{ "id": 5120356, "name": "GZIME MENOSKI, a Minor, by Neim Menoski et al., Her Parents and Next Friends, Plaintiffs-Appellees, v. S.K. SHIH et al., Defendants (Michael F. Henrick, Contemnor-Appellant)", "name_abbreviation": "Menoski v. Shih", "decision_date": "1993-02-24", "docket_number": "No. 2-92-0264", "first_page": "117", "last_page": "124", "citations": [ { "type": "official", "cite": "242 Ill. App. 3d 117" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "100 Ill. App. 3d 1029", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5495242 ], "weight": 2, "pin_cites": [ { "page": "1032" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/1029-01" ] }, { "cite": "108 S. Ct. 2044", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "100 L. Ed. 2d 628", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "486 U.S. 1047", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6351652, 6351197, 6351359 ], "opinion_index": 0, "case_paths": [ "/us/486/1047-03", "/us/486/1047-01", "/us/486/1047-02" ] }, { "cite": "121 Ill. 2d 337", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201402 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "347" }, { "page": "348" }, { "page": "348-49" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0337-01" ] }, { "cite": "157 Ill. 2d 29", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778592 ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0029-01" ] }, { "cite": "149 Ill. 2d 190", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599792 ], "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0190-01" ] }, { "cite": "109 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126692 ], "year": 1988, "pin_cites": [ { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0357-01" ] }, { "cite": "91 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3148432 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0310-01" ] }, { "cite": "197 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2481856 ], "weight": 4, "pin_cites": [ { "page": "127" }, { "page": "127" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0120-01" ] }, { "cite": "176 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3588145 ], "weight": 2, "pin_cites": [ { "page": "743" }, { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0737-01" ] }, { "cite": "108 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130482 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "269" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0265-01" ] }, { "cite": "135 Ill. App. 3d 92", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599934 ], "weight": 2, "pin_cites": [ { "page": "95" }, { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0092-01" ] }, { "cite": "102 Ill. 2d 468", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156336 ], "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0468-01" ] }, { "cite": "176 Ill. App. 3d 652", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3589719 ], "weight": 2, "pin_cites": [ { "page": "655" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0652-01" ] }, { "cite": "74 Ill. App. 3d 214", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3266591 ], "year": 1988, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0214-01" ] } ], "analysis": { "cardinality": 739, "char_count": 15079, "ocr_confidence": 0.784, "pagerank": { "raw": 1.2090244729630416e-07, "percentile": 0.5954408924999103 }, "sha256": "71776732654f922a7b908d14e6943d7f1c53ab79d272d72a28caeedca0839249", "simhash": "1:2bac742e5d2f5cba", "word_count": 2453 }, "last_updated": "2023-07-14T16:35:07.830210+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GZIME MENOSKI, a Minor, by Neim Menoski et al., Her Parents and Next Friends, Plaintiffs-Appellees, v. S.K. SHIH et al., Defendants (Michael F. Henrick, Contemnor-Appellant)." ], "opinions": [ { "text": "JUSTICE QUETSCH\ndelivered the opinion of the court:\nPlaintiff, Gzime Menoski, by her parents and next friends, Neim Menoski and Fatime Menoski, sued defendants S.K. Shih, M.D., Ltd., Shien-Keng Shih, M.D. (collectively, Shih), Victory Memorial Hospital (Victory) and Maryln Zelenz for medical malpractice. In this appeal, Victory\u2019s attorney, Michael Henrick, appeals the circuit court\u2019s order finding him in contempt of court for refusing to produce for an in camera inspection Victory\u2019s complete credentials file on Dr. Shih. Contemnor contends that the file is privileged pursuant to the Medical Studies Act (Act) (111. Rev. Stat. 1991, ch. 110, par. 8 \u2014 2101 et seq.).\nPlaintiff filed a medical malpractice complaint against Shih, his corporation, Victory, and a nurse. Count II of the complaint alleged that the hospital was negligent in, inter alia, granting obstetrical privileges to Shih.\nDuring discovery, plaintiff served defendant with a notice to produce which included a request for:\n\u201c7. A copy of all materials ever submitted by Dr. Shih or obtained by you that in whole or in part were relied upon in determining his obstetrical privileges in 1982.\u201d (Emphasis in original.)\nVictory failed to produce these documents, and plaintiff filed a motion to compel production of \u201call documents related to hospital privileges of Dr. Shih.\u201d\nFollowing a hearing on plaintiff\u2019s motion on December 5, 1991, the court ordered production of various documents, including (1) Shih\u2019s educational transcripts, (2) his applications for appointment to Victory\u2019s staff and for specific privileges, (3) \u201cmaterials regarding initial privileges granted to Dr. Shih and any modifications, restrictions, revocations, letters of resignation or withdrawal which preceded or were subsequent to peer-review process,\u201d and (4) written criteria for each category of privileges granted to Shih.\nIn response, Victory produced Shih\u2019s privilege card and his application for staff privileges with references deleted. Victory stated that it was not in possession of any educational transcripts. It stated that it was in possession of a letter of resignation from Shih, which was based on the cost of insurance and not peer review. The hospital objected to production of the letter on the ground of relevance, but stated that it would produce it for an in camera inspection if ordered to do so. Victory\u2019s response also stated:\n\u201cThe credentials file contains additional materials which it is the position of this defendant are protected under Ch. 110, \u00a78 \u2014 2101 in that they are used \u2018in the course of quality control or of medical studies for the purposes of reducing mortality or morbidity or for improving patient care\u2019 and to produce said materials, even in an in camera inspection,- is violative of Ch. 110, \u00a78 \u2014 2105 and would constitute \u2018a Class A misdemeanor.\u2019 \u201d\nOn January 14, 1992, the court ordered Victory to produce \u201cthe entire credentials file of Dr. Shih\u201d for an in camera inspection. When Victory failed to do so, plaintiff filed a petition for a rule to show cause why Victory\u2019s attorney should not be held in contempt. On February 5, the court held Henrick in contempt and fined him $1 per day until the materials were produced. Contemnor filed a timely notice of appeal.\nAs a preliminary matter, we address plaintiff\u2019s contention that we have no jurisdiction to hear this appeal. Plaintiff contends that the order finding attorney Henrick in contempt was not a final order and contained no finding pursuant to Supreme Court Rule 304(a) that would make it immediately appealable. (See 134 111. 2d R. 304(a).) Plaintiff suggests that we apply Rule 304(a) to orders of contempt. It is well established, however, that a contempt order is final and appealable. (Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 216; see also Flannery v. Lin (1988), 176 Ill. App. 3d 652, 655.) We decline plaintiff\u2019s invitation to overrule this long line of precedent.\nOn the merits, contemnor states that the issue on appeal is whether the documents the trial court ordered produced are privileged under the Medical Studies Act. We cannot squarely address this issue, however, since the documents have never been produced even to the trial court in camera and are not contained in the record. Rather, we perceive the issue to be whether the trial court abused its discretion in ordering the documents to be produced for an in camera inspection.\nVictory and contemnor claim that Shih\u2019s credentials file is privileged and confidential pursuant to the Medical Studies Act. Section 8 \u2014 2101 of the Act provides as follows:\n\u201cAll information, interviews, reports, statements, memo-randa 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 and Executive Committees, (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, 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, except that in any hospital proceeding to decide upon a physician\u2019s staff privileges, or in any judicial review thereof, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.\u201d 111. Rev. Stat. 1991, ch. 110, par. 8-2101.\nThe purpose of the Act is to facilitate professional self-evaluation by members of the medical profession. It is based on the premise that absent such a privilege physicians would be reluctant to sit on peer-review committees and engage in frank evaluation of their colleagues. Jenkins v. Wu (1984), 102 Ill. 2d 468, 480.\nNot every document which has some connection to a peer-review committee is subject to the privilege. (Gleason v. St. Elizabeth Medical Center (1985), 135 Ill. App. 3d 92, 95.) Documents such as applications for privileges and educational transcripts are generated prior to the peer-review process and are therefore not privileged. (Richter v. Diamond (1985), 108 Ill. 2d 265, 269; Willing v. St. Joseph Hospital (1988), 176 Ill. App. 3d 737, 743.) Similarly, the privilege does not apply to actions taken as a result of the process. (Richter, 108 Ill. 2d at 269; Gleason, 135 Ill. App. 3d at 95.) As a result, questions frequently arise concerning whether particular documents are covered by the privilege.\nContemnor contends that he has produced all discoverable material and that additional documents in Victory\u2019s possession are privileged pursuant to the Act. He further maintains that the privilege provided by the Act is absolute, so that he need not produce the documents even for an in camera inspection. We disagree.\nThis court recently rejected a similar contention in Ekstrom v. Temple (1990), 197 Ill. App. 3d 120. We noted that a party claiming a privilege has the burden of establishing that the privilege applies. A party\u2019s \u201cmere assertion that the matter is confidential and privileged will not suffice.\u201d (197 Ill. App. 3d at 127.) In that case, as in the instant case, the contemners merely objected that the documents were privileged. We held that they should have supported their claim of privilege either by producing the materials for an in camera inspection or by submitting affidavits setting forth facts sufficient to establish the applicability of the privilege to the particular documents. 197 Ill. App. 3d at 127.\nWe agree with the statement in Walker v. Alton Memorial Hospital Association (1980), 91 Ill. App. 3d 310, 313:\n\u201cIt is a rule of law too elementary to require citation that the court and no one else \u2014 certainly not the parties \u2014 determines whether that which is offered into evidence is properly admissible. In order to rule upon that question, the court must have an opportunity to acquaint itself with the nature of the material offered.\u201d\nThe same consideration applies to the question of whether a given document is discoverable.\nThe applicability of a discovery privilege is a matter of law for the court to determine, but the question of whether specific materials are part of a medical study is a factual question within that legal determination. Niven v. Siqueira (1985), 109 Ill. 2d 357, 368; Willing v. St. Joseph Hospital (1988), 176 Ill. App. 3d 737, 744.\nTo accept contemnor\u2019s contention would leave the determination of whether a given document was required to be produced to the unfettered discretion of the party possessing it or its attorneys. The court would have no opportunity to review the party\u2019s assertion of the privilege. While we do not question the good faith of the instant parties, such a rule has obvious potential for abuse.\nOur conclusion is not altered by the fact that section 2105 of the Act makes the unauthorized disclosure of the privileged information a Class A misdemeanor. (111. Rev. Stat. 1991, ch. 110, .par. 8 \u2014 2105.) In construing a statute, courts will presume that the legislature did not intend absurdity, inconvenience or injustice. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 195.) To hold that a court could order a party to produce a document and that a branch of the same court could find that party guilty of a criminal offense for obeying that order would indeed be absurd. We hold that producing documents pursuant to a valid court order is not an unauthorized disclosure which would render the complying party guilty of a misdemeanor. The supreme court recently reviewed an order requiring the disclosure of certain documents which had been produced for an in camera inspection. (Roach v. Springfield Clinic (1992), 157 Ill. 2d 29.) While the court reversed the order denying disclosure, it did not suggest that the in camera review was improper, or that the defendant\u2019s attorney should be charged with a crime for complying with the trial court\u2019s order.\nContemnor cites People v. Foggy (1988), 121 Ill. 2d 337, cert. denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 628, 108 S. Ct. 2044, for the proposition that he cannot be compelled to produce the documents for an in camera inspection. In Foggy, the supreme court interpreted the scope of the privilege accorded to records of counselling provided to a rape victim by a rape crisis center. (See 111. Rev. Stat. 1987, ch. 110, par. 8 \u2014 802.1.) The court held that defendant had no constitutional right to have the court conduct an in camera inspection of such material. (Foggy, 121 Ill. 2d at 347.) The court noted that the legislature had deleted from the statute a provision which specifically called for an in camera inspection procedure (121 Ill. 2d at 348) and that the role of rape counsellors is not to investigate the occurrence (121 Ill. 2d at 348-49). The court apparently concluded that any information in the possession of the counsellors was unlikely to be relevant to the criminal prosecution of defendant. The court noted that defendant\u2019s request for the records was merely general and did not allege that material useful to the defense was likely to be found. 121 Ill. 2d at 347.\nFoggy is distinguishable from the instant case. In this case, plaintiff\u2019s request was not merely general, but was specifically directed to material which is quite likely to be relevant to the issue of whether the hospital was negligent in granting obstetric privileges to Dr. Shih. Moreover, unlike the statute at issue in that case, the legislature has not specifically deleted an in camera review provision. Rather, we presume the legislature is aware of previous decisions such as Ekstrom requiring the submission of documents for an in camera inspection, and the legislature has not seen fit to amend the statute. Finally, we note that the documents at issue in Foggy were in the possession of a neutral third party, and there was no question that the documents were subject to the privilege. Thus, there was no potential for abuse from self-determination of the privilege by a party to the litigation.\nContemnor also cites Mennes v. South Chicago Community Hospital (1981), 100 Ill. App. 3d 1029, where the court refused to order an in camera inspection to determine whether certain requested documents were privileged. The court held that such an inspection was unnecessary because the very wording of the request to produce established \u201con its face\u201d that the material sought was privileged. 100 Ill. App. 3d at 1032.\nWe are unable to say that the hospital\u2019s \u201ccredentials file\u201d on its face contains privileged material. Victory has already produced some documents, apparently from Shih\u2019s credentials file, thus essentially conceding that some material demanded by the court\u2019s January 14 order was not privileged.. We cannot say that the phrase \u201ccredentials file\u201d by itself necessarily implies that all the material therein is privileged. The determination of whether a given document within the file is subject to the privilege should be made by the trial court, and not by the party in possession of the documents. Ekstrom, 197 Ill. App. 3d at 127.\nContemnor\u2019s final contention in this regard is that his signature on the production response establishes that all matters contained therein are true and that therefore an in camera inspection is unnecessary. Rule 137 provides that an attorney\u2019s signature on a document signifies that he has conducted a reasonable investigation of the facts and law contained therein and believes that it is well-grounded in fact. It does not establish that the facts contained therein are in fact true. (134 Ill. 2d R. 137.) To accept this argument would obviate the need for any legal proceedings whatsoever, since an attorney\u2019s signature on a complaint would establish the truth of the matters asserted, dispensing with the need for a finder of fact.\nPlaintiff requests that we review and affirm several of the trial court\u2019s rulings requiring the production of specific documents. These rulings are contained in the court\u2019s December 5 order, which is not before this court. Only the order of contempt, and by implication the January 14 order on which it is based, is the subject of this appeal. (See Flannery, 176 Ill. App. 3d at 655.) We have no jurisdiction to review additional interlocutory orders of the trial court. See 134 Ill. 2d R. 301.\nFor the foregoing reasons, the order of the circuit court holding contemnor in contempt of court is affirmed.\nAffirmed.\nWOODWARD and GEIGER, JJ., concur.", "type": "majority", "author": "JUSTICE QUETSCH" } ], "attorneys": [ "D. Kendall Griffith and Nancy G. Lischer, both of Hinshaw & Culbertson, of Chicago, for appellant.", "Patrick A. Salvi and Megan E. Chadwick, both of Law Offices of Patrick A. Salvi, of Waukegan, for appellees." ], "corrections": "", "head_matter": "GZIME MENOSKI, a Minor, by Neim Menoski et al., Her Parents and Next Friends, Plaintiffs-Appellees, v. S.K. SHIH et al., Defendants (Michael F. Henrick, Contemnor-Appellant).\nSecond District\nNo. 2 \u2014 92\u20140264\nOpinion filed February 24, 1993.\nRehearing denied April 14, 1993.\nD. Kendall Griffith and Nancy G. Lischer, both of Hinshaw & Culbertson, of Chicago, for appellant.\nPatrick A. Salvi and Megan E. Chadwick, both of Law Offices of Patrick A. Salvi, of Waukegan, for appellees." }, "file_name": "0117-01", "first_page_order": 135, "last_page_order": 142 }