Find Legal Information

FIRST DIVISION
August 11, 2003

Defendant Northwest Community Hospital (Northwest) appeals from a circuit court orderholding it in contempt for refusing to produce certain documents requested in discovery byplaintiff Richard Ardisana. Northwest contends that the documents in question are protectedfrom discovery under section 8-2101 of the Code of Civil Procedure (735 ILCS 5/8-2101 (West1998)) (the Medical Studies Act or the Act).

Factual Background

The underlying action in this case arises out of medical care provided to plaintiff atNorthwest from November 11, 1999, through January 10, 2000. In his second amendedcomplaint, plaintiff alleges in pertinent part that he underwent a surgical procedure at Northweston November 11, 1999, to remove a growth from his colon. In the days following that surgery,plaintiff developed gastric reflux, vomiting and abdominal bleeding. The vomiting caused woundevisceration, necessitating repair surgery done under general anesthesia on November 16, 1999. Plaintiff aspirated vomit during the latter surgery and subsequently developed aspirationpneumonia.

Plaintiff's complaint further alleges that employees, agents and/or apparent agents ofNorthwest, including the surgeon (Dr. Robert Aki) and the anesthesiologist for the secondsurgery (Dr. Subhash Balaney), were negligent in various respects that caused the woundevisceration and the aspiration pneumonia, which in turn led to severe and permanent damage tohis lungs.

In the course of discovery, plaintiff filed a supplemental request to produce, asking in partthat Northwest produce the following documents:

"Any and all writings, memos or documents pertaining to any conclusions or final recommendations for any peer review process, including the Department of Surgery, pertaining to Richard Ardisana. If any materials are claimed to be privileged, please provide a privilege log identifying the document and its date."

Northwest objected on the ground that the documents it had were privileged pursuant tothe Medical Studies Act. The trial court directed Northwest to provide for its in camera review aprivilege log stating the basis for each claim of privilege, a copy of the documents listed in the log,and a copy of the complaint. Northwest filed the requested documents, as well as the affidavit ofits risk manager, Karla Ford, in which it was averred that the documents provided for in camerainspection

 "were generated in conjunction with investigations by the General Surgery Quality Audit and Anesthesia Quality Improvement Audit Committees. These documents were prepared solely for those two committees and by these committees. The documents referenced in the privilege log under Roman numerals I and II were used exclusively by those committees and were shared with no one outside of those committees. The sole exception is the letter sent to Dr. Balaney, which was sent to him but arose exclusively from the committee's investigation and requested information for the exclusive use of the committee."

The attached privilege log identified two pertinent groups of documents :

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.

Plaintiff did not file a written response to Northwest's objections. The trial court issued awritten memorandum decision on June 11, 2002, in which it ruled that all of the material claimedby Northwest to be privileged was discoverable. Specifically, the court held that only materialthat was generated during the temporal parameters of the peer-review process was privileged andthat Northwest had failed to establish when the process in this case commenced and ended. Additionally, the court found that the internal conclusions and recommendations of thecommittees constituted "results," which are not privileged under the Act.

On June 24, 2002, Northwest filed a motion to reconsider.⁽¹⁾ To that motion were attachedtwo additional affidavits. The first was that of Cynthia Dougherty, R.N., who was director ofNorthwest's quality measurement and improvement (QMI) department when the medical care atissue was provided. Ms. Dougherty averred that the quality review in this case commencedshortly after plaintiff's discharge and was triggered by the fact that it met established screeningcriteria set by the departments of surgery and anesthesia. She outlined the reviewing process andthe steps taken to ensure that the information generated during the course of that review remainedconfidential.

The second affidavit was that of Susan Sullivan, another member of the QMI department. Ms. Sullivan was involved with the reviews conducted in this case by both the department ofsurgery and the department of anesthesia. She averred the department of surgery concluded itsreview on April 19, 2000, but that, as of the date of her affidavit (June 24, 2002), she was notaware that the department of anesthesia had yet completed its review. Like the affidavit of Ms.Dougherty, Ms. Sullivan's affidavit contained detailed information with respect to the steps takento preserve the confidentiality of the documents generated during the peer-review process.

Both affiants stated that the documents in question (labeled exhibit E) pertained solely toquality reviews conducted on plaintiff's care and on the care of other patients that the committeesreviewed during the same meetings.

On August 12, 2002, the trial court issued its written ruling on Northwest's motion toreconsider. The court ordered that the documents containing references to patients other thanplaintiff be redacted because the information was irrelevant. It otherwise denied the motion,however, because the supplemental affidavits could have been submitted prior to the court's initialruling and because, in the court's view, the added materials still did not specifically identify whenthe peer-review process began, who started it and when it ended.

Despite the court's ruling, Northwest continued to refuse to produce the disputeddocuments. On August 22, 2002, the court entered an order, nunc pro tunc, in which it heldNorthwest in contempt, and imposed a fine of $50. This appeal followed.

Discussion

On appeal, Northwest contends that the documents at issue fall squarely within the letterand spirit of the Medical Studies Act and that the circuit court accordingly erred when it ruledthat they were not privileged from discovery.

The burden of establishing a privilege under the Medical Studies Act is on the partyseeking to invoke it. Roach v. Springfield Clinic, 157 Ill. 2d 29, 41 (1993). Whether a discoveryprivilege applies is a matter of law, which we review de novo. Niven v. Siqueira, 109 Ill. 2d 357,368 (1985). However, the question of whether specific materials are part of a medical study or aninternal quality control is a factual question within that legal determination, subject to reversalupon review only if it is against the manifest weight of the evidence. Chicago Trust Co. v. CookCounty Hospital, 298 Ill. App. 3d 396, 401 (1998).

The Medical Studies Act provides:

"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 and 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, *** the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges or agreements for services ***." 735 ILCS 5/8-2101 (West 1998).

The Act further provides that such privileged material "shall not be admissible as evidence,nor discoverable in any action of any kind in any court or before any tribunal, board, agency orperson." 735 ILCS 5/8-2102 (West 1998).

The purpose of the Medical Studies Act is to advance the quality of health care byensuring that members of the medical profession effectively engage in a peer-review process. Richter v. Diamond, 108 Ill. 2d 265, 269 (1985). Absent a confidentiality provision, physiciansmight be reluctant to engage in strict peer review due to a number of apprehensions: loss ofreferrals, respect, and friends, possible retaliations, vulnerability to tort actions, and fear ofmalpractice actions in which the records of the peer-review proceedings might be used. Jenkins v.Wu, 102 Ill. 2d 468, 480 (1984), quoting G. Gusfield, Note, Medical Peer Review Protection inthe Health Care Industry, 52 Temple L.Q. 552, 558 (1979). Thus, the Act protects documentsthat arise from the workings of a peer-review committee (Roach, 157 Ill. 2d at 40) and that are anintegral part but not the result of the peer-review process. Richter, 108 Ill. 2d at 269.

With the foregoing principles in mind, we examine the trial court's ruling.

A. Recommendations vs. Results

The trial court determined that the "conclusions or final recommendations" of a peer-review committee are the equivalent of discoverable "results." Based on this premise, the courtordered produced pages 1 and 2 of the surgical department quality review, which contain acommittee conclusion; page 9 of the minutes of the general surgery QMI conference, whichcontains two conclusions; the "indication of" conclusions contained in an anesthesia qualitymanagement worksheet; and the letter sent by the anesthesia department chair to Dr. Balaney inwhich additional information for the peer review was sought.

Though the memorandum decision is well-reasoned, we find the trial court's analysis tohave been flawed, as it rests on an inaccurate premise. It is true that results of the peer-reviewprocess are not privileged; however, the court in its order has purportedly broadened the categoryof what constitutes "results" beyond the limits we find to be contained in the relevant case law. Results of a peer-review committee take the form of ultimate decisions made or actions taken bythat committee, or the hospital, and include the revocation, modification or restriction ofprivileges, letters of resignation or withdrawal, and the revision of rules, regulations, policies andprocedures for medical staff. See Willing v. St. Joseph Hospital, 176 Ill. App. 3d 737, 743-44(1988). The recommendations and internal conclusions of peer-review committees, which may ormay not lead to those results, are not discoverable. Chicago Trust Co. v. Cook County Hospital,298 Ill. App. 3d 396, 402 (1998); Ekstrom v. Temple, 197 Ill. App. 3d 120, 126 (1990); Toth v.Jensen, 272 Ill. App. 3d 382, 386 (1995); Pritchard v. SwedishAmerican Hospital, 191 Ill. App.3d 388, 399 (1989); Richter v. Diamond, 108 Ill. 2d at 269-70; Gleason v. St. Elizabeth MedicalCenter, 135 Ill. App. 3d 92, 94-95 (1985). Indeed, the plain language of the Medical Studies Actprovides that "recommendations" used in the course of internal quality control are to receive itsprotection.

Accordingly, we reverse that portion of the trial court's ruling which provides for theproduction of any portion of the above-referenced documents, all of which we find to beprivileged under the Act in their entirety.

B. Temporal Limitations

The second basis used by the trial court to support its decision is the failure on the part ofNorthwest to come forward with evidence relating to the start and end dates of the peer-reviewprocess.

Preliminarily in this regard, it should be noted that the trial court did not initially requestthat such documentation be supplied. Instead, the court asked Northwest to provide a privilegelog, the disputed documents for in camera inspection, and a copy of the complaint. In addition tothe foregoing, Northwest provided the affidavit of its risk manager (Karla Ford), which stated thatthe documents in question: were generated in the process of investigations by the general surgeryquality improvement audit and anesthesia quality improvement committees, were prepared solelyfor those two committees, and were used exclusively by those two committees (with theexception of the letter to Dr. Balaney). Plaintiff failed to submit any counteraffidavits tocontradict those averments. When the facts within an affidavit are not contradicted with acounteraffidavit, they must be taken as true. Flannery v. Lin, 176 Ill. App. 3d 652, 658 (1988).

In this case, it was the trial court that sua sponte raised a challenge to the sufficiency of anaffidavit that it did not require in the first place. Under these circumstances, Northwest wasentitled to submit and have considered additional affidavits along with its motion to reconsider. See Neade v. Portes, 303 Ill. App. 3d 799, 805-06 (1999).

The foregoing discussion notwithstanding, the court did find that, even if the materialsfrom the latter two affidavits were considered, Northwest had still failed to establish that thedocuments at issue were generated while the peer-review process was ongoing, as opposed tobefore or after the process took place. The court also correctly noted that the Medical StudiesAct does not protect against disclosure of information generated before a peer-review processbegins or after it ends. Grandi v. Shah, 261 Ill. App. 3d 551, 556 (1994). The burden ofestablishing the applicability of a privilege under the Act lies with the party who invokes it. Roach,157 Ill. 2d at 41. Claims of privilege may be supported either by submitting the purportedlyprivileged materials for in camera inspection or by submitting affidavits setting forth factssufficient to establish the applicability of the privilege to the particular documents being withheld. Ekstrom, 197 Ill. App. 3d at 127. In this case, Northwest did both.

We too have examined the disputed documents, which have been supplied under seal. Ourexamination has revealed that, affidavits and dates notwithstanding, none of the documents aresubject to disclosure. This is because each of the documents establishes, by its own content, thatit served an integral function in the peer-review information-gathering and decision-makingprocess. See, e.g., Toth, 272 Ill. App. 3d at 386. We agree with Northwest that the minutesfrom the surgical audit committee and the general surgery QMI committee in which plaintiff's caseis discussed self-evidently constitute "investigative and deliberative materials generated by ahospital committee in formulating its recommendations" (Green v. Lake Forest Hospital, 335 Ill.App. 3d 134, 138 (2002)), and they are therefore privileged under the Act. See Ekstrom, 197 Ill.App. 3d at 128 (minutes of qualified peer-review committees are protected from discovery underthe Medical Studies Act).

As to the quality management/improvement worksheets, it is equally clear from theircontent that they were authored for the use of a peer-review committee and are thus entitled toprotection from disclosure. Toth, 272 Ill. App. 3d at 386.

Finally we find that the letter from the anesthesia department chair to Dr. Balaney (theanesthesiologist in plaintiff's second surgery) is, by its own terms, privileged. The letter is arequest from the chair, on behalf of the committee, for additional information to be used by thecommittee in its ongoing investigation. See Stricklin v. Becan, 293 Ill. App. 3d 886, 891 (1997)(a committee's attempt to generate new opinions or information for the committee's considerationis privileged). The fact that the letter was to an individual outside of the committee proper doesnot compromise its privileged status, since disclosure of information privileged under the Act hasno effect on its nondiscoverability. 735 ILCS 5/8-2102 (West 1998).

C. The Contempt Finding

Following the denial of its motion to reconsider, Northwest asked that the trial court findit in contempt for its continued refusal to turn over the disputed documents, so that it could testthe propriety of the production order. Requesting that a trial court enter a contempt order is aproper procedure to seek immediate appeal of a trial court's discovery order. Buckman v.Columbus-Cabrini Medical Center, 272 Ill. App. 3d 1060, 1067 (1995). In this case, we find thatNorthwest's decision not to produce the documents in question was made in good faith and basedupon sound legal arguments and was not contemptuous of the trial court's authority. See Roundsv. Jackson Park Hospital & Medical Center, 319 Ill. App. 3d 280, 289 (2001). We thereforevacate the order finding Northwest in contempt and imposing a $50 fine.

Conclusion

For the foregoing reasons, we find that the circuit court abused its discretion in allowingfor discovery of the disputed documents. We accordingly reverse the circuit court's ruling andremand this case for further proceedings. We also vacate the contempt order and itsaccompanying fine.

Reversed in part and vacated in part; cause remanded.

GORDON, P.J., and O'MALLEY, J., concur.

1. Northwest produced some of the documents the court ruled to have been discoverable,specifically, worksheets generated for and used by Northwest's risk management department. Those documents are not at issue in this appeal.