropriate coverage might be to protect Illinois employers from such claims?

We would love your thinking. Either way, we feel you need to let your underwriters know about it.