Nielson v. SwedishAmerican Hospital

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Appellate Court Date: 2017.08.17
13:04:21 -05'00'
Nielson v. SwedishAmerican Hospital, 2017 IL App (2d) 160743Appellate Court CONNIE F. NIELSON and DAVID A. NIELSON, Plaintiffs-
Caption Appellees, v. SWEDISHAMERICAN HOSPITAL and AMANDA J.
BUSH, Defendants (SwedishAmerican Hospital, Defendant-
Appellant).
District & No. Second District
Docket No. 2-16-0743
Filed June 23, 2017
Rehearing denied July 25, 2017
Decision Under Appeal from the Circuit Court of Winnebago County, No. 15-L-30;
Review the Hon. Eugene G. Doherty, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on David P. Faulkner and Michael J. Orsi, of Faulkner Gustafson, LLC,
Appeal of Rockford, and Hugh C. Griffin, of Hall, Prangle & Schoonveld,
LLC, of Chicago, for appellant.
Gregory E. Barrett and Jenna Lew Ewing, of Barrett Law Firm, P.C.,
of Rockford, for appellees.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices Burke and Schostok concurred in the judgment and opinion.
OPINION
¶1 In this interlocutory appeal, defendant, SwedishAmerican Hospital, challenges the trial
court’s order, finding it in contempt for refusing to produce three quality control reports
(QCRs) pertaining to surgery performed on plaintiff Connie F. Nielson. See Ill. S. Ct. R.
304(b)(5) (eff. Mar. 8, 2016) (order finding entity in contempt and imposing monetary penalty
is appealable without special finding). Defendant argues that the QCRs are privileged under
sections 8-2101 and 8-2102 of the Code of Civil Procedure (735 ILCS 5/8-2101, 8-2102 (West
2014)) (Medical Studies Act or Act) because they were submitted to a quality-assurance
committee by the committee’s designees, pursuant to the committee’s standing request for
such information whenever a defined “medical occurrence” has taken place. We affirm in part
and vacate in part.
¶2 I. BACKGROUND
¶3 A. Surgeries
¶4 On December 17, 2013, Connie underwent scheduled outpatient surgery at defendant’s
hospital in Belvidere to remove a vaginal cyst. During the surgery, which was performed by
codefendant, Dr. Amanda J. Bush, a board-certified gynecologist and employee of defendant,
Connie’s bladder was injured. Connie was transported on an emergency basis to defendant’s
hospital in Rockford for surgical repair of her bladder.
¶5 B. QCRs
¶6 Three nurses involved in either Connie’s original or second surgery each prepared a QCR
between December 17 and 20, 2013.
¶7 Beverly Merfeld, defendant’s director of risk management, averred as follows. She is a
member of the committee for quality improvement and safety (CQI), the board quality and
safety leadership committee, and the medical-staff quality and safety committee (QA/I).
Merfeld reports directly to the chief medical officer and vice president of quality services, who
is also a member of the QA/I.
¶8 According to Merfeld, defendant’s medical-staff bylaws establish various
quality-assurance committees and subcommittees to conduct peer-review and
quality-improvement activities. The CQI and QA/I and their subcommittees were established
to reduce morbidity and mortality and to improve patient care. The activities of the
quality-assurance committees and their subcommittees, as well as those of their designees, are
treated confidentially.
¶9 The QA/I has requested that information on “medical occurrences” 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 Act, and it identified the occurrences for which it was proactively seeking
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information. QCRs are gathered at the direction and (standing) request of the QA/I and are
forwarded to Merfeld in her capacity as a member of the CQI and QA/I.
¶ 10 Merfeld received the three QCRs concerning Connie’s surgeries, and she reviewed them
pursuant to defendant’s “quality structure” via the quality-resource department (QRD), a
designee of the QA/I that collects data for analysis by the QA/I’s subcommittees. On January
24, 2014, the women’s health quality and safety subcommittee of the QA/I (WHQS) reviewed
the care at issue and reported its findings to the QA/I and the CQI. Merfeld averred that, as a
result of the peer-review process concerning Connie’s treatment, there were no actions taken
regarding any physician privileges and no changes in defendant’s policy, procedure, rules, or
regulations.
¶ 11 In their affidavits, the nurses averred that they completed the QCRs at the request of the
QA/I and forwarded the documents to Merfeld “in the Risk Management Department.” They
understood that the information would be kept confidential and was of the type that the QA/I
was requesting for peer-review and quality-improvement purposes.
¶ 12 The QCR form provides as follows: “The QA/I Committee of the Medical Staff has
determined that the ‘Medical Occurrence’ can affect patient morbidity and mortality; hence,
the Committee requests that information be gathered for it and on its behalf in these instances.
Such information is a quality-improvement tool and is confidential under the Illinois Medical
Studies Act.” As to nonmedical occurrences, the form provides that “[t]hese categories pertain
to non-medical matters.” The form contains checklists under the headings of medical and
nonmedical occurrences. The list of medical occurrences includes the following: admission
R/T output rx; behavioral, blood transfusion; code during treatment; complaint; discharge
planning; equipment use related; fall/found on floor; infection; injury; lab test; medical record;
medication; policy/procedure/practice; quality of services; and other. Nonmedical occurrences
include property loss/damage, slip and fall/nonpatient, legal action, vehicular accident, and
injury/nonpatient. The person completing the form is instructed to consult the reverse side of
the form, which contains definitions of the various terms. The term “legal action” is defined for
both medical and nonmedical occurrences, even though it appears on only the list of
nonmedical occurrences on the front of the form. “Legal action” is defined for medical
occurrences as: “Any activities involving formal legal activities; such as subpoena for records
or staff, lawsuits filed against the health system, employees, or medical staff which pertain to
medical care issues.” The term is defined in a substantially similar fashion for nonmedical
occurrences: “Any activities involving formal legal activities by non-patients; such as
subpoena for staff or employees, lawsuits filed against the Health System, its employees,
medical staff, or the Hospital.”
¶ 13 The form contains an area to describe the circumstance at issue, and it instructs the person
completing the form to “Send to Risk Manager* or Administrator of SIR (Non-Medical),” with
the risk manager described as being a member of the CQI and the QA/I.
¶ 14 C. Medical-Staff Quality-Improvement Plan and Medical-Staff Bylaws
¶ 15 Defendant’s medical-staff quality-improvement plan for fiscal year 2013 provides that the
medical staff and the board of directors direct the QRD to gather the information “that is used
to evaluate patient morbidity and mortality.” “Medical Staff Quality and Safety
Subcommittees are responsible for the timely assessment of the data and evaluation and
disposition of cases identified for peer review.”
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¶ 16 Defendant’s medical-staff bylaws, dated November 2013, provide for various committees,
including the QA/I. Section 12.6.b states, in relevant part:
“The membership of this Committee shall include the Chair of each clinical
Department’s Quality and Safety Subcommittee or their designees; a Chair to be
selected by the President of the Medical Staff; and such other members as may be
provided for in the Hospital’s Quality and Safety Plan for Improving Organizational
Performance.
The members shall monitor and evaluate objectively and systematically the quality,
safety, and appropriateness of patient care provided by members of the Medical Staff.
They *** shall receive and evaluate reports from individual quality and safety
subcommittees and provide a forum for interdepartmental discussions. ***
Quality and Safety Committee meetings shall be scheduled at least bi-monthly;
written records of its proceedings and activities shall be recorded and maintained by
members of the Quality Resource Department; reported to the Medical Executive
Committee on a routine basis, and reported to the Credentials Committee as
necessary.”
¶ 17 D. Policy-and-Procedure Manual
¶ 18 Defendant’s policy-and-procedure manual contains a section concerning incident
reporting. The document states that QCRs “will be used to communicate occurrences or
variances affecting patients, physicians, visitors, volunteers, students, employee property, and
[defendant’s] property” and that the “information will be used to monitor, evaluate, and
improve the quality and safety of services” that defendant provides. A QCR must be completed
for each occurrence, variance, serious event, near miss, or sentinel event. The policy provides
that any “employee, student, volunteer, visitor, or physician involved in, observing, or
discovering an occurrence,” etc., must complete a QCR and submit it to his or her supervisor
(if applicable) prior to the end of his or her shift.
¶ 19 The manual further provides that a “reportable occurrence or variance is any event which is
not consistent with quality health care or normal operations, reflects recurring concerns or
problems, or indicates the potential for a claim or lawsuit.” (Emphasis added.) Where it is
determined that an unanticipated outcome was preventable, the patient will not be billed for the
costs associated with treatment related to the event, and the chief medical officer, the chief
quality officer, and/or the chief financial officer will determine whether a bill write-off or
payment is necessary. The manual further states that responsibility for certain costs “can only
be determined after investigation of the occurrence by Risk Management or their designee.”
The manual also states that completed QCRs “should be sent to Risk Management as soon as
possible to facilitate follow-up, investigation, resolution, and data collection.” In the case of a
sentinel event, for example, the chief medical officer or the chief quality officer “or his
designee will determine if a *** team should be convened to conduct an investigation.” The
manual advises that QCRs are not to be made part of a patient’s medical records or an
employee’s personnel file and that the responsibility for medical costs or lost or damaged items
will be determined only after the risk-management department or its designee investigates the
occurrence.
¶ 20 The manual further states that QCR forms are “a significant component of” defendant’s
quality-improvement program and that disclosure of the information in the forms, other than
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for quality review, is prohibited under the Act. However, the manual also states that the
risk-management department “reviews all QCRs and conducts investigation of occurrences or
variances which require more complete documentation, follow-up from a risk management
perspective, or reporting under the Safe Medical Devices Act.” Also, it provides that a “QCR
may serve as a report to legal counsel to assist in the defense of a lawsuit or claim.”
¶ 21 E. Lawsuit and Trial Court Order
¶ 22 On January 29, 2015, Connie and plaintiff David A. Nielson sued defendant and
codefendant, alleging negligence and seeking to recover damages for Connie’s bladder injury.
Plaintiffs subsequently sought to compel defendant to produce the three QCRs. Defendant
refused, arguing that the documents were protected from discovery by the Medical Studies
Act. Defendant submitted the QCRs to the court for in camera review.
¶ 23 On May 31, 2016, the trial court granted plaintiffs’ motion to compel. It initially noted that,
pursuant to the statutory language, the QCRs appeared to constitute information of one of
defendant’s quality-assurance committees. However, it continued, the case law compelled a
finding that the documents were not protected by the Act.
¶ 24 Just prior to this ruling, plaintiffs moved to file supplemental briefs based on information in
defendant’s recently discovered policy-and-procedure manual on incident reporting (described
above). After the hearing, the court determined that in light of the supplemental briefing, it did
not “see a reason to depart from [its] decision.” On August 18, 2016, the trial court found that
defendant had refused to comply with its order to produce the QCRs and that, accordingly,
defendant was in civil contempt. The court fined defendant $1 per day until the QCRs were
produced. Defendant appeals.
¶ 25 II. ANALYSIS
¶ 26 Defendant argues that the trial court erred in ordering it to produce the QCRs. It contends
that they are privileged from discovery under the Act’s express statutory language and that
such a determination is consistent with the Act’s purpose (as stated in Anderson v.
Rush-Copley Medical Center, Inc., 385 Ill. App. 3d 167 (2008)). Defendant asserts that no case
compels denial of the privilege and that the most factually analogous case, Ardisana v.
Northwest Community Hospital, Inc., 342 Ill. App. 3d 741 (2003), supports application of the
privilege. It urges us to distinguish Berry v. West Suburban Hospital Medical Center, 338 Ill.
App. 3d 49 (2003), and Kopolovic v. Shah, 2012 IL App (2d) 110383, upon which the trial
court relied, or to disregard Kopolovic because it did not consider a recent amendment to the
statute, as noted in Eid v. Loyola University Medical Center, 2017 IL App (1st) 143967.
Defendant asserts that the QA/I as a whole proactively determined to undertake a quality
review of any outpatient complication resulting in a hospital admission and that, as the
committee’s “designees,” the medical personnel involved in such an occurrence are to
commence that review process by completing and submitting QCRs. Thus, in its view, the
QCRs are information initiated by a peer-review or quality-assurance committee and they
fulfilled their intended purpose here by initiating a quality-assurance process that culminated
with no action being taken regarding any physician’s privileges and no changes in defendant’s
policies or procedures. For the following reasons, we hold that the trial court’s factual findings
were against the manifest weight of the evidence, but we agree that the documents are not
privileged.
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¶ 27 A. Standards of Review
¶ 28 The question of whether the Act’s privilege applies is a question of law, which is reviewed
de novo; however, the question of whether specific materials are part of an internal
quality-control process “is a factual question,” on which the defendant bears the burden. Berry,
338 Ill. App. 3d at 53-54. 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).
¶ 29 Defendant argues that we need reach only the legal issue here, not any factual ones. It notes
that the trial court determined only that Kopolovic and Berry compelled it to rule as it did as a
matter of law. Furthermore, defendant notes that this court’s most recent Medical Studies Act
decision, Lindsey v. Butterfield Health Care II, Inc., 2017 IL App (2d) 160042, ¶ 10, used only
the de novo standard.
¶ 30 We disagree that only the legal issue is before us. Whether the QCRs are part of
defendant’s quality-assurance process is clearly a factual determination. It is true that the trial
court focused its analysis on the case law, but it also made that factual determination
concerning defendant’s quality-assurance process, and it did so in light of defendant’s
policy-and-procedure manual, which presents factual issues concerning the QCRs’ purpose
and role in the process. Accordingly, we address both the factual and legal issues.
¶ 31 B. Privilege
¶ 32 1. Background
¶ 33 Section 8-2101 of the Act provides, in relevant part:
“All information, interviews, reports, statements, memoranda, recommendations,
letters of reference or other third party confidential assessments of a health care
practitioner’s professional competence, or other data of *** committees of licensed or
accredited hospitals or their medical staffs, including Patient Care Audit Committees,
Medical Care Evaluation Committees, Utilization Review Committees, Credential
Committees and Executive Committees, or their designees (but not the medical records
pertaining to the patient), used in the course of internal quality control or of medical
study for the purpose of reducing morbidity or mortality, or for improving patient care
or increasing organ and tissue donation, shall be privileged, strictly confidential and
shall be used only for medical research, increasing organ and tissue donation, the
evaluation and improvement of quality care, or granting, limiting or revoking staff
privileges or agreements for services ***.” (Emphases added.) 735 ILCS 5/8-2101
(West 2014).
Section 8-2101 was amended in 1995 to add “or their designees” after the description of the
committees, a change that not all recent cases acknowledge. Pub. Act 89-393 (eff. Aug. 20,
1995).
¶ 34 The Act further provides:
“Such information, records, reports, statements, notes, memoranda, or other data, shall
not be admissible as evidence, nor discoverable in any action of any kind in any court
or before any tribunal, board, agency or person. The disclosure of any such information
or data, whether proper, or improper, shall not waive or have any effect upon its
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confidentiality, nondiscoverability, or nonadmissibility.” 735 ILCS 5/8-2102 (West
2014).
¶ 35 The Act’s purpose “is [neither] to facilitate the prosecution of malpractice cases” (Jenkins
v. Wu, 102 Ill. 2d 468, 479 (1984)) nor to shield hospitals from potential liability (Roach v.
Springfield Clinic, 157 Ill. 2d 29, 42 (1993)). Rather, it “is to ensure that members of the
medical profession will effectively engage in self-evaluation of their peers in the interest of
advancing the quality of health care.” Id. at 40. The statute “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.” Jenkins, 102 Ill. 2d at 480.
The Act also serves “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 Act does not protect ‘all information used for internal quality control’
(Grandi v. Shah, 261 Ill. App. 3d 551, 557 (1994)); instead, documents ‘generated
specifically for the use of a peer-review committee receive protection under the Act’
(Chicago Trust Co. [v. Cook County Hospital, 298 Ill. App. 3d 396, 402 (1998)]). A
document that ‘was initiated, created, prepared, or generated by a peer-review
committee’ is privileged under the Act, ‘even though it was later disseminated outside
the peer-review process.’ Chicago Trust Co., 298 Ill. App. 3d at 406. The reverse is not
true, however. A document created ‘in the ordinary course of the hospital’s medical
business or for the purpose of rendering legal opinions or to weigh potential liability
risk or for later corrective action by the hospital staff’ is not privileged ‘even though it
later was used by a committee in the peer-review process.’ Chicago Trust Co., 298 Ill.
App. 3d at 406.” Webb v. Mount Sinai Hospital & Medical Center of Chicago, Inc., 347
Ill. App. 3d 817, 825 (2004).
¶ 36 The privilege does not apply to all information used for internal quality control or peer
review, but only to the “information of” such committees. Roach, 157 Ill. 2d at 39; see also
Kopolovic, 2012 IL App (2d) 110383, ¶ 19. “ ‘Information of’ has a specific meaning here: it
encompasses only information ‘initiated, created, prepared or generated by’ a peer-review or
quality-control committee.” Kopolovic, 2012 IL App (2d) 110383, ¶ 19 (quoting Pietro v.
Marriott Senior Living Services, Inc., 348 Ill. App. 3d 541, 549 (2004)).
¶ 37 The Act’s protection does not extend to information generated either “before a peer-review
process begins or after it ends.” Ardisana, 342 Ill. App. 3d at 748; see also Kopolovic, 2012 IL
App (2d) 110383, ¶ 19 (information that is generated before the relevant committee’s decision
to review an incident is not privileged); Webb, 347 Ill. App. 3d at 825 (“the hospital committee
‘must be engaged in the peer-review process before the statutory privilege is applicable’ ”
(quoting Grandi, 261 Ill. App. 3d at 557)).
¶ 38 The cases also distinguish between recommendations and results of peer-review
committees. They hold that the statute protects “documents that arise from the workings of a
peer-review committee [citation] and that are an integral part but not the result of the
peer-review process.” Ardisana, 342 Ill. App. 3d at 746-47. “The recommendations and
internal conclusions of peer-review committees, which may or may not lead to [certain]
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results, are not discoverable.” (Emphasis in original.) Id. at 747. Results of the peer-review
process are not privileged and are discoverable. Id.1
¶ 39 The assertion of a privilege under the Act may be supported either by submitting the
purportedly privileged materials for in camera inspection, which was done here, or by
submitting affidavits setting forth facts sufficient to establish the application of the privilege to
the materials, which was also done here. Id. at 748. When the facts in an affidavit are
uncontradicted, “they must be taken as true notwithstanding the existence of contrary
unsupported allegations.” Flannery v. Lin, 176 Ill. App. 3d 652, 658 (1988). However, a
counteraffidavit is not the only means by which an affidavit can be contradicted; an affidavit
can be contradicted by other documentary evidence. See, e.g., Rumford v. Countrywide
Funding Corp., 287 Ill. App. 3d 330, 336 (1997).
¶ 40 2. The QCRs and the Statutory Language
¶ 41 The statutory language appears, at first blush, to cover the QCRs because at least part of
their purpose is to facilitate peer-review and quality-assurance activities. The statute provides
that the privilege applies to all of the information, reports, etc., excluding patient medical
records, of hospital- or medical-staff committees or their designees that are “used” in the
course of internal quality control or for improving patient care. 735 ILCS 5/8-2101 (West
2014). Defendant’s medical-staff bylaws provide for a quality and safety committee,
subcommittees, and their designees to “monitor and evaluate” the “quality, safety, and
appropriateness of patient care.” Similarly, the quality-improvement plan states that the quality
and safety subcommittees “are responsible for the timely assessment of the data and evaluation
and disposition of cases identified for peer review.” The policy-and-procedure manual states
that a QCR must be completed for each medical occurrence and will be used to monitor,
evaluate, and improve quality and safety. Indeed, Merfeld, defendant’s director of risk
management, averred that the QA/I developed the QCR template in an effort to comply with
the Act and identified medical occurrences for which the committee would be proactively
seeking information. The QCRs here were forwarded to Merfeld in her capacity as a member
of the CQI and the QA/I. She reviewed them pursuant to defendant’s quality structure and, on
January 24, 2014, the WHQS reviewed plaintiff’s case and reported its findings to the QA/I
and CQI. The process was kept confidential.
¶ 42 However, Merfeld’s affidavit and other documentary evidence also reflected that QCRs are
generated for all medical occurrences, are used for both quality-assurance and
risk-management purposes, and are reviewed by the risk-management department to, among
other things, assess whether further actions should be taken “from a risk management
perspective.” Further, all QCR forms state that they are used to compile information
concerning both medical and nonmedical occurrences. The list of nonmedical occurrences on
the front of the form does not include “legal action,” but the reverse side of the form, which
contains the definitions of listed items, includes that term on the nonmedical occurrences list;
1
“Results of a peer-review committee take the form of ultimate decisions made or actions taken by
that committee, or the hospital, and include the revocation, modification or restriction of privileges,
letters of resignation or withdrawal, and the revision of rules, regulations, policies and procedures for
medical staff.” (Emphasis in original.) Id.-8-
thus, potential legal implications of a medical occurrence can be flagged on the form. (In this
case, there is no such notation on any of the three QCRs.)
¶ 43 Defendant’s policy-and-procedure manual elaborates, in a section concerning incident
reporting, that QCRs are used to improve quality and safety and are “a significant component
of” defendant’s quality program. Any “employee, student, volunteer, visitor, or physician
involved in, observing, or discovering an occurrence” must complete a QCR and submit it to
his or her supervisor (if applicable) prior to the end of his or her shift. A reportable occurrence
is defined as an event that “is not consistent with quality health care or normal operations,
reflects recurring concerns or problems, or indicates the potential for a claim or lawsuit.”
(Emphasis added.) The policy manual further provides that the risk-management department
reviews all QCRs and investigates occurrences requiring follow-up from a risk-management
perspective and that QCRs “may serve as a report to legal counsel to assist in the defense of a
lawsuit or claim.” (Emphasis added.) The manual instructs that completed QCRs “be sent to
Risk Management as soon as possible to facilitate follow-up, investigation, resolution, and
data collection.” They are not made part of a patient’s medical record or an employee’s
personnel file. The forms also address billing, instructing that responsibility for medical costs
is determined after the risk-management department or its designee investigates the
occurrence.
¶ 44 The foregoing evidence reflects that the QCRs here (indeed all of defendant’s
medical-occurrence QCRs) serve multiple purposes, including quality assurance (all
medical-occurrence QCRs), risk management (all QCRs), and, to a certain extent, billing (all
QCRs). The trial court’s finding that defendant’s QCRs are generated solely at the
quality-assurance committees’ and subcommittees’ direction pursuant to a standing order and
used solely for quality-assurance purposes was against the manifest weight of the evidence. It
is unclear to us if even the primary purpose of the QCRs here (and all medical-occurrence
QCRs) is for quality assurance. Nevertheless, all medical- and nonmedical-occurrence QCRs
are reviewed by defendant’s risk-management department to determine whether there should
be follow-up from a risk-management perspective.
¶ 45 Defendant maintains that there is no contradiction between Merfeld’s affidavit and the
policy-and-procedure manual. The instruction that QCRs should be sent to the
risk-management department for review and potential follow-up, it argues, merely echoes
Merfeld’s statement that QCRs are sent to her (she is the risk management director) and she
then facilitates appropriate follow-up through defendant’s quality structure. Defendant also
contends that, even if Merfeld was not also a member of the QA/I and the CQI, she clearly
acted as their designee in receiving the QCRs and facilitating submission of the information
therein to the WHQS as part of the peer-review process. Defendant argues that, to the extent
that the policy manual can be read to permit Merfeld to take action concerning a medical
occurrence “from a risk management perspective,” the QCRs would still be privileged under
the Act because a document that is privileged does not lose such status once it is disseminated
outside of the peer-review process. We find this argument unpersuasive because the policy
manual does not state, for example, that QCRs are reviewed in a series of steps, the first of
which is for quality assurance and the second of which is for risk management. We cannot
clearly discern from the manual whether there is a precise sequence of the various reviews, but
it nevertheless is true that QCRs serve each process and that, in this sense, the processes are
simultaneous and the forms serve dual purposes.
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¶ 46 We conclude that the trial court’s finding that the QCRs were requested by the
quality-assurance committee as a standing practice and solely for its use was against the
manifest weight of the evidence. The court’s factual findings were made before the
supplemental briefing concerning the policy-and-procedure manual, and the court did not
revisit those findings, determining after the supplemental briefing that it did not “see a reason
to depart from [its] decision.” However, viewing the evidence as a whole and, most
significantly, in light of the manual’s provision that all QCRs are reviewed to assess whether
there should be follow-up from a risk-management perspective, we hold that the court’s
finding was not reasonably based on the totality of the evidence. Given this conclusion, we turn
to the case law to assess whether, given their dual purposes, the QCRs here are privileged.
¶ 47 3. Roach and Incident-Report Cases
¶ 48 As noted, the Act has been construed to cover information generated during, but not before
or after, a peer-review committee’s engagement in such a review. Ardisana, 342 Ill. App. 3d at
748; Webb, 347 Ill. App. 3d at 825. The question here is whether the QCRs constitute
information of defendant’s peer-review committees where they were completed pursuant to a
general standing order by such committees and for their nonexclusive use. In the following
cases, the courts refused to hold that the documents were privileged where they consisted of
reports that were not initiated and used exclusively by peer-review committees for peer-review
or quality-assurance purposes and/or where the defendants had classified the documents in
advance as peer-review or quality-improvement materials.
¶ 49 The supreme court case most relevant here is Roach, a preamendment case. In Roach, the
supreme court determined that the Act’s protection runs to the information of peer-review
committees, not hospital medical staff, and that the information is not transformed into
“information of” a peer-review committee merely because it is later reported to such a
committee. Roach, 157 Ill. 2d at 38-41. The supreme court declined to impute an
anesthesiology chair’s actions to his department merely because he served as its chair. Id. at
42-43. It noted that, although the hospital’s bylaws stated that the chair was ultimately
accountable for all activities within the department, it was the department that was charged
with conducting medical reviews at monthly meetings, and the bylaws contained no provision
conferring on any individual the authority to act for the department in conducting interviews or
investigations “preliminarily to the review process.” Id. at 43.
¶ 50 Most relevant here, the court further stated:
“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. As a
result, it would be substantially more difficult for patients to hold hospitals responsible
for their wrongdoing through medical malpractice litigation. So protected, those
institutions would have scant incentive for advancing the goal of improved patient care.
The purpose of the [A]ct would be completely subverted.” Id. at 41-42.
¶ 51 Here, the trial court found Roach distinguishable because the investigating physician in
that case acted in a somewhat ad hoc manner, based on job responsibilities that only generally
included quality control, whereas, in this case, the peer-review committee had specifically
requested that QCRs be completed for medical occurrences. The trial court also noted that
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Roach was decided before the 1995 amendment that extends the statutory protection to
information of committees or their designees. We agree with the trial court’s analysis of
Roach. However, Roach’s warning concerning the implications of a policy that predeclares
that certain documents come within the statute’s purview is well taken.
¶ 52 The trial court further found that several other cases, the so-called incident-report cases
upon which plaintiffs rely, were distinguishable because the documents at issue were not
initiated and used exclusively by a peer-review committee for peer-review or
quality-improvement purposes. We disagree because, as noted, the documents here served dual
purposes: peer-review and risk management (i.e., anticipation of litigation). Also significant is
that two cases (Lindsey and Chicago Trust) follow Roach and appear to preclude policies that
declare in advance that certain documents are peer-review materials, an approach that
defendant refers to as a chronology bar.
¶ 53 In Chicago Trust, a case that does not discuss the 1995 amendment, the reviewing court
rejected the suggestion that a hospital oversight committee “can invoke the Act’s protection by
declaring in advance that all incident documents prepared by [hospital] staff are part of the
peer-review process.” Chicago Trust, 298 Ill. App. 3d at 406. The court stated that such a
position “goes too far” and that such a policy “would swallow the rule” and “make everything
confidential, except for the patient’s own medical records.” Id. Also, some of the reports in that
case were used in part to help formulate legal opinions. Id. at 404; see also Lindsey, 2017 IL
App (2d) 160042, ¶¶ 13-17 (in negligence action against nursing home, court construed
Quality Assurance Act by looking at Medical Studies Act case law and held, following Roach
and Chicago Trust and without discussing 1995 amendment, that internal quality-assurance
investigation reports relating to incidents or accidents involving resident injuries and required
under nursing home’s quality-assurance process for consideration only by the
quality-assurance committee were not privileged; case law instructed that a policy “declaring
in advance” that reports are part of peer-review process “ ‘goes too far’ ” (quoting Chicago
Trust, 298 Ill. App. 3d at 406) as they constitute earlier-acquired information; also, reports
were made before any peer-review committee met); Pietro, 348 Ill. App. 3d at 548-50 (in
negligence action against assisted-living facility, without discussing 1995 amendment, court
held in the alternative that, if Act applied, resident-care committee was not of the type
envisioned by the Act because it included persons whose job did not relate to such function;
further, handwritten statements by nurse and resident assistant concerning an incident were not
privileged because it was unclear if quality-assurance committee ever met to render an opinion
on the subject incident and, when the statements were prepared, no formal committee had
convened or requested the statements2); Webb, 347 Ill. App. 3d at 826-28 (affirming finding
that documents were not privileged under the Act without discussing amendment; documents
included an occurrence summary, four memoranda summarizing interviews with doctors, and
a statement that reflected that they were created, at least in part, to weigh potential liability risk,
not solely for peer-review; also, the record did not reflect the timing of the peer review);
Dunkin v. Silver Cross Hospital, 215 Ill. App. 3d 65, 68 (1991) (in negligence case against
hospital for slip-and-fall accident by nonpatient, court held that hospital incident reports that
2
Although not relied upon by the reviewing court in its analysis, we further note that the incident
documents were prepared for both the peer-review process and in anticipation of litigation. Id. at
544-45.
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recorded unusual incidents at hospital and were used in analyzing problem areas and
determining steps to improve quality of care and service were not privileged; reports did not
relate to patient medical care in “the sense that the legislature was concerned about” and were
“the same kind of incident reports which any business might have”; reports were used
primarily by hospital’s quality-assurance department, and information therefrom and
corrective-action plans could have been disseminated to any of 70 different departments).
¶ 54 Defendant asks that we not apply a strict chronology bar to the application of the privilege
to the QCRs, because the peer-review and quality-assurance goals will be frustrated where
personnel cannot immediately prepare such reports to ensure that the QA/I is provided with
candid, real-time, and firsthand information in carrying out its duties. Attempting to
distinguish Lindsey and Chicago Trust, defendant urges that it is not arguing that it can declare
in advance that every conceivable document pertaining to a patient’s care, except the patient’s
medical records, is privileged under the Act. Rather, it asserts that its claim of privilege applies
only to the three QCRs at issue here, which the QA/I proactively determined were to be
completed by the nurses as soon as the predefined “medical occurrence” happened, rather than
delaying such information-gathering for weeks or months until a scheduled committee
meeting. Defendant also contends that, if it instead waited until the committee met to request
that the nurses complete the QCRs, the documents would indisputably be privileged under the
statute. The fact that it decided to expedite the process by issuing a standing order that a QCR
be completed as soon as a medical occurrence happens, it urges, should be a distinction without
a legal difference.
¶ 55 Addressing Lindsey, this court’s most recent case on this issue, plaintiffs respond that, like
the documents in that case, the QCRs here were created in the ordinary course of defendant’s
business. Lindsey, following Roach and Chicago Trust, rejected the notion that a defendant can
declare in advance that incident documents are part of the peer-review process. Lindsey, 2017
IL App (2d) 160042, ¶ 15. Plaintiffs also argue that QCRs are created for a variety of incidents
and are sent to the risk-management department for appropriate follow-up, which is not within
the Act’s purview.
¶ 56 We find unconvincing defendant’s argument that it is seeking to have only the three QCRs
at issue declared privileged because the relevant aspects of the QCRs and defendant’s quality
program apply to all medical-occurrence QCRs and our holding, although specifically directed
to the QCRs at issue, would be read more broadly. Defendant is essentially seeking statutory
protection for all patient-care documents, with the exception of patients’ medical records, in
cases where there is a medical occurrence. This implicates the policy concerns expressed in
Roach and echoed in Chicago Trust and, more recently, by this court in Lindsey. Although
defendant’s point that its quality program seeks to proactively collect real-time information
concerning hospital incidents and should not be fatal to its case is well taken, our supreme
court and subsequent appellate decisions, as noted, have rejected such an approach.
¶ 57 4. Ardisana, Kopolovic, and Berry
¶ 58 Defendant next relies on Ardisana, which plaintiffs do not address (nor did the trial court),
and attempts to distinguish Kopolovic and Berry, upon which the trial court relied.
¶ 59 In Ardisana, the First District held that the following documents were privileged on the
basis that they constituted recommendations, not results, used in the course of internal quality
control: (1) pages of a surgical-department quality review, which contained a committee
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conclusion; (2) a page of the minutes of a general-surgery-quality-measurement-
and-improvement (QMI) conference, which contained two conclusions; (3) the indication of
conclusions in an anesthesia quality-management worksheet; and (4) a letter from the
anesthesia department chair to an anesthesiologist, seeking additional information for a peer
review. Ardisana, 342 Ill. App. 3d at 747.
¶ 60 The Ardisana court also determined, on a second basis, that the documents were privileged
because they “served an integral function in the peer-review information-gathering and
decision-making process”; and it noted that an affidavit showed that they were generated in the
process of investigations by the committees and solely for their use. Id. at 748. Specifically, the
minutes of the surgical-audit committee and the general-surgery QMI committee, in which the
plaintiff’s case was addressed, “self-evidently constitute[d] ‘investigative and deliberative
materials generated by a hospital committee in formulating its recommendations.’ ” Id. at 749
(quoting Green v. Lake Forest Hospital, 335 Ill. App. 3d 134, 138 (2002)). As to certain
quality-management/improvement worksheets, they were privileged because their content
reflected that they were authored for a peer-review committee’s use. Id. The letter from the
anesthesia department chair to the anesthesiologist was also privileged because it requested, on
the committee’s behalf, additional information to be used by the committee in its ongoing
investigation. Id. The court noted that the fact that the letter was “to an individual outside of the
committee proper does not compromise its privileged status, since disclosure of information
privileged under the Act has no effect on its nondiscoverability.” Id.¶ 61 Here, defendant contends that, as in Ardisana, the QCRs were authorized by the QA/I
committee, were prepared pursuant to “established screening criteria” (i.e., defined medical
occurrences), were “authored for the use of a peer-review committee,” and “served an integral
function” in that process. As noted, the trial court did not specifically address Ardisana. We do
not find it particularly helpful because, unlike the QCRs, the documents in that case were
prepared and used solely for peer-review purposes or constituted recommendations or internal
conclusions. Id. at 747-49. As to the latter, defendant does not argue that there are any
indications of any conclusions in the QCRs.
¶ 62 Defendant next maintains that Kopolovic and Berry, which the trial court found
controlling, are distinguishable and that Kopolovic, which the trial court described as
defendant’s “most conspicuous obstacle,” ignored the 1995 amendment that added “or their
designees” to the statute.
¶ 63 In Kopolovic, without discussing the 1995 amendment, we 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 Act. Kopolovic, 2012 IL App (2d)
110383, ¶ 36. The letter 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 memorandum was privileged because he
sought to bring to light practices that he viewed as unethical. Id. ¶ 22. We noted that the case
law (Roach and Grandi) 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. Id. ¶¶ 24-26. Even though the content of the information was in harmony with
the promotion of quality control, it could not be privileged where it was not generated by a
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committee of the type described in the statute. Id. ¶ 26. We also rejected the physician’s
argument that, because he was advised to write the memo by members 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, 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. Id. ¶¶ 28-30. Second, relying on Roach and Pietro, we
concluded that the actions of individual board members are not actions of the committee as a
whole, and 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. Id. ¶¶ 31-32; see also Berry, 338 Ill.
App. 3d at 57 (without discussing 1995 amendment, First District held that Act’s privilege did
not apply to physician’s letter to chairperson of hospital’s obstetrics and gynecology
department, informing the chair of events concerning patient’s medical condition and
treatment; although letter was written in response to established hospital policy that staff notify
peer-review committee of potential issues, court rejected the suggestion that the physician
acted on committee’s behalf because committee was not aware of the problem until it received
the letter and it did not meet until several months afterward; court held that the letter was not
privileged where it was not “initiated, created or generated by a peer-review committee” and
was “written prior to the commencement of the peer-review process as a means to bring to
[chair’s] attention a potential quality issue”).
¶ 64 Here, the trial court determined that, in the narrow sense, defendant’s QA/I did not request
that the three nurses prepare their respective QCRs, but rather, in the general sense, the
committee requested (via its quality-improvement plan) that such reports be completed.
Acknowledging that this point supported defendant’s argument that the nurses were committee
designees, the trial court nevertheless determined that Kopolovic’s discussion and approval of
Berry, where the court found that the privilege did not apply because the peer-review
department was not aware of the incident at issue until after it received the physician’s letter
(Kopolovic, 2012 IL App (2d) 110383, ¶ 29 (citing Berry, 338 Ill. App. 3d at 56)), compelled a
finding that the QCRs are not privileged. The trial court determined that, despite the fact that
the QA/I had directed employees to prepare QCRs to bring potential issues to its attention for
review, and despite the fact that the statute permits committees to act through designees,
Kopolovic and Berry compelled a finding that the QCRs are not information of the QA/I and
are therefore not privileged.
¶ 65 Defendant maintains that this case is close to Ardisana, but markedly different from Berry,
Kopolovic, or Roach. It argues that the QA/I as a whole directed hospital personnel involved in
certain events such as the one here to complete QCRs as its “designees” and submit them to the
committee for its (or a subcommittee’s) review. Thus, defendant urges, unlike in Berry,
Kopolovic, or Roach, the QCRs were initiated by the QA/I and owe their existence to the
committee as a whole. They are not independently created and then rerouted to the QA/I; they
are quality-assurance documents from their inception. Defendant further argues that the QA/I
committee as a whole proactively determined to undertake a quality review of any outpatient
complication resulting in a hospital admission and that the committee designated the medical
personnel involved in such an occurrence as its “designees” to commence that review process
by completing and submitting QCRs. Thus, the QCRs are information initiated by a
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peer-review or quality-assurance committee and they fulfilled their intended purpose here by
initiating a quality-assurance process that culminated with no action being taken regarding any
physician’s privileges and no changes in defendant’s policies or procedures.
¶ 66 Plaintiffs respond that Kopolovic is similar to this case. The QCRs, they argue, are also
information of the hospital staff and not of the QA/I. Plaintiffs also argue that, as in Berry, the
QA/I was not aware of Connie’s bladder injury until after the QCRs were sent to the
risk-management department, and the QA/I did not meet to discuss the incident until weeks
after the QCRs were written. Thus, they conclude, the QCRs are not information of a
peer-review or quality-assurance committee, but are, instead, information of the hospital staff.
¶ 67 We conclude that the trial court did not err in relying on Kopolovic and Berry.
Notwithstanding the fact that in Kopolovic we did not discuss the 1995 amendment, we find it
and the cases upon which it relied to continue to be good law. We acknowledge that the
anesthesiologist in that case did not write his letter pursuant to a standing process whereby a
peer-review or quality-assurance committee (and risk-management department) requested
such information. Rather, he did it merely upon a suggestion by two board members who were
not authorized to order such actions outside the established peer-review process. Similarly, the
physician in Berry was not acting on the committee’s behalf. However, it remains that these
cases preclude application of the privilege to the QCRs because the designees who completed
the QCRs had been so designated before the occurrence at issue.
¶ 68 Defendant next urges that extending the privilege to the QCRs is consistent with the 1995
amendment, which subsequent cases might have overlooked. The trial court, defendant points
out, noted this possibility, but found that Kopolovic and Berry controlled. Defendant relies on
Eid, a First District case that was decided after the trial court’s decision in this case. In that
case, the 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 committee 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 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 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 already
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 is authorized to act on behalf
of a peer-review committee. Id. (citing Chicago Trust, Pietro, Anderson, and Kopolovic). The
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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
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.
¶ 69 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 on
the committee’s behalf, 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. Also, Eid
did not involve a standing request to collect all medical-occurrence information, which is also
shared with the risk-management department to assess whether follow-up is required from a
risk-management perspective.
¶ 70 Defendant also contends that a conclusion that the Act protects the QCRs is consistent with
the statute’s purpose and goal. It points to yet another case, namely, Anderson. In Anderson,
we held that certain medical journal articles were privileged because they reflected a
peer-review committee’s “internal review process, including information gathering and
deliberation.” Anderson, 385 Ill. App. 3d at 175. The articles were not written by or for the
hospital’s peer-review committee or for its exclusive use, but they were located at the
committee’s request, were used as a resource in conducting a review, and focused on an issue
arising from the care given to a patient. Id. We noted that the committee gave out
literature-search assignments and reviewed the resulting information and that the information
was addressed when an action plan was developed. Id. at 176. We distinguished case law that
states that materials generated prior to the beginning of a peer-review process are not
privileged. We noted that the articles did not reference the patient’s care and, thus, could not
contain any adverse facts known to the medical staff about the patient’s care and frustrate the
Act’s goal. Id. at 176-77. However, we also noted that it was not the content of the articles that
was significant, but the manner in which the committee used them and what their use would
reveal about the committee’s internal-review process. Id. at 178. Denying application of the
privilege, we concluded, would frustrate the Act’s goal by discouraging “medical personnel
from openly discussing their colleagues’ actions.” Id. at 177-78.
¶ 71 Defendant asserts that we should scrutinize the QCRs “in light of the Act’s purpose” (id. at
178) as reflected in the 1995 amendment, as properly applied in Eid, and hold that the QCRs
are privileged both under the express provisions and according to the clear purpose of the Act.
¶ 72 Plaintiffs do not address Anderson, but they respond that designating every person who
must complete a QCR, including every employee and visitor, as a designee of the QA/I
subverts the Act’s purpose. The term “designate” means “to indicate and set apart for a specific
purpose, office, or duty.” Merriam-Webster Online Dictionary, http://www.merriam-webster.
com/dictionary/designate (last visited May 3, 2017). Plaintiffs note that defendant maintains
that the nurses who completed the QCRs are designees of the QA/I. Plaintiffs argue that, if
every person on defendant’s premises is responsible for drafting QCRs, defendant is
effectively not designating any specific person because no specific person is set apart from
another. Plaintiffs maintain that it is even more absurd to assert that a hospital visitor can
somehow be a designee of the QA/I. Also, plaintiffs argue that cloaking QCRs in the privilege
in 1999, even those that would not be completed until 2013, gives defendant scant incentive for
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advancing the goal of improved patient care. The Act’s purpose would be subverted, they
argue, by allowing hospitals to shield themselves from liability by declaring that certain
documents are privileged before they even exist. Defendant replies that the statute does not
require designees to be directly identified in advance and that, once a medical occurrence
happens and QCRs are prepared, each designee’s direct identity will be revealed, as it was
here, and they are subject to being deposed about the incident.
¶ 73 We disagree with defendant that Anderson compels a holding that the QCRs are privileged.
The Anderson committee’s request was targeted at articles relating to the patient’s care, and we
held that their disclosure would reveal the committee’s thought process. Anderson, 385 Ill.
App. 3d at 175. In contrast, here, the QA/I and other committees have a standing blanket
request to review all medical-occurrence QCRs. Thus, the concerns the Anderson court raised
about revealing the committee’s internal-review process are not present in this case.
¶ 74 As to plaintiffs’ suggestion that defendant has effectively not designated any person, where
any person on the premises can complete a QCR, we agree. But, even if the QA/I can designate
a broad universe of designees, we conclude that the 1995 amendment does not undermine the
case law that holds that the privilege applies only to information of such a committee (or, in
this case, designee) where the committee (or designee) is already investigating the incident at
issue. See Kopolovic, 2012 IL App (2d) 110383, ¶¶ 24-26 (noting that Roach and Grandi hold
that privilege applies 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). To hold
otherwise would allow an entity such as defendant to invoke the statutory privilege whenever
any medical occurrence is memorialized in a QCR by any person (employee or nonemployee)
who observed, heard, or otherwise had information concerning the event. Such a practice
“swallow[s] the rule” and “make[s] everything confidential, except for the patient’s own
medical records.” Chicago Trust, 298 Ill. App. 3d at 406. We believe that the legislature cannot
have intended as broad a reading of the amendment as defendant proposes. Defendant’s QCRs
are, by definition, not commencing any investigation because the persons completing them,
even if quality-assurance-committee designees, do not serve in that role. Defendant’s
policy-and-procedure manual states that QCRs “will be used to communicate occurrences or
variances affecting patients, physicians, visitors, volunteers, students, employee property, and
[defendant’s] property.” (Emphasis added.) The decision whether to investigate any incident is
not made until after the completed medical-occurrence QCRs are forwarded to other
personnel. For example, in the case of a sentinel event, the chief medical officer or the chief
quality officer “or his designee will determine if a *** team should be convened to conduct an
investigation[.]” All QCRs are sent to the risk-management department, which, according to
the manual, “facilitate[s] follow-up, investigation, resolution, and data collection.” In the
section addressing billing, the policy manual instructs that responsibility for certain costs “can
only be determined after investigation of the occurrence by Risk Management or their
designee.” Thus, in some general sense, the QCRs commence a process, but they clearly do not
commence an investigation. This is necessarily so because the manual implies that not all
QCRs will result in an investigation. We believe that our holding is consistent with the Act’s
purpose of effective medical-professional self-evaluation, while it is also mindful of the fact
that the Act neither facilitates medical-malpractice prosecution nor shields hospitals from
liability.
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¶ 75 The fact that the QCRs do not commence an investigation, along with their dual purpose,
compels a holding that the QCRs are effectively incident reports. Thus, in light of Roach,
Lindsey, and Chicago Trust, which, along with Kopolovic and Berry, 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 privilege does not apply where the
materials are used for the dual purposes of quality assurance and risk management (e.g., Webb,
Chicago Trust), we conclude that the QCRs are not privileged.
¶ 76 C. Contempt Finding
¶ 77 Finally, defendant requests that we vacate and/or reverse the trial court’s contempt finding
against it. In the trial court, defendant sought and obtained a “friendly” contempt order, which
is recognized as “a proper procedure to seek immediate appeal of a trial court’s discovery
order.” (Internal quotation marks omitted.) Anderson, 385 Ill. App. 3d at 185. Plaintiffs do not
dispute, and we agree, that defendant brought this appeal in good faith and that defendant was
not contemptuous of the trial court’s authority. Accordingly, we vacate the trial court’s
contempt order and fine. Id. at 186.
¶ 78 III. CONCLUSION
¶ 79 For the reasons stated, the judgment of the circuit court of Winnebago County is affirmed
in part and vacated in part.
¶ 80 Affirmed in part and vacated in part.
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