{ "id": 1073658, "name": "CHICAGO TRUST COMPANY, as Guardian of the Estate of Donald Macon, a Disabled Person, Plaintiff-Appellee, v. COOK COUNTY HOSPITAL et al., Defendants (The Office of the State's Attorney of Cook County, Contemnor-Appellant)", "name_abbreviation": "Chicago Trust Co. v. Cook County Hospital", "decision_date": "1998-07-30", "docket_number": "No. 1-97-3233", "first_page": "396", "last_page": "410", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 396" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "686 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725106 ], "year": 1997, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0745-01" ] }, { "cite": "628 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "257 Ill. App. 3d 205", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2892143 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "212" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0205-01" ] }, { "cite": "559 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592803 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "235" }, { "page": "236-37" }, { "page": "235-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0232-01" ] }, { "cite": "587 N.E.2d 1127", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 253", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5243757 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "257-58" }, { "page": "253" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0253-01" ] }, { "cite": "651 N.E.2d 767", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 1060", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 251898 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "1066" }, { "page": "1066" }, { "page": "1066" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/1060-01" ] }, { "cite": "197 N.E.2d 15", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "30 Ill. 2d 456", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827290 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "461" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0456-01" ] }, { "cite": "280 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "51 Ill. 2d 46", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5390234 ], "year": 1972, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0046-01" ] }, { "cite": "651 N.E.2d 696", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 991", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252118 ], "year": 1995, "pin_cites": [ { "page": "996" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0991-01" ] }, { "cite": "297 Ill. App. 3d 240", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910226 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0240-01" ] }, { "cite": "481 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 92", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599934 ], "year": 1985, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0092-01" ] }, { "cite": "573 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "\"The reports are the same kind of incident, reports which any business might have\"" } ], "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5292855 ], "year": 1991, "pin_cites": [ { "page": "68", "parenthetical": "\"The reports are the same kind of incident, reports which any business might have\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0065-01" ] }, { "cite": "531 N.E.2d 403", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 652", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3589719 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "658" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0652-01" ] }, { "cite": "519 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5072904 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "76" }, { "page": "76" }, { "page": "76" }, { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0070-01" ] }, { "cite": "629 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "257 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2891098 ], "year": 1994, "pin_cites": [ { "page": "976" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0969-01" ] }, { "cite": "633 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 551", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5372431 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "556" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0551-01" ] }, { "cite": "522 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "\"initiated and used by a committee\"" } ], "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 842", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473099 ], "weight": 6, "year": 1988, "pin_cites": [ { "page": "846", "parenthetical": "\"initiated and used by a committee\"" }, { "page": "846" }, { "page": "847" }, { "page": "847" }, { "page": "847" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0842-01" ] }, { "cite": "689 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "\"generated during the course of the peer-review process\"" } ], "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 886", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847562 ], "year": 1997, "pin_cites": [ { "page": "890", "parenthetical": "\"generated during the course of the peer-review process\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0886-01" ] }, { "cite": "649 N.E.2d 484", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 382", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 251645 ], "year": 1995, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0382-01" ] }, { "cite": "509 N.E.2d 547", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 768", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3504959 ], "year": 1987, "pin_cites": [ { "page": "779-80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0768-01" ] }, { "cite": "547 N.E.2d 1279", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 388", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2513529 ], "year": 1989, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0388-01" ] }, { "cite": "571 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600885 ], "year": 1991, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0779-01" ] }, { "cite": "633 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 41", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863290 ], "year": 1994, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0041-01" ] }, { "cite": "553 N.E.2d 424", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2481856 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "126" }, { "page": "129" }, { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0120-01" ] }, { "cite": "483 N.E.2d 1256", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "108 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130482 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "269" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0265-01" ] }, { "cite": "468 N.E.2d 1162", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "102 Ill. 2d 468", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156336 ], "year": 1984, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0468-01" ] }, { "cite": "612 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5120356 ], "year": 1993, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0117-01" ] }, { "cite": "531 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3588145 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "744" }, { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0737-01" ] }, { "cite": "487 N.E.2d 937", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "109 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126692 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "368" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0357-01" ] }, { "cite": "623 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "157 Ill. 2d 29", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778592 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "41" }, { "page": "40" }, { "page": "41" }, { "page": "41-42" }, { "page": "42" }, { "page": "41", "parenthetical": "\"earlier-acquired information\" furnished to peer-review committee is not cloaked by the Act's privilege" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0029-01" ] } ], "analysis": { "cardinality": 1267, "char_count": 32750, "ocr_confidence": 0.729, "pagerank": { "raw": 2.05577410602223e-07, "percentile": 0.7558904013322785 }, "sha256": "06ec46a6c952300e61f1e667b52d355134b7787f306f87d3f72037be955b9998", "simhash": "1:b7bb396c2f251ec4", "word_count": 5147 }, "last_updated": "2023-07-14T16:29:38.148323+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHICAGO TRUST COMPANY, as Guardian of the Estate of Donald Macon, a Disabled Person, Plaintiff-Appellee, v. COOK COUNTY HOSPITAL et al., Defendants (The Office of the State\u2019s Attorney of Cook County, Contemnor-Appellant)." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nIn this case we review Cook County Hospital\u2019s claims that certain of its documents are confidential and that the trial court should not have ordered the Hospital to produce them during discovery in a civil case.\nCook County Hospital (the Hospital) appeals the trial court\u2019s July 25, 1997, order. The court found the Hospital in contempt for refusing to produce certain documents requested in discovery by Chicago Trust Company, guardian of the estate of Donald Macon. The Hospital contends the Medical Studies Act (735 ILCS 5/8 \u2014 2101 et seq. (West 1992 & 1996)) protects against disclosure of all of these documents and that the attorney-client privilege prevents disclosure of two of them. We agree with the trial court that all the documents should be produced.\nFACTS\nDonald Macon (Macon) was admitted to Cook County Hospital on August 16, 1995, and placed on a ventilator. Two days later, Macon accidentally became disconnected from the ventilator. Deprived of oxygen, Macon lapsed into a coma and suffered brain damage. Macon is now a nonverbal, nonresponsive quadriplegic.\nChicago Trust Company (Chicago Trust) filed a medical malpractice/products liability complaint on behalf of Macon\u2019s estate against, inter alia, the Hospital. The complaint alleged the Hospital failed to provide adequately trained staff members and failed to operate the ventilator properly.\nDuring the course of discovery, Chicago Trust requested documents from the Hospital. The Hospital filed its objections to this request, along with a privilege log, which identified 28 documents withheld from production under the Medical Studies Act (see 735 ILCS 5/8 \u2014 2101 et seq. (West 1992 & 1996)) and the attorney-client privilege (see 134 111. 2d R. 201(b)(2)).\nOf these 28 documents, the trial court eventually ordered the Hospital to produce 13 of them. The Hospital later waived its privilege claims on 4 of these 13 documents. The parties dispute nine documents, two of which are duplicates.\nDocument 2 \u2014 dated August 18, 1995, and entitled \u201cSituational Report\u201d \u2014 was authored by Lisanna Jose, a respiratory therapist at the Hospital. This document describes Jose\u2019s conduct on the date of Macon\u2019s accident.\nDocument 4 \u2014 dated August 19, 1995, and entitled \u201cIncident Report\u201d \u2014 was authored by Coraz\u00f3n Allegre, a registered nurse at the Hospital, and an unidentified person named Maureen Moravitz. This document describes Allegre\u2019s conduct on the date of Macon\u2019s accident and orders the person completing it to \u201cRETURN TO DEPT. OF RISK MANAGEMENT.\u201d Macon\u2019s inpatient notes, written by Dr. Campos, state: \u201cAware of incident report and accident occurred last night.\u201d\nDocument 5/attachment 3 \u2014 dated September 5, 1995, and entitled \u201cMEMORANDUM RE: VENTILATOR CIRCUITS WITH IN-LINE NEBULIZERS\u201d \u2014 was authored by Dr. Phillip Bodenstab, the Hospital\u2019s medical director of respiratory care. This document, addressed to nine doctors and \u201cAll Department Chairpersons,\u201d notifies its recipients that ventilators may disconnect during certain procedures and advises preventative measures.\nDocument 5/attachment 4 \u2014 dated August 30, 1995, and entitled \u201cGUIDELINES WHEN USING PARALYTIC AGENTS FOR MECHANICAL VENTILATION\u201d \u2014 was authored by Dr. Corey Franklin, the Hospital\u2019s \u201cDirector of MICU.\u201d This document, addressed to physicians, nurses, respiratory therapists, and pharmacists, provides tips for patient care during ventilation.\nDocument 5/attachment 5 \u2014 dated September 6, 1995, \u2014 was authored by Dr. Franklin. This document, addressed \u201cTo: MICU Attendings,\u201d S. Karno, and B. Reilly, reviews the scheduling rules governing attending physicians\u2019 rounds over weekends.\nDocument 18 \u2014 dated September 1995, and entitled \u201cMinutes of meeting re: action plan for three shifts\u201d \u2014 has no named author. This document, actually a series of three substantially identical two-page documents, apparently represents the minutes from three nursing \u2018 \u2018MINI-MEETING[S] \u201d for three nursing shifts. This document was signed and dated by several persons, probably nurses at the Hospital who attended these meetings.\nDocument 20 \u2014 dated September 7, 1995, and entitled \u201cMemorandum to staff re: action plan\u201d \u2014 was authored by Dr. Frank Brown, director of the Hospital\u2019s division of respiratory care. This document, addressed to the \u201cRESPIRATORY THERAPY STAFF,\u201d describes the corrective action initiated by the respiratory care division to provide safe ventilation.\nDocument 22 is the same as document 5/attachment 3.\nDocument 26 is the same as document 5/attachment 4.\nThe trial court made a series of rulings regarding these documents, allowing the Hospital to supplement its privilege log and to amend its supporting affidavits.\nThe Hospital supported its assertions with an affidavit from Dr. Larry J. Goodman (Goodman), medical director of the Hospital and chairman of the hospital oversight committee (HOC), and four affidavits from Shellie Karno (Karno), an associate administrator and attorney with the Hospital.\nGoodman\u2019s affidavit described the HOC as \u201ca committee of administrative personnel and senior attending physicians *** responsible for the various clinical departments\u2019 oversight functions that reviews significant patient care and systems issues.\u201d The HOC \u201cmeets twice monthly and ad hoc for the purpose of reviewing patient care, systems issues and incidents in order to reduce patient mortality and morbidity.\u201d Goodman said the HOC \u201creports its findings and recommendations for corrective action to the Cook County Hospital Quality Assurance Committee [QAC].\u201d Goodman said the incident reports in Macon\u2019s case were forwarded to the QAC.\nAccording to Goodman, the incident reports \u201cwere prepared at the request of the [HOC].\u201d Goodman finally noted:\n\u201c[T]hese [incident] reports were an integral part of the quality assurance process and part of the multiple Committee review process\nKarno\u2019s first affidavit echoed Goodman\u2019s affidavit, adding only:\n\u201cThat at each phase of this [committee] process, the contents of the incident reports were analyzed, evaluated and discussed and recommendations were made regarding the contents of the incident reports.\u201d\nKarno\u2019s second affidavit mirrored her first affidavit, except it identified the incident and situational reports in Macon\u2019s case as documents 1 through 5 in the Hospital\u2019s privilege log.\nKarno\u2019s third affidavit did not substantively address the disputed documents and only briefly mentioned documents 20 and 22: \u201cDocuments 19, 20 and 22 were the attachments to Document 21.\u201d\nKarno\u2019s fourth affidavit addressed some of the disputed documents. After describing her job as attorney for the Hospital, Karno said:\n\u201c[A]s the attorney for Cook County Hospital, I requested that reports, such as those identified as Documents 1, 2, 3, 4 and 5, be prepared for the purpose of rendering legal opinions to the [HOC] regarding incidents such as this occurrence.\u201d (Emphasis added.)\nKarno said, \u201cI reviewed Documents 1, 2, 3, 4 and 5 and reported to the [HOC] regarding my legal opinions based on these Documents.\u201d (Emphasis added.) Karno also said:\n\u201c[T]he [HOC] reviewed Documents 1, 2, 3, 4 and 5 and relied on those Documents in preparing its recommendations for action to be taken for the purpose of improving patient care or reducing mortality and morbidity.\u201d\nThis affidavit described documents 1, 2, and 5, but never mentioned document 18 or 26. Additionally, this affidavit did not describe more fully documents 20 and 22.\nThe trial court made a complete ruling for each disputed document on July 8, 1997. The trial court addressed each document separately, ordering production.\nAfter the court ruled the Hospital still refused to produce the disputed documents. On July 25, 1997, the trial court held the Hospital in contempt, entering a citation of $10 per day until the Hospital produced the documents. This appeal followed.\nDECISION\nThe burden of establishing the applicability of a discovery privilege rests with the party seeking to invoke the privilege. Roach v. Springfield Clinic, 157 Ill. 2d 29, 41, 623 N.E.2d 246 (1993).\nThe standard of review depends on the question that was answered in the trial court. Whether a discovery privilege applies is a matter of law, but the question of whether specific materials are part of a medical study is a factual question within that legal determination. Niven v. Siqueira, 109 Ill. 2d 357, 368, 487 N.E.2d 937 (1985); Willing v. St. Joseph Hospital, 176 Ill. App. 3d 737, 744, 531 N.E.2d 824 (1988).\nHere, the trial judge was presented with five affidavits. She proceeded to make detailed factual findings in an effort to determine whether the contested documents are part of the HOC\u2019s medical study. The question before us is whether the trial judge\u2019s findings were against the manifest weight of the evidence. See Menoski v. Shih, 242 Ill. App. 3d 117, 123, 612 N.E.2d 834 (1993). The Hospital contends the Medical Studies Act and the attorney-client privilege shield certain documents from Chicago Trust\u2019s discovery request.\n1. The Medical Studies Act Privilege\nThe Medical Studies Act (the Act) provides:\n\u201cInformation obtained. All information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner\u2019s 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 or mortality, or for improving patient care ***, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, [and] the evaluation and improvement of quality care ***.\u201d 735 ILCS 5/8\u2014 2101 (West 1996).\nThe Act further provides:\n\u201cAdmissibility as evidence. Such information, records, reports, statements, notes, memoranda, or other data, shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person. The disclosure of any such information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.\u201d 735 ILCS 5/8 \u2014 2102 (West 1992).\n\u201c[T]he purpose of this legislation is not to facilitate the prosecution of malpractice cases.\u201d Jenkins v. Wu, 102 Ill. 2d 468, 479, 468 N.E.2d 1162 (1984). \u201cThe purpose of the Act is to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rates of death and disease.\u201d Niven, 109 Ill. 2d at 366. \u201cThe Act is premised on the belief that, absent the statutory peer-review privilege, physicians would be reluctant to sit on peer-review committees and engage in frank evaluations of their colleagues.\u201d Richter v. Diamond, 108 Ill. 2d 265, 269, 483 N.E.2d 1256 (1985).\nThe Act protects against disclosure of the mechanisms of the peer-review process, including information gathering and deliberation leading to the ultimate decision rendered by a hospital peer-review committee. Ekstrom v. Temple, 197 Ill. App. 3d 120, 126, 553 N.E.2d 424 (1990); accord May v. Central Illinois Public Service Co., 260 Ill. App. 3d 41, 48, 633 N.E.2d 97 (1994); Zajac v. St. Mary of Nazareth Hospital Center, 212 Ill. App. 3d 779, 789, 571 N.E.2d 840 (1991); Pritchard v. Swedish-American Hospital, 191 Ill. App. 3d 388, 399, 547 N.E.2d 1279 (1989); Payne v. Nicholas, 156 Ill. App. 3d 768, 779-80, 509 N.E.2d 547 (1987). In other words, documents generated specifically for the use of a peer-review committee receive protection under the Act. Toth v. Jensen, 272 Ill. App. 3d 382, 385, 649 N.E.2d 484 (1995); see Stricklin v. Becan, 293 Ill. App. 3d 886, 890, 689 N.E.2d 328 (1997) (\u201cgenerated during the course of the peer-review process\u201d); Sakosko v. Memorial Hospital, 167 Ill. App. 3d 842, 846, 522 N.E.2d 273 (1988) (\u201cinitiated and used by a committee\u201d).\nThe Hospital divides the disputed documents into two groups: \u201cincident or situational reports and information reflecting the HOC process.\u201d Documents 2 and 4 (incident and situational reports) probably were generated before the HOC began its deliberations. Documents 5, 18, 20, 22, and 26 (information reflecting the HOC process) probably were generated after the HOC completed its deliberations. In other words, the disputed documents fall into predeliberation and postdeliberation categories.\nThe Act does not protect against disclosure of information generated before the peer-review process began. Grandi v. Shah, 261 Ill. App. 3d 551, 556, 633 N.E.2d 894 (1994); May v. Wood River Township Hospital, 257 Ill. App. 3d 969, 976, 629 N.E.2d 170 (1994); Ekstrom, 197 Ill. App. 3d at 129; Marsh v. Lake Forest Hospital, 166 Ill. App. 3d 70, 76, 519 N.E.2d 504 (1988).\nThe Illinois Supreme Court\u2019s latest pronouncement on the Act supports this rale. In Roach, the parents of a child with birth defects brought a medical malpractice claim against the hospital where the child was born and against the mother\u2019s obstetricians. The child\u2019s birth defects allegedly resulted from problems with the mother\u2019s anesthesia. After the child\u2019s birth, the hospital\u2019s chief of anesthesiology spoke with a nurse and a nurse anesthesiologist about the cause of the defects. These conversations occurred well before the monthly meeting of the hospital\u2019s peer-review committee. The parents sought to compel the chief of anesthesiology to disclose the content of these conversations. The hospital objected, citing the Act.\nThe court held: \u201c[W]here the committee is one comprised of the hospital\u2019s medical staff, the committee must be involved in the peer-review process before the privilege will attach.\u201d Roach, 157 Ill. 2d at 40. The court reasoned:\n\u201cIf the simple act of furnishing a committee with earlier-acquired information were sufficient to cloak that information with the statutory privilege, a hospital could effectively insulate from disclosure virtually all adverse facts known to its medical staff, with the exception of those matters actually contained in a patient\u2019s records.\u201d Roach, 157 Ill. 2d at 41.\nThe court concluded such a result would subvert the purpose of the Act by protecting hospitals from medical malpractice claims. Roach, 157 Ill. 2d at 41-42. The court said: \u201c[T]he statute was never intended to shield hospitals from potential liability.\u201d Roach, 157 Ill. 2d at 42, citing Marsh, 166 Ill. App. 3d at 76.\nDocuments 2 and 4 are both form documents prepared close in time to Macon\u2019s accident. Document 2 was written on the same day Macon became disconnected from the ventilator, and document 4 was written the next day. Dr. Campos referred to document 4 in Macon\u2019s inpatient notes. Further, while document 2 did not list a specific destination, document 4 said \u201cRETURN TO DEPT. OF RISK MANAGEMENT.\u201d Were documents 2 and 4 prepared before the HOC, which meets \u201ctwice monthly and ad hoc,\u201d began gathering information? There is no way to tell. Neither Goodman\u2019s nor Karno\u2019s affidavits tell us when the HOC met to discuss Macon\u2019s accident. Nor do we know when the HOC began or ended its review.\nGoodman\u2019s only affidavit, standing alone, does not establish the privilege for documents 2 and 4. Goodman said: \u201c[T]he incident reports in this case were prepared at the request of the [HOC].\u201d Karno\u2019s first affidavit repeated this statement. Karno\u2019s second affidavit also repeated this statement and added, \u201cincident and situational reports were prepared regarding this case at the request of the [HOC].\u201d The trial judge was given no facts concerning who made the request, when it was made, or where it was made. The statement in the affidavits is pure conclusion, bereft of facts.\nKarno\u2019s third affidavit did not discuss documents 2 and 4, but in her fourth affidavit Karno said: \u201c[A]s the attorney for Cook County Hospital, I requested that reports, such as those identified as [documents 2 and 4] be prepared for the rendering of legal opinions to the [HOC] regarding incidents such as this occurrence.\u201d (Emphasis added.) Karno also said she reported her legal (not medical) opinions to the HOC after reviewing documents 2 and 4. Obviously, legal advice is not a goal of the protection offered by the Act.\nWhile Goodman and Karno make identical conclusory statements in their first affidavits, Karno\u2019s account changes in her fourth attempt to support the Hospital\u2019s privilege. She initially said the HOC specifically requested incident reports, including documents 2 and 4. Later, she said she requested reports \u201csuch as\u201d documents 2 and 4 to help her formulate legal opinions. Goodman\u2019s affidavit and Karno\u2019s fourth affidavit contradict each other. And the Hospital has supplied no affidavits from Jose, Allegre, and Moravitz \u2014 the authors of documents 2 and 4, the people in the best position to resolve this conflict.\nThe trial court found the documents belie Karno\u2019s implication that she requested these specific documents, as well as Goodman\u2019s assertion the HOC requested these documents.\nThe Hospital relies on Flannery v. Lin, 176 Ill. App. 3d 652, 531 N.E.2d 403 (1988). In Flannery, the court held a document prepared during a patient\u2019s admission and later presented to, and used by, a hospital\u2019s peer-review committee fell within the privilege. Flannery, 176 Ill. App. 3d at 658. While Flannery is authority for the Hospital\u2019s position, its vitality was drained by Roach. See Roach, 157 Ill. 2d at 41 (\u201cearlier-acquired information\u201d furnished to peer-review committee is not cloaked by the Act\u2019s privilege).\nWe looked at polygraph tests given to nurses as part of an internal hospital investigation in Marsh, 166 Ill. App. 3d at 76. We found no privilege:\n\u201c[T]he record shows that, at least in this instance, the investigation was undertaken by the hospital administration. Given the potential risks involved, it does not seem that the administrators would be deterred from such an investigation simply because the result might subsequently be discoverable in a civil suit against the hospital.\u201d 166 Ill. App. 3d at 76.\nSee Dunkin v. Silver Cross Hospital, 215 Ill. App. 3d 65, 68, 573 N.E.2d 848 (1991) (\u201cThe reports are the same kind of incident, reports which any business might have\u201d).\nThe Act also does not protect against disclosure of the peer-review committee\u2019s recommendations after completion of the peer-review process. Richter, 108 Ill. 2d at 269; Willing, 176 Ill. App. 3d at 743; Gleason v. St. Elizabeth Medical Center, 135 Ill. App. 3d 92, 95, 481 N.E.2d 780 (1985).\nDocuments 5 and 20 (which \"also encompass documents 22 and 26) demonstrate the Hospital\u2019s responses to, and recommendations after, Macon\u2019s accident. These documents either describe ventilator problems or prescribe measures to solve these problems.\nAlthough these documents had a wide audience, certainly wider than the HOC committee, disclosure does not waive the Act\u2019s privilege. See 735 ILCS 5/8 \u2014 2102 (West 1996); Sakosko, 167 Ill. App. 3d at 846. The trial judge was mistaken when she implied disclosure waives the Act\u2019s privilege. Disclosure or not, the question is whether the HOC initiated, created, prepared, or generated the documents. We see nothing in the affidavits which requires an affirmative answer.\nThese documents were distributed beyond the HOC: nine doctors and \u201cAll Department Chairpersons\u201d (document 5/attachment 3); \u201cPHYSICIANS,\u201d \u201cNURSES,\u201d \u201cRESPIRATORY THERAPISTS,\u201d and \u201cPHARMACY\u201d (document 5/attachment 4); \u201cMICU Attendings\u201d (document 5/attachment 5); and \u201cRESPIRATORY THERAPY STAFF\u201d (document 20). In fact, Goodman, the chairman of the HOC, is not listed specifically as an addressee in any of these documents. The broad dissemination of these documents \u2014 along with their descriptive/ prescriptive content \u2014 is evidence they were not generated during the peer-review process, but were created as a result of that process. The documents did not \u201cbelong\u201d to the HOC. Grandi, 261 Ill. App. 3d at 556.\nAlthough the Hospital concedes documents 5 and 20 represent the results of the HOC\u2019s peer-review process, it contends such results still fall under the Act. The hospital relies on our recent opinion in Doe v. Illinois Masonic Medical Center, 297 Ill. App. 3d 240 (1998), equating the privileged protocols in Doe with the HOC\u2019s responses and recommendations here.\nWe read Doe differently. In Doe, we held the protocols governing a medical study were privileged under the Act. In that context, a protocol is \u201cthe plan of a scientific or medical experiment or treatment.\u201d Webster\u2019s Third New International Dictionary 1824 (1986). Obviously, the plan for a medical study would come before the study, not as a result of the study, and drives the operation of the study. Doe provides no support for the Hospital.\nRegarding document 18, the trial court denied the Hospital\u2019s privilege claim because the Hospital failed to offer any support for a privilege. None of the affidavits mentioned this document.\nWhen a trial court finds a document at issue was initiated, created, prepared, or generated by a peer-review committee, it should be considered privileged under the Act, even though it was later disseminated outside the peer-review process. If, however, a document was created in the ordinary course of\u2018the hospital\u2019s medical business or for the purpose of rendering legal opinions or to weigh potential liability risk or for later corrective action by the hospital staff, it should not be privileged, even though it later was used by a committee in the peer-review process.\nThe Hospital seems to be saying its HOC can invoke the Act\u2019s protection by declaring in advance that all incident documents prepared by the Hospital staff are part of the peer-review process. The Hospital\u2019s position goes too far. Such a policy, if effective, would swallow the rule. The Act would not create exceptions to disclosure. It would make everything confidential, except for the patient\u2019s own medical records.\nWe believe a trial court\u2019s proper course, followed here, is to examine each document at issue to determine whether it, specifically, has been made part of the peer-review process. As it does so, the court should keep in mind that the simple act of stamping the word \u201cconfidential\u201d on a piece of paper does not, in itself, invoke the protection of the Act. The trial judge must be told how, when, and why the stamp was used.\nIn this case, every piece of paper at issue has been stamped \u201cconfidential.\u201d The trial judge was not told who put the stamp on the papers, when it was done, or under what circumstances. The trial court properly discounted the import of the stamp.\nWe conclude the trial court did not abuse its discretion when it found the Act\u2019s privilege did not justify refusal to produce the contested documents.\n2. The Attorney-Client Privilege\nSupreme Court Rule 201(b)(2) provides:\n\u201cAll matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party\u2019s attorney.\u201d 134 Ill. 2d R. 201(b)(2).\n\u201cThe definition and application of the attorney-client privilege have been explained as follows: (1) where legal advice of any kind is sought; (2) from a professional legal adviser in his capacity as such; (3) the communications relating to that purpose; (4) made in confidence; (5) by the client; (6) are at his instance permanently protected; (7) from disclosure by himself or by the legal adviser; (8) except the protection may be waived.\u201d In re Grand Jury January 246, 272 Ill. App. 3d 991, 996, 651 N.E.2d 696 (1995), citing People v. Adam, 51 Ill. 2d 46, 48, 280 N.E.2d 205 (1972).\nSee also Sakosko, 167 Ill. App. 3d at 847.\nThis privilege also extends to communications between an insurer and an insured, where the insurer has a duty to defend. People v. Ryan, 30 Ill. 2d 456, 461, 197 N.E.2d 15 (1964); Buckman v. Columbus-Cabrini Medical Center, 272 Ill. App. 3d 1060, 1066, 651 N.E.2d 767 (1995); Hyams v. Evanston Hospital, 225 Ill. App. 3d 253, 257-58, 587 N.E.2d 1127 (1992). Claxton v. Thackston, 201 Ill. App. 3d 232, 235, 559 N.E.2d 82 (1990); Ekstrom, 197 Ill. App. 3d at 130. In these cases, the party asserting the privilege must prove:\n\u201c(1) the identity of the insured; (2) the identity of the insurance carrier; (3) the duty to defend the lawsuit; and (4) that a communication was made between the insured and an agent of the insurer.\u201d Rapps v. Keldermans, 257 Ill. App. 3d 205, 212, 628 N.E.2d 818 (1993).\nIn its brief, the Hospital asserts the attorney-client privilege only for documents 2 and 4, although its privilege log also listed document 5 as subject to this privilege. The Hospital contends the insurer-insured privilege applies to documents 2 and 4 because the Hospital is a self-insurer.\nTo support its contention, the Hospital offers Karno\u2019s fourth affidavit, in which she said: she served as the Hospital\u2019s attorney, investigating incidents and offering legal advice to the HOC; she requested \u201creports, such as\u201d documents 2 and 4 \u201cbe prepared for the purpose of rendering legal opinions\u201d to the HOC; and she reviewed documents 2 and 4 in rendering her legal opinions.\nKarno\u2019s affidavit fails to support the attorney-client privilege.\nDocument 2 \u2014 \u201cSituational Report\u201d \u2014 was prepared by Lisanna Jose, a respiratory therapist at the hospital. Document 4 \u2014 \u201cIncident Report\u201d \u2014 was prepared by Corazon Allegre, a registered nurse at the hospital, and someone named Maureen Moravitz. Document 4 also notes the person(s) completing it should \u201cRETURN TO DEPT. OF RISK MANAGEMENT.\u201d\nKarno said she relied on these reports in formulating her legal opinions, but she did not indicate Jose, Allegre, and Moravitz were her clients when they wrote and transmitted the documents. Although Jose and Allegre later were named as defendants in Chicago Trust\u2019s second amended complaint, Karno did not say she represented them when they prepared the documents. (The record on appeal contains an answer to this complaint only from Puritan-Bennett Corporation, a products liability defendant.) We see nothing in this record that indicates Jose, Allegre, or Moravitz is asserting an attorney-client privilege.\nKarno\u2019s client was the Hospital, a municipal corporation. Notably, the Hospital does not contend Jose and Allegre were part of the corporate control group whose communications were subject to the corporate attorney-client privilege. See Hyams, 225 Ill. App. 3d at 253; Claxton, 201 Ill. App. 3d. at 236-37. Jose and Allegre were mere employees, and Cook County has said, \u201cAny employee who desires to retain additional counsel may do so at his or her own expense.\u201d Cook County, Ill., Ordinance 22 \u2014 22 (1980).\nAdditionally, documents 2 and 4 were not addressed to or prepared by Karno. Document 2 does not indicate an addressee, and document 4 lists \u201cDEPT. OF RISK MANAGEMENT\u201d as the intended addressee. Karno\u2019s affidavit does not describe this risk management department or her role in it.\nIn Sakosko, a hospital asserted the attorney-client privilege with regard to several documents, including two letters from its risk management consultant to its risk manager outlining meetings of the risk management committee. The court said:\n\u201cThe purpose of the risk management committee is to review, investigate, evaluate and dispose of professional liability claims against defendant [hospital]. Present at meetings of the committee are top management officials of the defendant, the risk manager, the risk management consultant and defendant\u2019s legal counsel.\u201d Sakosko, 167 Ill. App. 3d at 847.\nThe court held these documents were not privileged because they did not constitute communications between the hospital and its attorney. Sakosko, 167 Ill. App. 3d at 847.\nSimilarly, documents 2 and 4 do not seek legal advice. In other words:\n\u201cThe [documents] are not addressed to or prepared by [the Hospital\u2019s] attorney. They are not memoranda of communications to, or advice from, defendant\u2019s attorney. Instead, the exhibits contain primarily factual statements relating to plaintiff[\u2019s] medical conditions and prognoses.\u201d (Emphasis added.) Sakosko, 167 Ill. App. 3d at 847.\nFinally, Dr. Campos referred to document 4 in Macon\u2019s inpatient progress notes, and document 4 itself said it was bound for the risk management department. Although Karno indicates she kept these documents confidential, her claim is not credible, at least regarding document 4. If the documents were given to persons outside the attorney-client relationship, any privilege that might have existed was waived. The HOC claims it received the documents.\nKarno\u2019s affidavit also fails to support the insurer-insured privilege.\nAs a self-insurer, the Hospital has \u201cthe exclusive right to defend any action or claim with counsel of its own choosing.\u201d Cook County, Ill., Ordinance 22 \u2014 22 (1980). The Hospital also has a duty to indemnify its employees. See Cook County, Ill., Ordinance 22 \u2014 21 (1980). As a result, the Hospital contends documents 2 and 4 were communications between an insurer (the Hospital) and insureds (Jose, Allegre, and Moravitz), and therefore subject to the attorney-client privilege.\nIn Buckman, a self-insurer hospital asserted the insurer-insured privilege with regard to communications between a nurse and the hospital\u2019s attorney, who appeared for the nurse at a deposition. The court declined to apply the insurer-insured privilege and instead applied the attorney-client privilege. Buckman, 272 Ill. App. 3d at 1066. The court reasoned the hospital\u2019s attorney had acted directly as the nurse\u2019s attorney in rendering legal advice and services. Buckman, 272 Ill. App. 3d at 1066.\nHere, however, the Hospital cannot rely on such an argument because it has not shown Jose, Allegre, and Moravitz drafted documents 2 and 4 specifically to help Karno render legal advice to them. More importantly, the insurer-insured privilege, as an offshoot of the attorney-client privilege, applies when:\n\u201cthe insured may. properly assume that the communication is made to the insurer for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured.\u201d (Emphasis added.) Ryan, 30 Ill. 2d at 461.\nSee Rapps, 257 Ill. App. 3d at 212; Hyams, 225 Ill. App. 3d at 257; Claxton, 201 Ill. App. 3d at 235-36.\nDespite Karno\u2019s standing order to the Hospital staff requesting \u201creports, such as\u201d documents 2 and 4, Karno stated she requested these documents \u201cfor the purpose of rendering legal opinions to the [HOC] regarding incidents such as this occurrence.\u201d The Hospital has not shown these documents were drafted by Jose, Allegre, and Moravitz in order to protect their own interests.\nThe trial court correctly overruled the Hospital\u2019s objections based on the attorney-client privilege, and its corollary, the insurer-insured privilege.\n3. Contempt\n\u201c[A] contempt citation is an appropriate method for testing the propriety of a discovery order.\u201d Flannery, 176 Ill. App. 3d at 655. However, as noted by the trial court, the Hospital was not contemptuous of the court\u2019s authority. The Hospital\u2019s refusal was made in good faith. It merely sought appellate review of its unsuccessful assertions of privilege.\nThe contempt order is vacated. See People ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d 745, 756, 686 N.E.2d 66 (1997).\nCONCLUSION\nThe trial court correctly overruled Cook County Hospital\u2019s objections to producing the nine disputed records. The contempt order is vacated. We return the sealed documents to the trial court for proceedings consistent with this order.\nRemanded.\nCERDA, EJ., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Richard A. Devine, State\u2019s Attorney, of Chicago (Patricia M. Shymanski, Thomas M. Burnham, Mary E Tobin, and Patrick M. Blanchard, Assistant State\u2019s Attorneys, of counsel), for appellant.", "Donald J. Nolan and William J. Jovan, both of Law Offices of Donald J. Nolan, of Chicago, for appellee." ], "corrections": "", "head_matter": "CHICAGO TRUST COMPANY, as Guardian of the Estate of Donald Macon, a Disabled Person, Plaintiff-Appellee, v. COOK COUNTY HOSPITAL et al., Defendants (The Office of the State\u2019s Attorney of Cook County, Contemnor-Appellant).\nFirst District (4th Division)\nNo. 1\u201497\u20143233\nOpinion filed July 30, 1998.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Patricia M. Shymanski, Thomas M. Burnham, Mary E Tobin, and Patrick M. Blanchard, Assistant State\u2019s Attorneys, of counsel), for appellant.\nDonald J. Nolan and William J. Jovan, both of Law Offices of Donald J. Nolan, of Chicago, for appellee." }, "file_name": "0396-01", "first_page_order": 416, "last_page_order": 430 }