Kiersten v. Edward Hospital ( 2017 )

2017 IL App (2d) 160972No. 2-16-0972
Opinion filed September 5, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
ABIGAIL KIERSTEN GROSSHUESCH, ) Appeal from the Circuit Court
Independent Administrator of the Estate of
) of Du Page County.
Isabella Kitsen Zormelo, Deceased, )
)
Plaintiff-Appellee, )
)
v. ) No. 15-L-464
)
EDWARD HOSPITAL, DU PAGE )
NEONATOLOGY ASSOCIATES, S.C., )
MICHAEL J. FITZGERALD, LESLIE )
FAROLAN, DEANNA L. HOLLEMAN- )
DURAY, ROBERT F. COVERT, and )
RAJEEV S. DIXIT, )
)
Defendants ) Honorable
) Ronald D. Sutter,
(Edward Hospital, Defendant-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Hudson and Justice Birkett concurred in the judgment and opinion.
OPINION
¶1 The defendant Edward Hospital claims that certain of its documents are confidential and
that the circuit court of Du Page County should not have ordered it to produce them during
discovery in a civil case. Edward Hospital insists that the Medical Studies Act (735 ILCS 5/8-
2101 et seq. (West 2014)) protects those documents from disclosure. We agree with the trial
court that all the documents at issue should be produced.
2017 IL App (2d) 160972¶2 BACKGROUND
¶3 On October 13, 2013, the plaintiff, Abigail Kiersten Grosshuesch, was admitted to
Edward Hospital. She was 30 weeks’ pregnant and the baby, Isabella Kitsen Zormelo, was born
that day. Isabella suffered from numerous medical issues, including necrotizing entercolitis.
Isabella died on November 1, 2013.
¶4 In December 2013, the plaintiff contacted Edward Hospital’s patient advocate and
expressed concern about the care and treatment rendered to her and Isabella. Pursuant to Edward
Hospital’s medical staff quality committee (MSQC) charter and its peer-review policy (both
enacted in 2008), the plaintiff’s concern in conjunction with Isabella’s death constituted “review
indicators” resulting in a referral to the MSQC. Nancy Rosenbery, in her capacity as the MSQC
liaison, consulted two expert peer reviewers—each a member of the hospital’s medical staff with
the same specialty as the physician whose care was being reviewed. One peer reviewer reviewed
and commented on the obstetrical care given to the plaintiff, and one peer reviewer commented
on the neonatal care given to Isabella. Rosenbery then entered her notes on each peer reviewer’s
input, including the reviewer’s conclusion and/or requests for additional information, into an
electronic database on February 24 and 25, 2014. The MSQC considered these notes when it
met on March 5 and April 2, 2014.
¶5 On October 31, 2014, the plaintiff filed a complaint against Edward Hospital and other
defendants. As pertinent to this appeal, on October 21, 2015, the plaintiff filed a second
amended complaint, which included two counts. Count I was a wrongful-death action, seeking
to recover for Isabella’s death. Count II was a survival action, seeking to recover for injuries
sustained by Isabella between the date of her birth and the date of her death. The plaintiff
subsequently issued a written discovery request to Edward Hospital, seeking all documentation
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2017 IL App (2d) 160972regarding the care of Isabella. Edward Hospital refused to disclose the notes Rosenbery authored
on February 24 and 25, 2014, asserting that they were privileged pursuant to the Medical Studies
Act.
¶6 On March 3, 2016, the plaintiff filed a motion to compel an in camera inspection of the
allegedly privileged documents.
¶7 On August 3, 2016, the trial court conducted a hearing on the plaintiff’s motion. In
support of its claim of privilege, Edward Hospital submitted the affidavit of Christine Koman,
the system claims counsel for Edward-Elmhurst Health. She stated that the MSQC, in
conjunction with Edward Hospital’s medical executive committee of the medical staff,
promulgated the peer-review policy. The purpose of that policy was to improve the overall
quality of care rendered and to reduce morbidity and mortality. She further stated that, after the
plaintiff expressed her concerns about the care that she and Isabella had received, the matter was
referred to the MSQC for peer review pursuant to the peer-review policy. Koman concluded that
the information and conclusions resulting from the peer-review investigation—which were later
provided to the MSQC for its consideration and evaluation, consistent with the peer review
policy—were part of the internal quality-control process and therefore privileged.
¶8 At the close of the hearing, the trial court ruled that the notes Rosenbery had authored on
February 24 and 25, 2014, which contained information acquired before the MSQC met, must be
produced because Koman’s affidavit was insufficient to raise a privilege. The trial court
explained that there was nothing in Koman’s affidavit showing when the MSQC requested the
investigation to begin or which member of the MSQC requested the investigation to begin. The
trial court further found that Koman’s affidavit did not establish that the MSQC was engaged in
the peer-review process for this occurrence prior to the March 2014 meeting.
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2017 IL App (2d) 160972¶9 On August 19, 2016, Edward Hospital filed a motion to reconsider and supported it with
a second affidavit from Komen. In that affidavit, Koman stated that the MSQC had instructed
Rosenbery, in her capacity as the MSQC liaison, to assist it by coordinating the investigation into
the plaintiff’s concerns for the purpose of quality control and improvement and the reduction of
morbidity and mortality. As part of her investigation, Rosenbery worked with consultants who
reviewed the care that the plaintiff and Isabella had received. On February 24 and 25, 2014,
Rosenbery authored notes based on her investigation. Komen further asserted that Rosenbery’s
notes “served an integral function in the peer review gathering and decision making process and
serve as documentation vital to the process of improving the quality and care rendered at Edward
Hospital.”
¶ 10 On October 12, 2016, following a hearing, the trial court denied Edward Hospital’s
motion to reconsider.
¶ 11 On October 26, 2016, after Edward Hospital continued to refuse to disclose Rosenbery’s
notes, the trial court found Edward Hospital in contempt and imposed a fine of $1 per day until
Edward Hospital complied with the trial court’s order. Edward Hospital appeals from that order.
¶ 12 ANALYSIS
¶ 13 On appeal, Edward Hospital argues that the trial court erred in ordering disclosure of
Rosenbery’s notes from February 24 and 25, 2014, because those notes are privileged under the
Medical Studies Act. Specifically, Edward Hospital contends that the MQSC’s peer-review
policy provides that, if certain indicators are met (such as the death of a patient and a concern
raised about that death), then an investigation begins. Edward Hospital insists that, because the
peer-review policy authorized the investigation, everything that was discovered through that
investigation is privileged under the Medical Studies Act.
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2017 IL App (2d) 160972¶ 14 Whether the Medical Studies Act’s privilege applies is a question of law, which is
reviewed de novo; however, whether specific materials are part of an internal quality-control
process “is a factual question,” on which the defendant bears the burden. Berry v. West
Suburban Hospital Medical Center, 338 Ill. App. 3d 49, 53-54 (2003). The trial court’s factual
determination will not be reversed “unless it is against the manifest weight of the evidence.” Id.
at 54. A decision is against the manifest weight of the evidence if it is unreasonable, arbitrary, or
not based upon the evidence. Freese v. Buoy, 217 Ill. App. 3d 234, 244 (1991).
¶ 15 The purpose of the Medical Studies Act is to encourage candid and voluntary studies and
programs used to improve hospital conditions and patient care or to reduce the rates of death and
disease. Niven v. Siqueira, 109 Ill. 2d 357, 366 (1985). The Medical Studies Act is premised on
the belief that, absent the statutory peer-review privilege, physicians would be reluctant to sit on
peer-review committees and engage in frank evaluations of their colleagues. Richter v.
Diamond, 108 Ill. 2d 265, 269 (1985). Documents generated specifically for the use of a peer-
review committee receive protection under the Medical Studies Act. Toth v. Jensen, 272 Ill.
App. 3d 382, 385 (1995). However, the Medical Studies Act does not protect against disclosure
of information generated before the peer-review process began. Chicago Trust Co. v. Cook
County Hospital, 298 Ill. App. 3d 396, 403 (1998).
¶ 16 We find that Edward Hospital’s argument is contrary to over 20 years of precedent
establishing that the Medical Studies Act cannot be used to conceal relevant evidence that was
created before a quality-assurance committee or its designee authorized an investigation into a
specific incident. See, e.g., Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993); Chicago Trust,
298 Ill. App. 3d 396; Berry, 338 Ill. App. 3d 49; Kopolovic v. Shah, 2012 IL App (2d) 110383;
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2017 IL App (2d) 160972Lindsey v. Butterfield Health Care II, Inc., 2017 IL App (2d) 160042; Nielson v.
SwedishAmerican Hospital, 2017 IL App (2d) 160743.
¶ 17 In Roach, the parents of a child with birth defects brought a medical malpractice claim
against the hospital where the child was born and against the mother’s obstetricians. The child’s
birth defects allegedly resulted from problems with the mother’s anesthesia. After the child’s
birth, the hospital’s chief of anesthesiology spoke with a nurse and a nurse anesthesiologist about
the cause of the defects. These conversations occurred well before the monthly meeting of the
hospital’s peer-review committee. The parents sought to compel the chief of anesthesiology to
disclose the contents of these conversations. The hospital objected, citing the Medical Studies
Act. The hospital asserted that, because the chief of anesthesiology was on the peer-review
committee, his communications were privileged. The supreme court rejected the hospital’s
argument, holding that, where the committee is composed of the hospital’s medical staff, the
committee must be involved in the peer-review process before the privilege will attach. Roach,
157 Ill. 2d at 40. The supreme court explained:
“If the simple act of furnishing a committee with earlier-acquired information were
sufficient to cloak that information with the statutory privilege, a hospital could
effectively insulate from disclosure virtually all adverse facts known to its medical staff,
with the exception of those matters actually contained in a patient’s records.” Id. at 41.
¶ 18 In Chicago Trust, a hospital patient’s ventilator accidently became disconnected. He then
lapsed into a coma and suffered brain damage. The plaintiff filed a malpractice action against
the hospital and sought discovery of certain incident and situation reports that hospital staff
members created shortly after the ventilator accident. The hospital refused to disclose the
reports. The hospital asserted that the reports were prepared at the request of the hospital
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2017 IL App (2d) 160972oversight committee and were an integral part of the quality-assurance process. The trial court
ordered that the reports be disclosed. After the hospital still refused to produce the reports, the
trial court held the hospital in contempt. Chicago Trust, 298 Ill. App. 3d at 398-401.
¶ 19 On appeal, the reviewing court held that the trial court properly ruled that the reports at
issue should be disclosed. Id. at 406. The court explained that documents initiated, created,
prepared, or generated by a peer-review committee are privileged under the Medical Studies Act;
conversely, documents that are created in the ordinary course of the hospital’s medical business
or for later corrective action by the hospital staff are not. Id. at 402-03. The court specifically
rejected the hospital’s suggestion that its oversight committee could invoke the Medical Studies
Act’s protection by declaring in advance that all incident documents prepared by the hospital
staff were part of the peer-review process. Id. at 406. The court explained:
“The Hospital’s position goes too far. Such a policy, if effective, would swallow
the rule. The [Medical Studies] Act would not create exceptions to disclosure. It would
make everything confidential, except for the patient’s own medical records.” Id.
¶ 20 In Berry, the plaintiff sought to compel the defendant hospital to produce a letter written
to the chair of the hospital’s obstetrics and gynecology department by a physician involved in the
incident at issue, regarding the facts of the incident. The hospital claimed that the letter was
privileged under the Medical Studies Act and refused to produce it. Specifically, the hospital
argued that the submission of such letters or reports was the prescribed method of initiating the
internal quality-control process at the hospital. The appellate court rejected this argument,
finding that the letter was not privileged as a report or statement used in the course of internal
quality control, because the hospital’s procedure did not transform letters or reports written by
doctors into “information of” a quality-control committee, as required under the Medical Studies
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2017 IL App (2d) 160972Act. Berry, 338 Ill. App. 3d at 54. “Even if the *** letter notified [the department chair, as a
representative] of the investigatory committee[,] of a potential quality control issue, the Medical
Studies Act’s privilege does not apply because the *** letter was information of the Hospital’s
staff rather than information of any committee, peer-review or otherwise.” Id. The appellate
court commented that the physician who wrote the letter could not successfully argue that she
was acting on behalf of the department or a quality-control committee when she wrote the letter,
because the department clearly was not aware of the incident until after it received the letter and
it did not meet to discuss the letter until months after the letter was written. Id. at 56.
¶ 21 In Kopolovic, this court held that a memorandum written by an anesthesiologist who was
not a member of any peer-review or quality-control committee, expressing his concerns about
alleged deception concerning a recent surgical procedure by a plastic surgeon, was not privileged
under the Medical Studies Act. Kopolovic, 2012 IL App (2d) 110383, ¶ 36. The memo was
written at the suggestion of the president and another member of the board of the defendant
surgical center, and it was addressed to the board, the consulting committee (the center’s peer-
review and credentialing committee), and the surgeon. We rejected the anesthesiologist’s
argument that the memo was privileged because he sought to bring to light practices that he
viewed as unethical. Id. ¶ 21. We noted that the case law (Roach and Grandi v. Shah, 261 Ill.
App. 3d 551 (1994)) held that the privilege applied to information generated or created by a
committee already engaged in the peer-review or quality-control process with regard to the
incident at issue. Kopolovic, 2012 IL App (2d) 110383, ¶¶ 24-26. Even though the content of
the memo was in harmony with the promotion of quality control, it could not be privileged where
it was not generated by a committee of the type described in the statute. Id. ¶ 26. We also
rejected the anesthesiologist’s argument that, because he was advised to write the memo by
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2017 IL App (2d) 160972members of the board, he was engaged in ongoing quality control and, thus, the memo must be
considered information of the board. Id. ¶ 27. We expressed two reasons for our holding. First,
citing Roach, Berry, and Anderson v. Rush-Copley Medical Center, Inc., 385 Ill. App. 3d 167(2008), we noted chronology. Specifically, we determined that, when the memo was written, the
board was not already engaged in the peer-review or quality-control process regarding the
incident at issue. Kopolovic, 2012 IL App (2d) 110383, ¶¶ 28-30. Second, relying on Roach and
Pietro v. Marriott Senior Living Services, Inc., 348 Ill. App. 3d 541 (2004), we concluded that
the actions of individual board members are not actions of the board as a whole and that the
evidence did not reflect that the board members were authorized by the board to investigate,
“outside the review process conducted at monthly meetings,” the anesthesiologist’s concerns
before he wrote his memo. Kopolovic, 2012 IL App (2d) 110383, ¶¶ 31-32.
¶ 22 In Lindsey, in a negligence action against a nursing home, this court construed the Long-
Term Care Peer Review and Quality Assessment and Assurance Protection Act (745 ILCS 55/1
et seq. (West 2014)) by looking at Medical Studies Act case law and held, following Roach and
Chicago Trust, that internal quality-assurance investigation reports relating to incidents or
accidents involving resident injuries, and required under a nursing home’s quality-assurance
process for consideration only by the quality-assurance committee, were not privileged. We
explained that a policy “declaring in advance” that reports are part of the peer-review process
“ ‘goes too far,’ ” as the reports at issue constituted earlier-acquired information and were made
before any peer-review committee met. Lindsey, 2017 IL App (2d) 160042, ¶¶ 15, 16 (quoting
Chicago Trust, 298 Ill. App. 3d at 406).
¶ 23 This court most recently revisited the Medical Studies Act in Nielson. There, the plaintiff
underwent a scheduled outpatient surgery at the defendant’s hospital in Belvidere to remove a
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2017 IL App (2d) 160972vaginal cyst. During the surgery, the plaintiff’s bladder was injured. The plaintiff was then
transported on an emergency basis to the defendant’s hospital in Rockford for surgical repair of
her bladder. Three nurses involved either in the plaintiff’s original or second surgery each
prepared a quality control report (QCR) between December 17 and 20, 2013. The defendant’s
director of risk management averred that the defendant’s medical staff bylaws established
various quality-assurance committees, including the quality and safety committee (QA/I). The
QA/I requested that certain medical information be collected on its behalf in the form of QCRs.
The QA/I developed the QCR template in 1999 in an effort to comply with the Medical Studies
Act. QCRs were gathered at the direction and (standing) request of the QA/I. Nielson, 2017 IL
App (2d) 160743, ¶¶ 4-9.
¶ 24 On January 29, 2015, the plaintiff filed a suit against the defendant, sounding in
negligence. The plaintiff subsequently sought to compel the defendant to produce the three
QCRs. The defendant refused, arguing that the documents were protected from discovery
pursuant to the Medical Studies Act. The trial court ordered the defendant to disclose the
documents. Id. ¶¶ 22-24.
¶ 25 On appeal, this court affirmed. We determined that the QCRs at issue were effectively
incident reports because they did not commence an investigation and because they were used for
the dual purposes of quality assurance and risk management. We therefore explained that, in
light of the holdings in Roach, Lindsey, Chicago Trust, Kopolovic, and Berry, which preclude
designating in advance that certain materials are generated by and for a quality-assurance or
peer-review committee, and in light of the case law holding that the statutory privilege does not
apply where the materials are used for the dual purposes of quality-assurance and risk
management, the QCRs were not privileged. Id. ¶¶ 75, 80.
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2017 IL App (2d) 160972¶ 26 Based on the foregoing authorities, the Medical Studies Act does not insulate from
discovery documents that were generated before a peer-review committee or its designee
authorized an investigation of a specific incident. Thus, there is no merit to Edward Hospital’s
claim that the policies its MSQC enacted in 2008 were sufficient to shield from discovery
Rosenbery’s notes on the peer-reviewers’ input regarding the care that the plaintiff and Isabella
received in 2013.
¶ 27 Edward Hospital attempts to distinguish the above cases on the basis that they involved
different types of documents than are at issue here. Specifically, Edward Hospital argues that
those cases involved a hallway conversation (Roach), a memorandum (Kopolovic), a letter
written outside the peer-review process (Berry), witness statements (Lindsey), incident reports
(Chicago Trust), or dual-purpose reports (Nielson). By contrast, the hospital insists, Rosenbery’s
notes on the peer reviewers’ input are more similar to the information that was found to be
privileged in Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d 741 (2003), Eid
v. Loyola University Medical Center, 2017 IL App (1st) 143967, and Anderson, 385 Ill. App. 3d
167.
¶ 28 The distinctions that Edward Hospital is trying to draw are without significance. The fact
remains that the documents at issue herein, like those in the foregoing authorities, were generated
before any peer-review committee or its designee authorized an investigation into a specific
incident. Furthermore, we find the hospital’s reliance on Ardisana, Eid, and Anderson to be
misplaced.
¶ 29 In Ardisana, the trial court directed a hospital to provide, for an in camera review, a
privilege log, a copy of the documents in dispute, and a copy of the complaint. Ardisana, 342 Ill.
App. 3d at 744. The hospital filed the requested documents and, in addition, filed the affidavit of
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2017 IL App (2d) 160972its risk manager. Id. The risk manager’s affidavit indicated that the documents at issue were
generated in conjunction with investigations by the general surgery quality audit and anesthesia
quality improvement audit committees. She identified the following documents as being
privileged:
“1. A quality management worksheet prepared for the surgical quality audit
committee, dated February 23, 2000, and minutes of audit committee meetings held on
February 23 and April 19, 2000, at which plaintiff’s care was discussed.
2. A quality management worksheet prepared for the anesthesia department
quality audit committee dated May 10, 2000, minutes of an audit committee meeting held
May 10, 2000, and a letter from the chairman of the audit committee to Dr. Subhash
Balaney dated June 5, 2000, requesting certain additional information about plaintiff’s
care.” Id.¶ 30 The trial court ruled that all of the disputed documents were discoverable, in part because
the hospital failed to establish when the peer-review process commenced and ended. Id.Thereafter, the hospital filed a motion to reconsider, attaching additional affidavits with
information regarding the start and end dates of the internal review processes and information as
to the steps taken to preserve the confidentiality of the documents generated during the process.
Id. at 745. On appeal, the reviewing court reversed for two reasons. First, the reviewing court
held that the documents at issue were privileged on the basis that they constituted
recommendations, not results used in the course of internal quality control. Id. at 747. Second,
the reviewing court determined that the documents were privileged because they “served an
integral function in the peer-review information-gathering and decision-making process,” noting
that an affidavit showed that they were generated in the process of investigations by the
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2017 IL App (2d) 160972committees and solely for their use. Id. at 748. In so ruling, the reviewing court explicitly noted
that the Medical Studies Act does not protect against disclosure of information generated before
a peer-review process begins or after it ends. Id.
¶ 31 Here, Edward Hospital points to the language in Ardisana that refers to results being
discoverable but recommendations not being discoverable, and it argues that recommendations
are at issue here. It also argues that Ardisana is analogous because that case involves documents,
like those here, that “served an integral function in the peer-review information-gathering and
decision-making process.” Id. The hospital’s argument, however, overlooks the context of
Ardisana. In Ardisana, the reviewing court explained that the privilege does not attach to
documents generated before a peer-review process begins or after it ends. Id. Thus, it is
apparent that the reviewing court found that the documents at issue were privileged because they
were created while the quality audit committee was meeting or before its investigation had
ended. As such, the instant case is distinguishable from Ardisana because the documents at issue
here were produced before the MSQC authorized an investigation into the incident at issue.
¶ 32 In Eid, the reviewing court held that information generated for use by a hospital peer-
review committee was privileged where a committee designee, pursuant to his authority under
hospital bylaws, began an investigation of a patient’s treatment and instructed another committee
member to collect information. Eid, 2017 IL App (1st) 143967, ¶ 39. Specifically, after a child
died following surgery, the hospital’s risk manager, who was also a member of the peer-review
committee, began contacting individuals to preserve records. She also contacted the chair of the
peer-review committee, who instructed her to investigate the incident on the committee’s behalf,
from a quality perspective. The chair averred that the committee directed and empowered
individuals to assemble information about incidents and to report the information back to the
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2017 IL App (2d) 160972committee for its use in evaluating and improving the quality of patient care. The risk manager,
he further averred, was such a designee in this instance. The First District upheld the trial court’s
finding that the privilege applied to documents generated by the risk manager after she obtained
the chair’s directive on the committee’s behalf. Id. The court noted that the 1995 amendment to
the Medical Studies Act provided that “ ‘designees’ ” could create or generate information
covered by the statute. Id. ¶ 43. Thus, if the risk manager and the chair were designees under
the Medical Studies Act, the documents were privileged. Id. ¶ 44. In assessing this question, the
court rejected the plaintiffs’ argument that the privilege does not apply to information generated
before the peer-review committee, acting as a whole, either becomes aware of an incident or is
engaged in the peer-review process. Id. ¶ 49. The court noted that the statute was amended after
the Roach decision and that subsequent cases citing Roach either do not acknowledge the 1995
amendment or do not involve situations where an individual was authorized to act on behalf of a
peer-review committee. Id. (citing Chicago Trust, Pietro, Anderson, and Kopolovic). The court
held that the privilege applied to the documents generated by the risk manager after she obtained
the chair’s directive on the committee’s behalf, where the risk manager’s and the chair’s
affidavits established that the committee was a peer-review committee covered by the Medical
Studies Act and where the chair used his authority to commence the committee’s investigation
after being informed that the incident at issue might warrant peer-review proceedings. Id. ¶ 53.
¶ 33 Eid thus stands for the proposition that, where a member of a peer-review committee,
acting on its behalf, authorizes an investigation by a designee into a potential quality issue, any
documents generated thereafter as part of the investigation are privileged. It is distinguishable
from this case, because a designee was not declared in Eid until after the committee became
aware of the incident and authorized the investigation. Here, Edward Hospital is relying on
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2017 IL App (2d) 160972policies its MSQC enacted five years before the incident at issue to support its claim that certain
documents should be privileged.
¶ 34 In Anderson, the decedent died after being admitted to the defendant hospital. Nine days
later, the hospital’s peer-review committee met to address the medical care that the decedent had
received. Anderson, 385 Ill. App. 3d at 169. The hospital’s risk manager testified in her
discovery deposition that the members of the committee were assigned to conduct research
concerning issues involving the decedent’s medical care and that this research resulted in
locating and using medical journal articles related to the decedent’s medical care. Id. at 171.
The plaintiff sought to have the hospital disclose the medical journal articles that the committee
had relied upon. The trial court agreed that the medical journal articles were not privileged
under the Medical Studies Act, because those articles had not been generated by a hospital
committee in formulating its recommendations. Id. On appeal, this court reversed. Id. at 178.
We explained that the medical journal articles were privileged because they reflected the
committee’s internal review process, including information-gathering and deliberations. Id. at
175. We additionally found that, as “the medical journal articles could not reference the care
administered to decedent, because they existed before [she] sought treatment,” “applying the
privilege to the medical journal articles would not frustrate the [Medical Studies] Act’s goal of
improved patient care, because doing so would not conceal any ‘adverse facts’ known to
defendant’s medical staff about decedent’s care.” Id. at 177.
¶ 35 Anderson is distinguishable from the instant case because in that case the peer-review
committee had already started its investigation when it located the articles in question. In the
present case, when Rosenbery wrote her notes, the MSQC was not engaged in an investigation of
the care that the plaintiff and Isabella had received.
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2017 IL App (2d) 160972¶ 36 Finally, we note that “a contempt citation is an appropriate method for testing the
propriety of a discovery order.” Flannery v. Lin, 176 Ill. App. 3d 652, 655 (1988). Here, the
record reveals that Edward Hospital was not contemptuous of the trial court’s authority. Rather,
its refusal was made in good faith, as it merely sought appellate review of its unsuccessful
assertions of privilege. Accordingly, we vacate the trial court’s finding of contempt. See People
ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d 745, 756 (1997).
¶ 37 CONCLUSION
¶ 38 The decision of the circuit court of Du Page County requiring Edward Hospital to
produce the disputed documents is affirmed. The contempt order is vacated. We remand for
proceedings consistent with this opinion.
¶ 39 Affirmed in part and vacated in part; cause remanded.
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