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SECOND DIVISION

FEBRUARY 6, 2001

No. 1-00-1123

JUSTICE COUSINS delivered the opinion of the court: Defendant-appellant, Jackson Park Hospital (JPH), appealsfrom the trial court's order compelling it to disclose certaindocuments and its order finding JPH in contempt of court forfailing to turn over those documents to the plaintiff-appellee,Kenya Rounds, special administrator of the estate of DeonteWarren, deceased. The issues presented for review are: (1)whether the trial court erred in compelling the production of thedocuments where the defendant claims they were generated withinthe scope of the attorney-client privilege; and (2) whether thetrial court erred in finding JPH in contempt of court andimposing a fine of $100 for its good-faith refusal to turn overdocuments it believed to be privileged.

We affirm the discovery order and direct the trial court tovacate the contempt order.

BACKGROUND

Plaintiff, Kenya Rounds, sought to recover damages for thealleged medical malpractice of JPH and other defendants arisingout of the delivery of her fetus, Deonte Warren, on May 28, 1996. Plaintiff alleged that: JPH was negligent in discharging Roundsfrom JPH after she presented the clinical signs and symptoms ofplacental abruption; JPH failed to inform the attendingobstetrical physician of Rounds' signs and symptoms before shewas discharged and transferred to St. Bernard Hospital; JPHfailed to perform an emergency cesarean section on Rounds; JPHfailed to utilize available obstetrical techniques which wouldhave resulted in Deonte's delivery before his death; and JPHfailed to appropriately respond to the clinical signs of vaginalbleeding, a firm uterus, and Deonte's fetal status. Roundsalleged that, as a result of JPH's negligence, Deonte sufferedinjuries that resulted in his death.

In its answer, JPH admitted that it provided nursing andmedical treatment to Rounds and that Drs. Saric and Kogantiprovided treatment to Rounds on May 28, 1996. JPH denied thatRounds was assessed with vaginal bleeding, leaking amnioticfluid, and had a firm uterus. JPH further denied that eitherSaric or Koganti ordered and/or allowed Rounds to be dischargedfrom JPH and transferred to St. Bernard. Finally, JPH denied allallegations of wrongdoing and negligence.

In its response to Rounds' request for production ofdocuments, JPH claims that it produced more than 350 pages ofdocuments. In response to Rounds' request for documentscontaining the "opinions, theories, conclusions, or estimates"regarding Rounds' physical condition and Deonte's birth, JPHresponded that it had certain nursing incident reports andanother document prepared by nurse Edith Nwankwo regarding thesequence of events of Rounds' transfer from JPH to St. Bernard'sHospital. JPH asserted that these documents were made inanticipation of litigation and were otherwise protected bysection 8-2101 of the Code of Civil Procedure (the MedicalStudies Act) (735 ILCS 5/8-2101) (West 1998)) and, therefore,withheld them from disclosure pursuant to the attorney-clientprivilege and the Medical Studies Act.

On January 9, 1998, JPH was granted leave to file itsresponse to Rounds' first supplemental request for production. JPH claims that it provided to Rounds more than 290 additionalpages of documents, excluding the nurses' incident reports andNwankwo's statement. In December of 1999, nurse Frye wasdeposed. During Frye's deposition, the following was elicited byplaintiff's counsel:

"Q. Did you fill out an incident report?

A. Yes, I did.

Q. Why?

A. Because I was instructed to.

Q. Who instructed you to?

A. My manager.

Q. Who was your manager?

A. Andrea Howard.

* * *

Q. When did she instruct you to fill out an incident report?

A. I don't remember.

Q. Was it that same day?

A. I don't remember."

On February 10, 2000, Rounds filed a motion to compelproduction of the withheld documents. The trial court orderedJPH to provide a privilege log for all documents withheld fromdiscovery and to provide copies of such documents for an incamera inspection. On February 21, 2000, nurse Nwankwo wasdeposed.

On February 23, 2000, JPH presented its privilege log, whichprovided:

"1. Jackson Park Hospital and Medical Center NursingService Department-Special Report authored by Lavelle Frye,R.N. Privilege asserted: Attorney-client Privilege andMedical Studies Act.

2. Jackson Park Hospital and Medical Center NursingService Department-Special Report authored by Andrea Howard,R.N. Privilege asserted: Attorney-client Privilege andMedical Studies Act.

3. Jackson Park Hospital and Medical Center NursingService Department-Special Report authored by Edith Nwankwo,R.N. Privilege asserted: Attorney-client Privilege andMedical Studies Act.

4. Statement of Edith Nwankwo, R.N. regarding sequence oftransfer of events. Privilege asserted: Attorney-clientPrivilege and Medical Studies Act."

On February 25, 2000, plaintiff delivered to the trial courta letter addressing the inadequacy of the privilege log. OnFebruary 28, 2000, the court ruled that JPH failed to establishthat the documents were protected under the attorney-clientprivilege. The court also held that the Medical Studies Act didnot protect the documents from disclosure. The court stated:

"With regard to the statements of these four individuals,there is no establishment of number one, whether thesestatements were made to an attorney; number two, if theywere, who is the attorney; number three, in what capacitythe attorney was acting if and when the statements were madeto an attorney; number four, for what purpose the statementswere made to the attorney; number five, there is no showingthat the statements or reports remain confidential betweenthe attorney purportedly to whom they were made and themaker of these statements or reports, meaning all four RNs;number six, there is no showing that any of these RNsoccupied a position within the hospital control group. Theyare not shown to have an advisory role. They are not shownto be in a position of top management that would notnormally make a decision without their opinion or advice.

So none of the elements of the attorney/client privilegehave been established with regard to these reports, and theobjection or assertion of privilege on behalf of JacksonPark Hospital to prevent disclosure based on attorney/clientprivilege is overruled, and the plaintiff's motion to compelon this basis is granted.* * *

If a document is created in the normal course of ahospital's business or for rendering legal opinions or toweigh potential liability risks or for later correctiveaction by the hospital, that information is not privilegedunder medical studies ***.

* * *

It is like a standard incident report that is apparentlyused at the hospital for anything unusual that might occur.*** There has been no establishment of any attorney/clientprivilege such that these reports would be privileged fromdisclosure."

JPH was ordered to turn over the documents on or beforeMarch 6, 2000. On March 17, 2000, the trial court heardarguments on JPH's motion to reconsider. The trial court ruledthat Nwankwo's affidavit did not establish the requisite elementsof the attorney-client relationship and ordered JPH to provide acopy of Nwankwo's statement to Rounds. JPH declined to do so andthe trial court found JPH in contempt of court and imposed a $100fine against it. The trial court denied JPH's request to stayall discovery proceedings pending its appeal.

ANALYSIS

Standard of Review

A trial court is vested with the inherent power to enforceits orders and preserve its dignity by the use of contemptproceedings. People v. Warren, 173 Ill. 2d 348, 368, 671 N.E.2d700 (1996). Where an individual appeals a contempt judgmentimposed for violating a discovery order, that discovery order isalso subject to review. Almgren v. Rush-Presbyterian-St. Luke'sMedical Center, 162 Ill. 2d 205, 216, 642 N.E.2d 1264 (1994). The standard of review of a discovery violation is whether thetrial court abused its discretion. People v. Weaver, 92 Ill. 2d545, 559, 442 N.E.2d 255 (1982).

I

JPH asserts that the trial court erred in failing to findthat nurse Nwankwo's statement and the other nurses' specialreports were protected from disclosure by the attorney-clientprivilege. JPH further contends that the statements wereprepared by JPH employees for JPH and, therefore, fall under theinsurer-insured privilege encompassed by the attorney-clientprivilege. Alternatively, JPH also contends that, under thecontrol group analysis, Nwankwo's statement and the other nurses'special reports are privileged. Lastly, JPH argues that thecontent of the documents compels the conclusion that they areprivileged.

Rounds responds that the trial court correctly ruled incompelling the production of the documents, where JPH failed toestablish that the documents were cloaked by the attorney-clientprivilege. Rounds' maintains that the requisite facts toestablish attorney-client privilege were not alleged by JPH; theclaim of privilege fails under the control group analysis; andthe insurer-insured privilege encompassed by the privilege doesnot apply to the documents prepared by the nursing staff simplybecause JPH is self-insured.

Illinois Supreme Court Rule 201(b)(2) provides, in pertinentpart:

"All matters that are privileged against disclosure onthe trial, including privileged communications between aparty or his agent and the attorney for the party, areprivileged against disclosure through any discoveryprocedure. Material prepared by or for a party inpreparation for trial is subject to discovery only if itdoes not contain or disclose the theories, mentalimpressions, or litigation plans of the party's attorney." 166 Ill. 2d R. 201(b)(2).

The attorney-client privilege exists for the purpose ofencouraging and promoting the full and frank consultation betweena client and his or her legal advisor by removing the fear ofcompelled disclosure of information. Consolidation Coal Co. v.Bucyrus-Erie Co., 89 Ill. 2d 103, 117-18, 432 N.E.2d 250 (1982). The party claiming the attorney-client privilege bears the burdenof presenting factual evidence which establishes the privilege. Cox v. Yellow Cab Co., 61 Ill. 2d 416, 419-20, 337 N.E.2d 15(1975). To be entitled to the protection of the attorney-clientprivilege, a claimant must show that the statement originated inconfidence that it would not be disclosed, was made to anattorney acting in his legal capacity for the purpose of securinglegal advice or services, and remained confidential. Hyams v.Evanston Hospital, 225 Ill. App. 3d 253, 257-58, 587 N.E.2d 1127(1992).

In the instant case, nurse Nwankwo's undated, unnotarizedaffidavit states:

"1. I was a registered nurse on duty at Jackson ParkHospital on May 28, 1996. I provided certain care andtreatment to Plaintiff, Kenya Rounds. After learning theoutcome of the delivery of a stillborn infant by Ms. Roundsat St. Bernard Hospital, I believed that this matter wouldlikely result in litigation. Accordingly, I prepared andhad notarized a document reflecting my involvement in thecare and treatment of Kenya Rounds.

2. I prepared the document in question in anticipation oflitigation so that, once suit was filed, I would be able toprovide this document as a communication to those attorneysassigned to represent me and/or Jackson Park Hospital."

Despite this affidavit, JPH has not presented any facts thatwould indicate to this court that the report was anything morethan the result of a mere prediction by nurse Nwankwo. Therecord does not indicate to this court that the report created byNwankwo originated in confidence, that it would not be disclosed,was made to an attorney for legal advice or services, or remainedconfidential for those purposes.

JPH relies on Buckman v. Columbus-Cabrini Medical Center,272 Ill. App. 3d 1060, 1067, 651 N.E.2d 767 (1995). That case isdistinguishable from the instant case. In Buckman, the hospitalappealed from orders entered by the trial requiring production ofmemoranda arising out of meetings between an attorney and a nursewho was employed by the hospital on a part-time basis and who wassubpoenaed by plaintiff. In that case, the record revealed thatwhen the nurse was subpoenaed for a deposition in connection withthe litigation, she went to her employer which, in turn, directedher to the contemnor-appellant. Buckman, 272 Ill. App. 3d at1066. She subsequently met with contemnor-appellant, who laterappeared on her behalf at her deposition. Buckman, 272 Ill. App.3d at 1066. Plaintiff filed a motion to compel the hospital toproduce those interview notes reasoning that the nurse was not aparty to the litigation and not a member of the control group. Buckman, 272 Ill. App. 3d at 1062. The hospital responded thatsuch notes were relevant communications made while the nurse wassecuring legal advice. Buckman, 272 Ill. App. 3d at 1063. Thehospital also maintained that, as a self-insurer, it was dutybound to defend any lawsuit against the nurse and that theprivilege extended to communications between the insured and theinsurer. Buckman, 272 Ill. App. 3d at 1062. The interview notesand a list of those documents for which the privilege was claimedwere submitted to the trial court for an in camera inspection. Buckman, 272 Ill. App. 3d at 1063. The trial court held that thenotes were not privileged communications and ordered theirproduction. Buckman, 272 Ill. App. 3d at 1063. The attorneyrefused to produce the notes and the court found the attorney incontempt for refusing to comply with the discovery order. Buckman, 272 Ill. App. 3d at 1063-64.

The issues presented for review in Buckman were whether thetrial court erred in granting plaintiff's motion to compel theproduction of interview notes and whether the contempt findingshould be vacated. Buckman, 272 Ill. App. 3d at 1061. Theappellate court answered in the affirmative and directed thetrial court to vacate the contempt order. Buckman, 272 Ill. App.3d at 1066-67. In Buckman, the record established the existenceof an attorney-client relationship between contemnor-appellantand the nurse when the communications were made. Buckman, 272Ill. App. 3d at 1066. The appellate court noted, "Thesecircumstances establish that [the nurse] received legal adviceand services. As such, we conclude that the trial court erred indetermining that the relevant communications between contemnor-appellant and [the nurse] are not protected by the attorney-client privilege." Buckman, 272 Ill. App. 3d at 1066.

In the instant case, however, there is no indication fromthe record that the documents were created subsequent to thelawsuit or at the direction of an attorney. In fact, the reportsat issue were created approximately at the time of decedent'sdeath as "special reports" normally used for "unusual" events. Records prepared in anticipation of litigation are not records"made in the regular course of business." Kelly v. HCI HeinzConstruction Co., 282 Ill. App. 3d 36, 41, 668 N.E.2d 596 (1996). There had not been an attorney-client relationship created priorto the creation of the reports.

JPH also relies on People v. Ryan, 30 Ill. 2d 456, 197N.E.2d 15 (1964), and Buckman to support its contention that thedocuments fall under the cloak of attorney-client privilegebecause JPH is self-insured. In Ryan, the Illinois Supreme Courtheld that the statement given by the insured, which was taken byan insurance company investigator following an automobilecollision, retained its privileged character. Ryan, 30 Ill. 2dat 461. While the Buckman court did acknowledge the hospital'sargument that the attorney-client privilege applied tocommunications between the insured and the insurer, it did notreach this issue in the decision. However, because JPH failed toraise this argument prior to this appeal, it is deemed waived andthis court will not address it. See People v. Del Percio, 105Ill. 2d 372, 380, 475 N.E.2d 528 (1985).

JPH also contends that Nwankwo was a part of the controlgroup managing Rounds' care and is therefore protected by theprivilege. JPH, again, relies on Buckman. Under the controlgroup analysis, the only communications that are ordinarily heldprivileged under this test are those made by top management whohave the ability to make a final decision, rather than thoseemployees whose positions are merely advisory. ConsolidationCoal Co., 89 Ill. 2d at 120. The test focuses on the status ofthe employee within the hierarchy of the corporation. Consolidation Coal Co., 89 Ill. 2d at 114. An employee'scommunications receive the protection of the attorney-clientprivilege when the claimant demonstrates that: (1) the employeeis in an advisory role to top management, such that the topmanagement would normally not make a decision in the employee'sparticular area of expertise without the employee's advice; and(2) that opinion does in fact form the basis of the finaldecision by those with actual authority. Archer Daniels MidlandCo. v. Koppers Co., 138 Ill. App. 3d 276, 279, 485 N.E.2d 1301(1985).

In the instant case, JPH has not demonstrated that Nwankwoor the other nurses had advisory roles to top management and thattheir opinions did in fact form the basis of the final decisionby those with actual authority. "[T]he concern is not on whatwas said, but on who said what." Hyams, 225 Ill. App. 3d at 258.

JPH further contends that whether the privilege appliesbears on the content of the documents. JPH maintains that, "onthe face of these documents, then, they are privileged and havethe intent of attorney-client communications." The documentscontain primarily factual statements relating to Rounds' medicalcondition on May 28, 1996, and the events surrounding hertreatment while at JPH. If this court would allow documentsmerely labeled as a "special reports" to fall under the umbrellaof documents prepared in anticipation of litigation, it wouldpotentially "insulate so much material from the truth-seekingprocess" that justice would no longer be served. ConsolidationCoal Co., 89 Ill. 2d at 118.

JPH next contends that it should have been given theopportunity to amend its privilege log. We hold that, whileSupreme Court Rule 201(n) requires that the log describe "thenature of the documents *** not produced or disclosed" and "theexact privilege which is being claimed," the burden was on JPH toestablish why the privilege was properly invoked. 166 Ill. 2d R.201(n). Knowing that the trial judge denied the submission ofbriefs on these issues, JPH should have used the log or even itspetition to reconsider as its opportunity to demonstrate itsfactual considerations for invoking the attorney-clientprivilege.

Therefore, the trial court's order to compel production ofcertain documents is affirmed and JPH's request to amend theprivilege log is denied.

II

JPH's final major contention is that the trial court'scontempt order should be vacated because JPH's failure to complywith the court's discovery order was made in good faith and wasnot contemptuous of the trial court's authority. Rounds respondsthat the trial court ruled correctly in finding defendant incontempt of court and imposing a fine for JPH's refusal to turnover the documents at issue.

In Illinois, requesting the trial court to enter a contemptorder is a proper procedure to test, on appeal, a trial court'sdiscovery order. Buckman, 272 Ill. App. 3d at 1067. JPH'srefusal to produce was made in good faith and was notcontemptuous of the court's authority. See Chicago Trust Co. v.Cook County Hospital, 298 Ill. App. 3d 396, 410, 698 N.E.2d 641(1998). Accordingly, we direct the trial court to vacate thecontempt order.

For the foregoing reasons, we hold that the trial court'sorder to compel production of certain documents is affirmed, andthe trial court's order finding JPH in contempt is vacated.

Affirmed; contempt order vacated.

CAHILL, P.J. and McBRIDE, J., concur.