Green v. Lake Forest Hospital

Case Date: 11/27/2002
Court: 2nd District Appellate
Docket No: 2-01-0934 Rel

No. 2--01--0934


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


GREGORY K. GREEN, as Independent ) Appeal from the Circuit
Ex'r of the Estate of Christine ) Court of Lake County.
L. Green, Deceased, )
)
                   Plaintiff-Appellee, )
)
v. ) No. 99--L--669
)
LAKE FOREST HOSPITAL; DEERPATH )
MEDICAL ASSOCIATES, INC.; )
KENNETH HAYES, Indiv.; and )
ALEXANDRA FRENKEL, Indiv., )
)
                  Defendants-Appellants )
)
(Northwest Community Hospital; )
Emcare of Illinois, S.C.; and ) Honorable
Lawrence Miller, Indiv., ) Barbara C. Gilleran-Johnson,
Defendants). ) Judge, Presiding.

PRESIDING JUSTICE HUTCHINSON delivered the opinion of thecourt:

Plaintiff, Gregory Green, as independent executor of theestate of Christine Green, deceased, filed a survival and wrongfuldeath action alleging medical malpractice against defendants LakeForest Hospital (Lake Forest), Deerpath Medical Associates, KennethHayes, M.D., and Alexandra Frenkel, R.N. During the course ofdiscovery, the trial court ordered Lake Forest to disclose writtenforms suspending and terminating nurse Frenkel's employment withthe hospital. Lake Forest refused to comply with this order onrelevance grounds and invoked the statutory privilege provided inthat part of the Code of Civil Procedure that constitutes the medical studies act (the Act) (735 ILCS 5/8--2101 through 2105(West 2000)). The trial court held Lake Forest in contempt forrefusing to comply with its disclosure order and fined it $1 perday until the matter was resolved on appeal or until the documentswere produced. We vacate the trial court's contempt order andremand the case for further proceedings.

Plaintiff's complaint sought the recovery of damages fromdefendants resulting from their alleged medical negligence incausing decedent's death. The complaint alleged that decedent wasadmitted to Lake Forest on December 15, 1998, complaining ofpneumonia. Plaintiff's complaint alleged that decedent died onDecember 16, 1998, as a result of the improper administration of aprecipitating intravenous solution. As to Lake Forest and nurseFrenkel, the plaintiff alleged that these defendants failed tomonitor decedent's medical condition, to advise Dr. Hayes ofdecedent's physical condition and important drug interactions, andto prevent the administration of the precipitating intravenoussolution.

At her deposition, nurse Frenkel testified that she wasdisciplined after the decedent's death and that she was suspendedfor a period of several days. Nurse Frenkel voluntarily terminatedher employment with Lake Forest 15 months after the decedent'sdeath. Following nurse Frenkel's deposition, plaintiff filed asupplemental notice to produce to Lake Forest requesting a copy ofnurse Frenkel's personnel file. Lake Forest objected to theproduction of certain documents in the file and provided plaintiffwith a privilege log describing the documents and setting forth thebasis of its objections to disclosure. Of relevance to thisappeal, Lake Forest refused to produce copies of nurse Frenkel'ssuspension and termination forms.

Plaintiff moved to compel production of nurse Frenkel'ssuspension and termination forms. In response to the motion, LakeForest argued that the suspension form was privileged under theAct. Lake Forest further argued that the termination formcontained no information that was relevant to any issue in thecase. After reviewing the documents in camera, the trial courtruled that the suspension and termination forms were not privilegedand ordered Lake Forest to produce the records. After Lake Forestrefused to comply with its production order, the trial courtentered an order finding Lake Forest in contempt and assessingsanctions of $1 per day until the matter was resolved on appeal oruntil Lake Forest produced the documents to plaintiff. Defendantsthen filed this timely appeal.

As they did before the trial court, defendants contend onappeal that the suspension form is privileged under the provisionsof the Act. Defendants argue that the suspension form isprivileged, as it documents the disciplinary and corrective stepsthat Lake Forest took to improve patient care. As to thetermination form, although defendants do not argue that thedocument is privileged under the Act, they assert that it is tooremote in time from the incident in question and is irrelevant toany issue in the case.

We first consider whether the suspension form is privilegedunder the Act. Section 8--2101 of the Act provides, in relevantpart, as follows:

"All information, interviews, reports, statements,memoranda, recommendations, letters of reference or otherthird party confidential assessments of a health carepractitioner's professional competence, or other data of ***committees of licensed or accredited hospitals or theirmedical staffs ***, used in the course of internal qualitycontrol or of medical study for the purpose of reducingmorbidity or mortality, or for improving patient care orincreasing organ and tissue donation, shall be privileged,strictly confidential and shall be used only for medicalresearch, increasing organ and tissue donation, the evaluationand improvement of quality care, or granting, limiting orrevoking staff privileges or agreements for services ***." 735 ILCS 5/8--2101 (West 2000).

Section 8--2102 of the Act further provides that such privilegedmaterials "shall not be admissible as evidence, nor discoverable inany action of any kind in any court or before any tribunal, board,agency or person." 735 ILCS 5/8--2102 (West 2000). The burden ofestablishing the applicability of this statutory privilege is uponthe party seeking to invoke the privilege. Roach v. SpringfieldClinic, 157 Ill. 2d 29, 41 (1993). Whether the privilege appliesis a question of law, and our standard of review is de novo. Nivenv. Siqueira, 109 Ill. 2d 357, 368 (1985). However, the question ofwhether specific materials are part of a medical study is a factualquestion within this legal determination. Chicago Trust Co. v.Cook County Hospital, 298 Ill. App. 3d 396, 401 (1998).

The purpose of the Act is to ensure that the members of themedical profession will effectively engage in self-evaluation oftheir peers in the interest of advancing the quality of healthcare. Roach, 157 Ill. 2d at 40. The Act is premised on the beliefthat, absent a peer-review privilege, physicians would be reluctantto sit on peer-review committees and engage in candid evaluation oftheir colleagues. Roach, 157 Ill. 2d at 40. Therefore, the Acthas been interpreted to protect against disclosure of themechanisms of the peer-review process, including informationgathering and deliberation leading to the ultimate decisionrendered by a hospital peer-review committee. Chicago Trust Co.,298 Ill. App. 3d at 402. Documents generated specifically for theuse of a peer-review committee receive protection under the Act. Chicago Trust, 298 Ill. App. 3d at 402. However, the Act does notprotect against disclosure of the peer-review committee'srecommendations after completion of the peer-review process. Chicago Trust, 298 Ill. App. 3d at 405.

Here, Lake Forest has failed to present any evidence that thesuspension form in question was a document generated for the use ofa peer-review committee. This one-page document was part of nurseFrenkel's employment file. The suspension form does notspecifically reference the event in question or make reference toany hospital investigating committee. The suspension form notifiesnurse Frenkel that she has been placed on a three-day suspensionwithout pay. As the form does not appear to have been generatedfor use by a peer-review committee, we do not believe that itsdisclosure would improperly intrude upon any confidential peer-review process.

Lake Forest argues that the suspension form is privilegedbecause it documents the discipline administered to nurse Frenkelas a result of her role in this incident. Lake Forest asserts thatapplication of the privilege to the suspension form is thereforeconsistent with the Act's purpose to "encourage candid andvoluntary studies and programs used to improve hospital conditionsand patient care or to reduce the rates of death and disease." Niven, 109 Ill. 2d at 366. We reject this reasoning for tworeasons. First, as already noted, the suspension form does notindicate that Frenkel's suspension was recommended by a peer-reviewcommittee. Unlike investigations performed by hospital committees,internal investigations performed by the hospital's administrationare not privileged. Grandi v. Shah, 261 Ill. App. 3d 551, 557(1994); Marsh v. Lake Forest Hospital, 166 Ill. App. 3d 70, 76(1988). Second, even assuming that her suspension was recommendedby a peer-review committee, such a finding would not be protectedfrom disclosure because the recommendations and findings of a peer-review committee are not privileged under the Act. See ChicagoTrust, 298 Ill. App. 3d at 405. The Act only protects theinvestigative and deliberative materials generated by a hospitalcommittee in formulating its recommendations. Roach, 157 Ill. 2dat 39-41.

Lake Forest's primary authority, Pritchard v. SwedishAmericanHospital, 191 Ill. App. 3d 388 (1989), illustrates the limits ofthe statutory privilege. In that case, the plaintiff submittedinterrogatories to the defendant hospital, seeking information todetermine whether the defendant doctor's privileges had beensuspended or restricted, the dates that the suspension orrestrictions were imposed, the specific nature of the restrictions,what methods the hospital utilized to determine whether the doctorwas fit for reappointment, and what measures the hospital undertookto supervise the doctor when he was admitting and treatingpatients. Pritchard, 191 Ill. App. 3d at 393-94. The reviewingcourt held that, although the plaintiff could not discover whatmethods the hospital utilized to determine the doctor's fitness,the plaintiff could discover whether the doctor had been suspendedor restricted and the nature of any such suspension or restriction. Pritchard, 191 Ill. App. 3d at 399. The court explained:

"Under the plain language of the Act, the restrictions imposedby a hospital on a particular physician's privileges topractice as a result of the internal review process arediscoverable [citations], but the nature and content of the[peer-review] process itself *** is privileged andconfidential." Pritchard, 191 Ill. App. 3d at 399.

Applying these principles to this case, it is clear that nurseFrenkel's suspension form is not privileged under the Act. Anydiscipline or restriction placed on nurse Frenkel by Lake Forest asa result of an internal review process is discoverable. SeePritchard, 191 Ill. App. 3d at 399. Because the form contains noinformation relating to the nature and content of any peer-reviewprocess, it falls outside the protections of the Act. SeePritchard, 191 Ill. App. 3d at 399. Accordingly, we agree with thetrial court that the document is not privileged under the Act.

We next turn to a consideration of the relevance of thetermination form. The form, which appears to be an internalbusiness record, indicates that nurse Frenkel resigned heremployment with Lake Forest on March 12, 1999, some 15 months afterthe decedent's death. The form indicates that nurse Frenkel lefther employment with Lake Forest for another opportunity. LakeForest contends that the form is irrelevant because the reason fornurse Frenkel's termination is not related to any of the issuesraised in the case.

Relevant evidence is defined as " 'evidence having anytendency to make the existence of any fact that is of consequenceto the determination of the action more probable or less probablethan it would be without the evidence.' " Spencer v. Wandolowski,264 Ill. App. 3d 611, 617 (1994), quoting Fed. R. Evid. 401. Evidence that is too remote in time from the issues involved in thecase is irrelevant. Spencer, 264 Ill. App. 3d at 618-19. Thedetermination whether evidence is relevant rests within the sounddiscretion of the trial court, and its decision will not beoverturned by a reviewing court absent an abuse of that discretion. O'Brien v. Hertl, 238 Ill. App. 3d 217, 223 (1992).

We believe that the contents of the termination form areirrelevant to any issue in this case. The fact that nurse Frenkelresigned from Lake Forest to take advantage of another employmentopportunity 15 months after the incident alleged in this lawsuit istoo remote to be relevant. See generally In re Estate of Kline,245 Ill. App. 3d 413, 433-34 (1993). The form contains noinformation indicating that nurse Frenkel's termination wasinvoluntary or was related to the incident alleged in the lawsuit. Accordingly, discovery of the form will not lead to any material oradmissible evidence. We therefore hold that the trial court abusedits discretion in ordering disclosure of the termination form.

As a final matter, we must address the trial court's contemptorder. Requesting the trial court to enter a contempt order is aproper procedure to seek immediate appeal of a trial court'sdiscovery order. Buckman v. Columbus-Cabrini Medical Center, 272Ill. App. 3d 1060, 1067 (1995). In this case, we find that LakeForest's decision not to produce the documents in question was madein good faith based upon sound legal arguments and was notcontemptuous of the trial court's authority. See Rounds v. JacksonPark Hospital & Medical Center, 319 Ill. App. 3d 280, 289 (2001). We, therefore, vacate the order finding Lake Forest in contempt andimposing the daily fine.

For the foregoing reasons, we hold that the trial courtproperly concluded that nurse Frenkel's suspension form was notprivileged under the Act; however, we hold that the trial courtabused its discretion in compelling disclosure of nurse Frenkel'stermination form because it lacked relevance to any issue in thecase. Accordingly, we vacate the trial court's contempt order andfine, and we remand the case for further proceedings.

Vacated and remanded.

GEIGER and BOWMAN, JJ., concur.