Find Legal Information

FOURTH DIVISION
May 13, 2004

J. Scott Myers, attorney for defendants, Marriott Senior Living Services, Inc., d/b/aMarriott Brighton Gardens of Hoffman Estates (Marriott) and Odessa McArdle, appeals from anorder of the circuit court which held him in contempt for refusing to produce certain documentsdemanded by plaintiff, Mary Pietro, during discovery. Defense counsel was assessed a $100 finefor his refusal to comply with the court's order. On appeal, counsel contends that the requesteddocuments are protected under the Code of Civil Procedure (Medical Studies Act or the Act)(735 ILCS 5/8-2101 et seq. (West 2002)) and the attorney-client privilege (166 Ill. 2d R. 201). For the following reasons, we affirm the circuit court's ruling with respect to the documents andvacate the finding of contempt.

BACKGROUND

Plaintiff brought this action against defendants Marriott and McArdle to recover damagesresulting from their alleged negligence in rendering care to plaintiff's father, Raymond Morman,while he was a resident at Marriott's assisted living facility. Plaintiff alleged that defendantsfailed to provide necessary emergency medical care, including cardiopulmonary resuscitation, andfailed to call 911 for assistance. Sohail Agha, a resident assistant, and Laura Dudek-Konar, anurse, were also named as respondents in discovery.⁽¹⁾ During the course of written discovery,plaintiff sought the production of various documents. Defendants objected, asserting that thesedocuments were privileged under the attorney-client privilege and the Act (735 ILCS 5/8-2101 etseq. (West 2002)). The documents at issue on appeal include witness statements from McArdle,Dudek-Konar, and Agha, as well as three other documents referred to as documents 2, 14, and137.

Defendants filed a privilege log which the court initially held to be insufficient. Subsequently, they were granted leave to file an amended log. According to the amended log, thedocuments are all contained in McArdle's personnel or confidential personnel file. Defendantsasserted that the handwritten statements of McArdle and Agha were generated during the courseof a peer review. No privilege was asserted with respect to any statement of Dudek-Konar. Itwas asserted that document 2 was an undated, handwritten note, authored in contemplation oflitigation and protected by the attorney-client privilege. With respect to document 14, it wasasserted that it was an unidentified handwritten note created on June 28, 2000, and protected bythe attorney-client privilege. It was further stated that document 137 was preliminary research ofevents generated during the course of a peer review and in contemplation of litigation. No authoror date was provided in the log for this document.

Defendants also supported their assertions of privilege with affidavits from the followingindividuals: Diana Barthel, the general manager and administrator of Marriott; Ruth Raine, aspecial service supervisor for Marriott's claim services department; and McArdle, Dudek-Konar,and Agha. According to Barthel's affidavit, she was responsible for investigating all incidentswhich occurred at the facility and reporting the results of said investigations to Marriott's riskmanagement/in-house legal department with her analysis. She stated that in accordance withMarriott's risk management policy and as a member of its quality assurance committee, sherequested that McArdle, Dudek-Konar, and Agha prepare written statements regarding theirinvolvement in Mr. Morman's care on the date of the occurrence. The purpose for the writtenstatement was "to protect the interests of Marriott and its employees should a lawsuit be filed,"and for quality assurance purposes. Additionally, she stated that the statements were reviewed byother department heads at Marriott who are also members of its quality assurance committee. With respect to documents 2 and 14, she stated that they were prepared by Beth Hovius,Marriott's assisted living manager. These documents were included in McArdle's personnel file atBarthel's direction during the course of her investigation and in contemplation of litigation.

According to Raine's affidavit, it was the policy of Marriott's claim services department todefend and indemnify its employees against litigation arising out of the scope of their employment. She stated that the department relied upon the analysis and opinions of Barthel when formulatingits position regarding this occurrence and the anticipated litigation. She further stated thatMarriott selected a law firm to protect the interests of Marriott and its employees in accordancewith its risk management policy.

McArdle, Dudek-Konar, and Agha filed identical affidavits. Therein, they stated that onMay 30, 2000, the morning of the incident, Barthel asked them to prepare a written statementregarding their involvement in Mr. Morman's care on the date of the occurrence. They furtherstated that they "understood this request was made for quality assurance purposes and becauseMarriott anticipated litigation resulting from this incident." It was also their understanding that"Barthel would forward same to Marriott's Risk Management/In-House Legal Department for theprotection of both Marriott and [their] interests in the event a lawsuit was filed."

The trial court was also supplied with the deposition testimony of Barthel and Raine. According to Barthel's deposition, members of the quality assurance committee, also known asthe resident care committee, reviewed the statements together on the day of the incident. Thestatements were prepared prior to their meeting, and no formal committee ever met. Rainetestified that Marriott had a self-insured retention under its liability policy in the amount of$100,000.

On November 19, 2002, after an in camera inspection, the trial court held a hearing on thedisputed documents. The court held that defendants failed to establish a privilege under the Actas to the witness statements of McArdle, Dudek-Konar and Agha. The court found that theprivilege log lacked elements necessary to assert such a privilege. Additionally, the court foundthat the statements at issue were generated prior to any quality assurance committee meeting andthat there was no evidence of a request by the committee for the information. The court furtherfound that McArdle, Dudek-Konar and Agha admitted knowledge that the statements they madewould be shared with others for quality assurance purposes. The court held that such knowledgedefeated the attorney-client privilege because the witnesses had no expectation of privacy.

With respect to documents 2 and 14, the trial court found that the attorney-client privilegewas waived by Marriott's placement of these materials in McArdle's personnel file. With respectto document 137, the trial court found that the amended privilege log was inadequate and lackedthe requisite information to sustain defendants' burden of proof. After the trial court ruled,defense counsel refused to produce the disputed documents and was held in contempt of courtand fined $100. Defense counsel timely appealed.

ANALYSIS

Medical Studies Act Privilege

Initially, we consider plaintiff's contention that the Act does not apply to Marriott because,as an assisted living facility, it is not one of the enumerated entities protected under the statute. The issue of whether an assisted living facility falls within the purview of the Act is one of firstimpression in the state. In answering that question, we are guided by the rules of statutoryconstruction. The primary goal of statutory construction is to ascertain and give effect to the intent of the legislature, and the most reliable indication of the legislature's intent is the plainlanguage of the statute. Metzger v. DaRosa, 209 Ill. 2d 30, 34-35, 805 N.E.2d 1165, 1167(2004). When the statute's language is clear, it will be given effect without resort to other aids ofstatutory construction. Metzger, 209 Ill. 2d at 35, 805 N.E.2d at 1167. This court will notdepart from the plain language of a statute by reading into it exceptions, limitations or conditionsthat conflict with the express legislative intent. Petersen v. Wallach, 198 Ill. 2d 439, 446, 764N.E.2d 19, 23 (2002). Statutory construction is a question of law subject to de novo review. Metzger, 209 Ill. 2d at 34, 805 N.E.2d at 1167.

The Act provides in relevant part:

"All information, interviews, reports, statements,memoranda, recommendations, letters of reference or other thirdparty confidential assessments of a health care practitioner'sprofessional competence, or other data of the Illinois Department ofPublic Health, local health departments, the Department of HumanServices * * *, the Mental Health and Developmental DisabilitiesMedical Review Board, Illinois State Medical Society, alliedmedical societies, health maintenance organizations, medicalorganizations under contract with health maintenance organizationsor with insurance or other health care delivery entities or facilities,tissue banks, organ procurement agencies, physician-ownedinsurance companies and their agents, committees of ambulatorysurgical treatment centers or post-surgical recovery centers or theirmedical staffs, or committees of licensed or accredited hospitals ortheir medical staffs, including Patient Care Audit Committees,Medical Care Evaluation Committees, Utilization ReviewCommittees, Credential Committees and Executive Committees, ortheir designees (but no medical records pertaining to the patient),used in the course of internal quality control or of medical study forthe purpose of reducing morbidity or mortality, or for improvingpatient care or increasing organ and tissue donation, shall beprivileged, strictly confidential and shall be used only for medicalresearch, increasing organ and tissue donation, the evaluation andimprovement of quality care, or granting, limiting or revoking staffprivileges or agreements for services * * *. 735 ILCS 5/8-2101(West 2002).

The Act further provides that such privileged material "shall not be admissible as evidence, nordiscoverable in any action of any kind in any court or before any tribunal, board, agency orperson." 735 ILCS 5/8-2102 (West 2002).

Plaintiff is correct that the Act does not protect all information used for quality control,but only that information belonging to certain entities and categories of organizations. Niven v.Siqueira, 109 Ill. 2d 357, 365, 487 N.E.2d 937, 941 (1985). Defense counsel argues that while anassisted living facility is not expressly named in the statute, it is encompassed under a catchallcategory of "other health care delivery entities or facilities." We disagree with counsel'sconstruction of the statute. A correct grammatical reading of the statute indicates that thelegislature intended to include within its scope a series of entities and organizations, and haschosen to separate each of them by the use of a comma. When viewed in this context, the statutedoes not protect data of "other health care delivery entities or facilities." Rather, it protects dataof "medical organizations under contract with * * * other health care delivery entities orfacilities." (Emphasis added.) 735 ILCS 5/8-2101 (West 2002). Marriott agrees that it is not amedical organization under contract with a health care delivery facility. As such, under the plainlanguage of the statute, Marriott does not fall within the scope of the Act.

Additionally, we find that the historical and statutory notes provide support for ourinterpretation. On numerous occasions, the legislature has chosen to amend the Act to includeadditional entities within its purview. See, e.g., Public Act 83-1001 (Pub. Act 83-1001, eff. July1, 1984) (added data of the Illinois Department of Mental Health and Developmental Disabilities);Public Act 84-544 (Pub. Act 84-544, eff. January 1, 1986) (added data of health maintenanceorganizations and medical organizations under contract with health maintenance organizations);Public Act 84-902 (Pub. Act 84-902, eff. January 1, 1986) (added data of the Mental Health andDevelopmental Disabilities Medical Review Board); Public Act 89-393 (Pub. Act 89-393, eff.August 20, 1995) (included data of tissue banks and organ procurement agencies). Had thelegislature intended to include health care facilities such as nursing homes, long-term carefacilities, or assisted living facilities within its purview, it could have done so explicitly.

Indeed, the legislature has addressed the privileged nature of quality assurance informationat these types of facilities under other specific statutory schemes. For example, section 4 of theLong-term Care Peer Review and Quality Assessment and Assurance Protection Act (745 ILCS55/4 (West 2002)) provides that proceedings and communications of peer review or qualitycontrol committees of long-term care providers are privileged and confidential. However, underthe Assisted Living and Shared Housing Act (210 ILCS 9/1 et seq. (West 2002)), which regulatesassisted living facilities, the legislature has made no provision regarding the privileged nature ofquality assurance information. Accordingly, the legislature intended to address these types offacilities distinctly from those encompassed under the Medical Studies Act. For all of theforegoing reasons, assisted living facilities are not covered entities under the Act.

Even if we were to find that the legislature intended to include assisted living facilitiesunder the Act, Marriott's resident care committee is not consistent with the type of committeeenvisioned by the Act. The purpose of the Act is to ensure that members of the medicalprofession will effectively engage in self-evaluation of their peers in the interest of improving thequality of health care. Roach v. Springfield Clinic, 157 Ill. 2d 29, 40, 623 N.E.2d 246, 251(1993). The Act is premised on the belief that, absent the privilege, health care practitionerswould be reluctant to engage in frank evaluation of their colleagues. Roach, 157 Ill. 2d at 40, 623N.E.2d at 251. Thus, the Act does not protect information of any type of quality control groupfound in any corporate setting but, rather, specific committees capable of evaluating patient care.

Here, while there were two nurses who were members of the resident care committee, theother members included a corporate administrator, a director of food and beverages, a director offacilities management, and other people as needed. Accordingly, while individual nurses mayhave been capable of peer review, this particular committee was not qualified to provideprofessional self-evaluation or render opinions regarding the adequacy of the patient carerendered to Mr. Morman as envisioned by the Act.

Furthermore, the Act does not protect all information used for internal quality control. Information initiated, created, prepared or generated by a peer-review committee is privilegedunder the Act, even if later disseminated outside the peer-review process. Webb v. Mount SinaiHospital & Medical Center of Chicago, Inc., No. 1-03-0936 (March 29, 2004). However, adocument generated in the ordinary course of a hospital's medical business, or for the purpose ofrendering legal opinions or to weigh potential liability risk or for later corrective action is notprivileged even if later used by a committee in the peer-review process. Webb, 1-03-0936;Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 406, 698 N.E.2d 641, 649(1998). Accordingly, the Act protects against disclosure of the mechanisms of the peer reviewprocess, including information gathering and deliberations leading to the ultimate decisionrendered by a peer-review committee, but does not protect against the discovery of informationgenerated before the peer-review process begins or information generated after the peer-reviewprocess ends. Webb, No. 1-03-0936; Chicago Trust Co., 298 Ill. App. 3d at 406, 698 N.E.2d at649; Grandi v. Shah, 261 Ill. App. 3d 551, 556, 633 N.E.2d 894, 898 (1994).

The burden of establishing the applicability of the privilege rests with the party seeking toinvoke the privilege. Roach, 157 Ill. 2d at 41, 623 N.E.2d at 251. Whether the privilege appliesis generally a matter of law reviewed de novo, but the question of whether specific materials arepart of the peer-review process under the Act is a factual question within that legal determinationand will not be reversed on review unless it is against the manifest weight of the evidence. Niven,109 Ill. 2d at 368, 487 N.E.2d at 943; Chicago Trust Co., 298 Ill. App. 3d at 401, 698 N.E.2d at645.

Defense counsel contends that the written statements of McArdle, Dudek-Konar and Aghawere privileged under the Act because they were "secured for purposes of quality assurance andfor the evaluation and improvement of patient care." Additionally, counsel contends thatdocument 137 was privileged because it was prepared "in conjunction with the quality assurancecommittee's proceedings." The record is silent as to when, if ever, the quality assurancecommittee formally met for purposes of rendering opinions regarding this incident. The onlyinformation provided reflects that the documents were made part of McArdle's personnel file andthat, at the time the statements were prepared, no formal committee had convened. Nor wasthere any evidence presented that the committee requested these statements. Barthel's affidavitstated that the witness statements were "reviewed" by "members" of the quality assurancecommittee and that she shared the "results" of her investigation into the incident with thecommittee. Therefore, it was not against the manifest weight of the evidence for the trial court tofind that the statements were not "part of" the internal quality control process.

Our courts have repeatedly distinguished between nonprivileged information reported to acommittee and privileged information generated by or requested by a committee. See, e.g.,Chicago Trust Co., 298 Ill. App. 3d at 402, 698 N.E.2d at 646 (reports prepared shortly afterincident and used by oversight committee to review incident were not privileged where reportswere not requested by, and therefore did not belong to, a committee engaged in the peer-reviewprocess); Roach, 157 Ill. 2d at 41-43, 623 N.E.2d at 251-52 (investigation by chief ofanesthesiology was not tantamount to investigation by a committee; a committee is comprised ofa body or group of persons, not just a single individual). Accordingly, where the statements werenot initiated, created or generated by the quality assurance committee, defendants have failed toestablish that the privilege is applicable to the statements of McArdle, Dudek-Konar and Agha.

With respect to document 137, no information was provided as to the author of thedocument or when the document was prepared or by whom the document was prepared. Supreme Court Rule 201(n) (166 Ill. 2d R. 201(n)) requires that the privilege log describe "thenature of the documents * * * not produced or disclosed" and "the exact privilege which is beingclaimed." The burden was on Marriott to establish why the Act was properly invoked. 166 Ill. 2dR. 201(n). Without this information, it was not unreasonable for the trial court to find that therewas insufficient information on which to base a privilege under the Act. Furthermore, the trialcourt had an opportunity to view the document in camera and the document does not indicate bywhom it was prepared or to whom it was addressed.

Attorney-Client or Insurer-Insured Privilege

Defense counsel contends that the statements of McArdle, Dudek-Konar and Agha areprotected by the attorney-client privilege or the insurer-insured privilege. Supreme Court Rule201(b)(2) provides, in pertinent part:

"All matters that are privileged against disclosure on thetrial, including privileged communications between a party or hisagent and the attorney for the party, are privileged againstdisclosure through any discovery procedure. Material prepared byor for a party in preparation for trial is subject to discovery only if itdoes not contain or disclose the theories, mental impressions, orlitigation plans of the party's attorney." 166 Ill. 2d R. 201(b)(2).

The attorney-client privilege exists for the purpose of encouraging and promoting the full andfrank consultation between a client and his or her legal advisor by removing the fear of compelleddisclosure of information. Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 117-18,432 N.E.2d 250, 256 (1982). The privilege is an exception to the duty to disclose. ConsolidationCoal Co., 89 Ill. 2d at 117-18, 432 N.E.2d at 256. The party claiming the attorney-clientprivilege bears the burden of presenting factual evidence that establishes the privilege. Cox v.Yellow Cab Co., 61 Ill. 2d 416, 419-20, 337 N.E.2d 15, 17 (1975). To be entitled to theprotection of the attorney-client privilege, a claimant must show that (1) the statement originatedin confidence that it would not be disclosed; (2) it was made to an attorney acting in his legalcapacity for the purpose of securing legal advice or services; and (3) it remained confidential. Rounds v. Jackson Park Hospital & Medical Center, 319 Ill. App. 3d 280, 285-86, 745 N.E.2d561, 566 (2001); Hyams v. Evanston Hospital, 225 Ill. App. 3d 253, 257-58, 587 N.E.2d 1127,1130 (1992).

Our supreme court has also stated that this privilege extends to communications betweenan insurer and an insured, where the insurer is under an obligation to defend the insured. Peoplev. Ryan, 30 Ill. 2d 456, 461, 197 N.E.2d 15 (1964); see also Chicago Trust Co., 298 Ill. App. 3dat 407, 698 N.E.2d at 649; Claxton v. Thackston, 201 Ill. App. 3d 232, 235, 559 N.E.2d 82, 85(1990); Ekstrom v. Temple, 197 Ill. App. 3d 120, 130, 553 N.E.2d 424, 430 (1990). In Ryan, thesupreme court held that a communication given by an insured to its insurance company'sinvestigator retained its privileged character. Ryan, 30 Ill. 2d at 460-62, 197 N.E.2d at 17-18. The court reasoned that the liability carrier usually selects the attorney under a common liabilitycontract. Thus, "the insured may properly assume that the communication is made to the insureras an agent for the dominant purpose of transmitting it to an attorney for the protection of theinterests of the insured." Ryan, 30 Ill. 2d at 461, 197 N.E.2d at 18; Chicago Trust Co., 298 Ill.App. 3d at 407, 698 N.E.2d at 651.

In this context, it has been stated that to extend the attorney-client privilege, the partyasserting the privilege must prove: (1) the identity of the insured; (2) the identity of the insurancecarrier; (3) the duty to defend a lawsuit; and (4) that a communication was made between theinsured and an agent of the insurer. Chicago Trust Co., 298 Ill. App. 3d at 407, 698 N.E.2d at649.

Here, defense counsel maintains that Marriott and its employees are entitled to extend theprivilege based upon Marriott's status as a self-insurer with a self-insured retention of $100,000. He maintains that where Marriott has a duty to defend its employees against any litigation arisingout of the scope of their employment, the witness statements are confidential communicationsbetween an insured (employees McArdle, Dudek-Konar and Agha) and its insurer (Marriott). Defendants presented an affidavit from Marriott's claims handler stating that Marriott has a dutyto defend its employees. They also provided the court with a copy of Marriott's insurance policyendorsement which states that Marriott employees are additional insureds under the policy whileacting within the scope of their duties.

The question of whether the privilege applies to an insured's communication to a self-insurer rather than an insurance carrier has never been squarely addressed in Illinois. While theissue has been raised, the court has based its decision on other grounds. See, e.g., Chicago TrustCo., 298 Ill. App. 3d at 410, 698 N.E.2d at 651 (hospital failed to show that documents weredrafted to protect the insured's own interests); Rounds, 319 Ill. App. 3d at 287, 745 N.E.2d at568 (issue waived for failure to raise it in the trial court); Buckman v. Columbus-Cabrini GreenMedical Center, 272 Ill. App. 3d 1060, 1066, 651 N.E.2d 767, 771 (1995) (court appliedattorney-client privilege instead where hospital's attorney acted directly as nurse's attorney inrendering legal advice and services).

Here, we need not determine whether defendants are entitled to extend the privilege to aself-insurer because defendants failed to meet the threshold burden of proving that the statementsremained confidential. McArdle, Dudek-Konar and Agha never stated in their affidavits that theyintended their statements to remain confidential. They knew that their statements were not onlyprepared for transmittal to the risk management/in-house legal counsel, but were prepared forpurposes of quality control. As such, these employees knew that their actual statements wouldnot remain confidential with access only provided to the claims administrators, risk managers/in-house counsel or outside counsel. By disseminating these statements outside these confines, theseemployees had no expectation of privacy, a necessary element of the attorney-client privilege andits offshoot, the insurer-insured privilege. To allow a broader scope of dissemination wouldeffectively swallow the rule, which provides for liberal discovery. Buckman, 272 Ill. App. 3d at1066, 651 N.E.2d at 771 ("[b]ecause it is the privilege, not the duty to disclose, that is theexception, the privilege ought to be strictly confined within its narrowest possible limits"). Accordingly, we find that the documents did not remain privileged.

We next address defense counsel's argument that documents 2, 14, and 137 are privilegedbecause they were prepared in contemplation of litigation. According to Barthel's affidavit,documents 2 and 14 were prepared by Beth Hovius, Marriott's assisted living manager, and wereincluded in McArdle's personnel file at Barthel's direction during the course of her investigationand in contemplation of litigation. As stated in Ryan, the privilege applies where thecommunication is made by the insured to the insurer or its agent for the dominant purpose ofprotecting the interests of the insured. Ryan, 30 Ill. 2d at 460-61, 197 N.E.2d at 18.

Here, it has not been shown that these documents were drafted by Hovius (the insured) inorder to protect her interests. See Chicago Trust Co., 298 Ill. App. 3d at 410, 698 N.E.2d at651. Indeed, an in camera review of these documents reveals that the purpose was not to protectthe interests of the insured. Additionally, these documents did not remain confidential whereMarriott placed them in McArdle's personnel file. With respect to document 137, defendantshave not met their burden of proof to establish the necessary elements of the privilege where thereis no information as to who authored the document, and to whom it was sent. Accordingly, thetrial court did not err in ordering that defendants produce documents 2, 14, and 137.

Contempt Order

Lastly, we address the court's contempt order. The record reveals that defense counsel'sconduct was not contemptuous and that the trial court entered the contempt order at counsel'srequest as the proper procedure to seek immediate appeal of a trial court's discovery order. Buckman, 272 Ill. App. 3d at 1067, 651 N.E.2d at 771. Therefore, we vacate the trial court'scontempt order and fine of $100. Berry v. West Suburban Hospital Medical Center, 338 Ill. App.3d 49, 57, 788 N.E.2d 75, 81 (2003).

Accordingly, for the foregoing reasons, we affirm the trial court's ruling with respect tothe disputed documents at issue on appeal and vacate the trial court's contempt order.

Affirmed in part; vacated in part.

QUINN, P.J. and GREIMAN, J., concur.

1. On July 15, 2003, these individuals were converted from respondents in discovery todefendants.