Effective January 1, 2020, Illinois enacted a new statute in response to the increasingly pervasive use of artificial intelligence, also known as AI, software by prospective employers. Proponents assert such software allows employers to zero in on and hire the best candidates more quickly and efficiently. Typically, these AI products use mobile video interviews with algorithms analyzing the prospective employee’s facial expressions, word choice, tone, body language and gestures to determine a candidate’s work style, ethic, cognitive ability, and interpersonal skills. Other AI tools might include AI review of resumes and algorithms to analyze an applicant’s response to interview or test questions or an applicant’s social media content. This is all done with the stated aim of finding the best candidate for the specific open position.
Illinois’ new statute, 820 ILCS 42/1, et seq., is among the first of its kind in the country. It addresses the use and disclosure of artificial intelligence video interviews, should an employee choose to utilize this still-emerging technology. The act, known as the Artificial Intelligence Video Interview Act, provides that an employer who asks applicants to record video interviews and uses AI analysis of the applicant-submitted videos must take certain steps. This includes (1) notifying each applicant before the interview that AI may be used to analyze the video and to evaluate and consider the applicant’s fitness for the position; (2) providing each applicant with information before the interview explaining how AI works and what general characteristics it uses to evaluate applicants; and (3) obtaining consent from the applicant. The Act also prohibits the sharing of applicant videos except with those whose expertise is necessary to evaluate the applicant. Applicants may request the destruction of the video interviews, and upon such a request, employers have 30 days within which to delete all copies of the videos, including those which might be in the possession of third-parties retained to evaluate them.
Interestingly, the statute does not define “artificial intelligence” or provide insight into what level of information is sufficient to meet the act’s explanation requirement. Also, by its terms, the act protects applicants based in Illinois, but does not indicate whether it is intended to apply to out-of-state employers hiring for a position located outside of Illinois. Finally, the act says nothing about enforcement, whether through a private cause of action for statutory damages or otherwise.
This new AI act is just one piece of an ever-increasing legal puzzle of already-enacted laws and pending legislation, both nationally and worldwide, seeking to address the use of AI in the hiring process and the protection of such data. In Illinois, another puzzle piece is the Biometric Information Privacy Act, 740 ILCS 14/1, et seq., regulating the collection and storage of biometric identifiers and providing for a broad private right of action for violations. The challenge for employers will be managing all such laws, at both the state and federal levels, to ensure compliance and avoid any resulting liability from a failure to comply. At a bare minimum, the implementation of Illinois’ AI Video Interview Act should encourage employers to exercise caution when considering or implementing hiring practices involving AI.
First Judicial District Appellate Court of Illinois Upholds Motion for Directed Verdict in Medical Malpractice ClaimDecember 26, 2019 | Paul Venker and Laura Beasley
In Ludgarda R. Castillo and Richard Castillo v Jeremy Stevens, M.D. and The Center for Athletic Medicine, LTD., 1029 IL App (1st) 172958, the Court reviewed several issues, and held that a plaintiff’s medical expert in a successful informed consent claim must testify to a breach of the applicable standard of care for the allegedly negligently obtained consent.
Ludgarda Castillo sought treatment in 2004 after suffering from right knee pain and was diagnosed with a 17-degree valgus deformity of her right femur. To correct the valgus deformity, defendant Dr. Stevens performed a right distal femoral open wedge osteotomy, but during this procedure the medial cortex fractured. This required Dr. Stevens to intra-operatively install a condylar plate obliquely to achieve the desired degree of correction. The procedure properly aligned the femur to correct the valgus deformity. However, sometime after the procedure, plaintiff was diagnosed as having a nonunion of the femur. Plaintiff underwent a revision surgery in 2005. Although, plaintiff healed from her surgeries, she still had continuing complaints of pain and functional limitation.
In 2011, plaintiff filed suit against Dr. Stevens claiming, among other things: (1) that he failed to advise her of the risks of intra-operative medial cortex fracture and subsequent nonunion; and, (2) that a reasonable person in her position would not have consented to the osteotomy had those risks been fully disclosed to her such that she could understand them. The trial court granted defendant’s motion for directed verdict. It found that plaintiff failed to present any expert testimony that Dr. Stevens failed to comply with the applicable standard of care in how he advised plaintiff of the risks of the procedure. Plaintiff appealed.
On appeal, plaintiff argued that expert testimony was required only to establish the applicable standard of care as to the performance of the procedure, but not for whether a physician failed to give adequate explanation of the risks. Citing to Coryell v. Smith, 274 Ill. App. 3d 543, 545 (1995), the appellate court reviewed the four elements of an informed consent claim: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and, (4) plaintiff was injured by the proposed treatment. Id at 546.
The appellate court found that it was clear from the record that plaintiff presented expert testimony only to establish: 1) the standard of care was that non-surgical treatment should been pursued instead of surgery; and, 2) generally as to what surgical risks Dr. Stevens had a duty to disclose. However, plaintiff failed to provide expert testimony that Dr. Stevens failed to comply with applicable standard of care as to the manner in which he was to advise plaintiff of the risks of the surgery. Unlike the Coryell case, which held that once an expert establishes the applicable standard of care, the jury is equipped to determine the third element of proximate cause, this court focused on both the second and third elements of the informed consent claim.
The appellate court agreed with the trial court’s ruling that it is a well-established principle of law that a plaintiff’s expert was required to testify not only to the standard of care as to the medical care at issue, but also as to the details which the physician failed to fully discuss with plaintiff to show the standard of care was not met in disclosing to plaintiff the material risks of the treatment. The appellate court clearly rejected plaintiff’s subjective testimony that she was not fully informed as to the risks, part of which her concession that Dr. Stevens could have told her more about the procedure than she remembered.
This opinion should provide clarity on the issue of the necessity of expert testimony on whether a physician properly obtained informed consent, which is an objective standard, based on the consensus of medical practitioners. If the court had reversed the directed verdict for the physician, it would have potentially opened the floodgates for claims based solely on a lay person’s subjective perspective on their lack of understanding of the risks.
This intermediate appellate court opinion may be subject to further appellate review by the Illinois Supreme Court.
In Sparger v. Yamini, plaintiff, on behalf of his minor-daughter, filed a medical malpractice lawsuit against a Chicago-area hospital and a neurosurgeon (collectively “defendants”). Plaintiff alleged that the surgeon’s negligence in repairing the minor-plaintiff’s spinal fluid leak caused her to subsequently develop meningitis. Plaintiff’s Complaint included a claim for compensation for brain damage suffered by minor-plaintiff, including a detrimental effect on the minor plaintiff’s “cognitive, emotion[al], and behavioral presentation.”
Defendants sought minor-plaintiff’s medical records from two hospitals predating the medical care at issue. Plaintiff’s counsel declined to produce the records, asserting that they were privileged and non-discoverable under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (“MHA”) as containing information pertaining to the minor-plaintiff’s mental health treatment. In lieu of production, plaintiff’s counsel provided a limited and redacted version of one of the records sought, while declining entirely to produce the records pertaining to a different hospitalization.
Defendants argued that the minor-plaintiff placed her mental health at issue by claiming the alleged injury affected her cognitive, emotional, and behavioral presentation and that the records sought were relevant to her presentation before the alleged injury, thereby falling into a narrow exception to the MHA regarding mental condition. The circuit court granted defendants’ Motion to Compel ordered plaintiff’s counsel to produce the entirety of the records withheld.
Plaintiff’s counsel refused to produce the records and was placed in “friendly” contempt of court for violation of the discovery order. Plaintiff’s counsel appealed the finding of contempt (a finding of which is final and appealable under Illinois case law (see Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002)). On appeal, plaintiff’s counsel argued that because plaintiff was not seeking compensation for any emotional injuries to minor-plaintiff, her mental health had not been placed at issue.
On review, the Illinois Appellate Court for the First District reversed the trial court’s ruling and stated that plaintiff had not placed minor-plaintiff’s mental condition at issue by claiming brain damage and cited the prior decision of the Illinois Supreme Court in Reda v. Advocate Health Care, 199 Ill. 2d 47, 50 (2002).
In Reda, plaintiff alleged medical negligence in diagnosis and treatment of an acute thrombosis in his right leg which allegedly resulted in a subsequent stroke. Id. at 50-51. Plaintiff’s treating healthcare providers refused to provide records, citing their protection under MHA. Id. at 51. The trial court ordered production of the records, and the Appellate Court affirmed. The Supreme Court reversed both lower courts, stating “neurological injury is not synonymous with psychological damage…[n]or does neurological injury directly implicate psychological damage.” Id. at 58.
The Appellate Court further distinguished a case from the Appellate Court for the Third District, Phifer v. Gingher, 2017 IL App (3d) 160170. In Phifer, plaintiffsought damages for “psychiatric, psychological, and/or emotional injuries” resulting from an automobile collision. Defendant requested medical records prior to the collision, plaintiff refused, and the trial court granted defendant’s Motion to Compel. Id. at 13-19. The Phifer Court, distinguishing Reda, held that plaintiff placed her mental condition at issue by alleging that she was caused “great pain and anguish both in mind and body.” Id. at 28.
The Appellate Court distinguished the facts of the current case from Phifer because plaintiff specifically stipulated that he was “not seek[ing] damages based on psychiatric, psychological and emotional damages and did not allege [minor-plaintiff] suffered pain and anguish in mind and body, nor [that he claimed] psychiatric or psychological injuries.”
The Appellate Court also rejected defendants’ argument that fundamental fairness required disclosure of the records and distinguished another case cited by defendants, D.C v. S.A., 178 Ill. 2d 551 (1997). In D.C v. S.A., the Illinois Supreme Court held that an exception to the MHA privilege may exist in certain circumstances where the medical records sought have the potential to absolve defendant of all liability and fully negate plaintiff’s claim. Id. at 570. Such an exception included those records establishing that the plaintiff suffered an injury as a result of an attempted suicide, and not an unrelated negligent act, as the plaintiff had initially contended. In distinguishing the present case, the Appellate Court found that the records sought here did not pertain to the absolution of defendants’ liability, but rather to minor-plaintiff’s damages.
The Sparger opinion is notable not only in its ruling regarding the narrow exceptions prescribed by the MHA, but also in the fact that none of the courts and their respective opinions referenced herein attempted to define what specific claims constitute a “neurological injury” versus a “psychological injury.” Instead, the Appellate Court in the instant case held that because the plaintiff’s neuropsychology expert concluded that minor-plaintiff experienced a traumatic brain injury as a result of the alleged negligence, the claims were neurological rather than psychological.
Defense counsel should expect plaintiffs’ attorneys to continue pursuing the argument that plaintiffs’ alleged injuries are neurological as opposed to psychological, even in light of alleged emotional and behavioral effects, in an effort to conform their cases to this decision and attempt to prevent access to relevant mental health records.
Sparger v. Yamini, 2019 IL App (1st) 180566.
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