{ "id": 25382, "name": "MARTISSA BERRY, Indiv. and as Mother and Next Friend of Jalen Charles, a Minor, Plaintiffs-Appellees, v. WEST SUBURBAN HOSPITAL MEDICAL CENTER, Defendant-Appellant (Amy LaHood et al., Defendants)", "name_abbreviation": "Berry v. West Suburban Hospital Medical Center", "decision_date": "2003-03-24", "docket_number": "No. 1-02-0201", "first_page": "49", "last_page": "57", "citations": [ { "type": "official", "cite": "338 Ill. App. 3d 49" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "272 Ill. App. 3d 1060", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 251898 ], "year": 1995, "pin_cites": [ { "page": "1067" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/1060-01" ] }, { "cite": "335 Ill. App. 3d 134", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637032 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "139" }, { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0134-01" ] }, { "cite": "261 Ill. App. 3d 551", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5372431 ], "year": 1994, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0551-01" ] }, { "cite": "298 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073658 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "401" }, { "page": "402", "parenthetical": "reports prepared shortly after the incident and used by the oversight committee to review that incident were not privileged where the reports were not requested by - and thus did not belong to - a committee engaged in the peer-review process" }, { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0396-01" ] }, { "cite": "109 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126692 ], "year": 1985, "pin_cites": [ { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0357-01" ] }, { "cite": "157 Ill. 2d 29", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778592 ], "weight": 16, "year": 1993, "pin_cites": [ { "page": "41" }, { "page": "40" }, { "page": "40" }, { "page": "39", "parenthetical": "\"What the [Act] actually protects is not information of a hospital's medical staff, but information of 'committees of licensed or accredited hospitals or their medical staffs ***.' (Emphasis added.) [Citation.]\"" }, { "page": "35-36" }, { "page": "36-38" }, { "page": "39" }, { "page": "39" }, { "page": "36" }, { "page": "37" }, { "page": "32" }, { "page": "40-41" }, { "page": "41" }, { "page": "40" }, { "page": "40" }, { "page": "42-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0029-01" ] } ], "analysis": { "cardinality": 756, "char_count": 18070, "ocr_confidence": 0.777, "pagerank": { "raw": 9.67115981056067e-08, "percentile": 0.5289074768451751 }, "sha256": "d239dd4f5045f51a9a5425ff41ea694e01d8ffe878ccd2a16f1d90491a0422de", "simhash": "1:dfbb0ce82f8c5946", "word_count": 2810 }, "last_updated": "2023-07-14T21:28:15.941926+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARTISSA BERRY, Indiv. and as Mother and Next Friend of Jalen Charles, a Minor, Plaintiffs-Appellees, v. WEST SUBURBAN HOSPITAL MEDICAL CENTER, Defendant-Appellant (Amy LaHood et al., Defendants)." ], "opinions": [ { "text": "JUSTICE SMITH\ndelivered the opinion of the court:\nDefendant-appellant West Suburban Hospital Medical Center (the Hospital) contends that a certain document plaintiffs requested in discovery is protected by sections 8 \u2014 2101 through 8 \u2014 2105 of the Code of Civil Procedure (735 ILCS 5/8 \u2014 2101 et seq. (West 1998)) (hereinafter the Medical Studies Act or the Act). The Hospital contends that (1) the trial court should not have ordered it to produce that document and (2) this court should vacate the trial court\u2019s order finding the Hospital in contempt for refusing to produce that document. We affirm the trial court\u2019s finding that the document should be produced but vacate the trial court\u2019s finding of contempt.\nBACKGROUND\nPlaintiffs Martissa Berry and Jalen Charles filed a medical negligence complaint against defendants West Suburban Hospital Medical Center, Amy LaHood, M.D., Karla Clark, M.D., and Bertha Lopez, M.D., arising from the obstetrical care defendants provided to plaintiffs during labor and delivery. Plaintiffs alleged that on September 13, 1999, Berry was experiencing contractions and was admitted to the Hospital but then discharged with instructions to return when her contractions became more frequent. After Berry was readmitted to the Hospital on September 14, 1999, an emergency caesarean section was performed, and Charles was born with disabilities.\nPlaintiffs alleged that Charles\u2019s disabilities resulted from defendants\u2019 negligence. Specifically, plaintiffs alleged that defendants negligently (1) discharged Berry on September 13, 1999, despite purported evidence of fetal distress; (2) failed to timely administer in-trapartum antibiotics to Charles; (3) failed to monitor the progress of Berry\u2019s labor or Charles\u2019s well-being; and (4) failed to timely perform the emergency caesarean section.\nDuring the course of discovery, plaintiffs requested documents from the Hospital. The Hospital disclosed the existence of four documents within the scope of plaintiffs\u2019 discovery request. One of the four was a letter from Dr. Lopez to Vasant Acharya, M.D., chairperson of the Hospital\u2019s department of obstetrics and gynecology, dated September 16, 1999 (September 16 letter). The Hospital, however, declined to provide the documents, contending that the documents were protected from disclosure under the Act. Plaintiffs filed a motion to compel the documents and requested that the documents be made available for an in camera inspection by the trial court. Defendants filed in opposition a response that included the affidavits of Dr. Lopez and Dr. Acharya. Furthermore, defendants agreed to provide the documents to the trial court under separate, sealed cover for in camera inspection.\nThe September 16 letter at issue on appeal began: \u201cDr. Acharya: This note is to inform you of the events that occurred on the morning of September 14, 1999.\u201d Dr. Lopez then made factual statements relating to Berry\u2019s medical condition and the sequence of events surrounding her treatment while at the hospital. The September 16 letter was not addressed to and did not refer to any hospital investigatory committee.\nIn her affidavit dated October 5, 2001, Dr. Lopez stated that her purpose in writing the September 16 letter to Dr. Acharya was to \u201cbring potential issues to his attention concerning quality improvement at the hospital for the purpose of reducing morbidity and mortality.\u201d According to Dr. Lopez, she understood that the issues raised in her letter would then be addressed by the Hospital\u2019s quality assurance committee. Dr. Lopez also understood that her letter to Dr. Acharya \u201cwould be privileged since it addressed internal quality assurance issues at the hospital.\u201d\nIn his affidavit dated October 29, 2001, Dr. Acharya stated that it was his duty to oversee quality assurance and improvement issues within the obstetrics and gynecology department and to oversee the department\u2019s quality management program. The program\u2019s purpose was to identify areas of care that needed improvement and to reduce morbidity and mortality within the department. As part of the program, the department reviewed various patient cases. According to Dr. Acharya, to facilitate the quality assurance process, department physicians and nurses were responsible for informing Dr. Acharya, either verbally or in writing, of patient cases with potential quality assurance issues. Dr. Acharya stated that the \u201cinitial communication from the physician and/or nurse begins the quality assurance process,\u201d whereupon the \u201cpatient\u2019s chart is reviewed and the case is discussed at a monthly morbidity and mortality (M&M) review meeting\u201d of the department. Dr. Acharya stated that the September 16 letter notified him of potential quality assurance issues in the care of Berry and began the quality assurance review of Berry\u2019s case.\nThe record does not include a transcript of the hearing on plaintiffs\u2019 motion to compel and does not indicate whether the trial court conducted an in camera inspection of the disputed discovery documents. On November 21, 2001, the trial court ordered the Hospital to produce the September 16 letter but denied plaintiffs\u2019 motion to compel production of the other three documents. After the Hospital refused to produce the September 16 letter, the trial court held the Hospital in contempt and fined it $10. This appeal followed.\nANALYSIS\nThe Hospital contends on appeal that the September 16 letter is privileged under the Act because it triggered the internal quality control proceedings regarding Berry\u2019s case. The Hospital argues that the letter is privileged as a report or statement used in the course of internal quality control. We disagree.\nThe Medical Studies Act Privilege\nThe Act provides:\n\u201cAll 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 or increasing organ and tissue donation, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, or granting, hmiting or revoking staff privileges or agreements for services ***.\u201d 735 ILCS 5/8 \u2014 2101 (West 1998).\nThe Act farther provides that such privileged material \u201cshall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person.\u201d 735 ILCS 5/8 \u2014 2102 (West 1998).\nThe burden of establishing the applicability of this statutory privilege is on the party seeking to invoke the privilege. Roach v. Springfield Clinic, 157 Ill. 2d 29, 41 (1993). Whether the privilege applies is a matter of law, and our standard of review is de novo. Niven v. Siqueira, 109 Ill. 2d 357, 368 (1985). However, the question of whether specific materials are part of an internal quality control or a medical study is a factual question and will not be reversed on review unless it is against the manifest weight of the evidence. Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 401 (1998).\nThe purpose of the Act is to ensure that members of the medical profession will effectively engage in self-evaluation of their peers in the interest of improving hospital conditions and patient care or reducing the rates of death and disease. Roach, 157 Ill. 2d at 40. The Act is premised on the belief that, absent a peer-review privilege, physicians would be reluctant to sit on peer-review committees and engage in candid evaluations of their colleagues. Roach, 157 Ill. 2d at 40.\nThe Hospital argues that the September 16 letter is privileged because Dr. Lopez wrote it to begin the quality review process and understood its contents would be privileged and confidential. The Hospital asserts that the application of the privilege to the September 16 letter is consistent with the Act\u2019s purpose to encourage candid and voluntary peer-review programs to improve hospital conditions and patient care and to reduce the rates of death and disease. We disagree.\nEven if the September 16 letter notified Dr. Acharya on behalf of the investigatory committee of a potential quality control issue, the Act\u2019s privilege does not apply because the September 16 letter was information of the Hospital\u2019s staff rather than information of any committee, peer-review or otherwise. Roach, 157 Ill. 2d at 39 (\u201cWhat the [Act] actually protects is not information of a hospital\u2019s medical staff, but information of \u2018committees of licensed or accredited hospitals or their medical staffs ***.\u2019 (Emphasis added.) [Citation.]\u201d). According to the record, the earliest indication of any peer-review committee meeting in the Berry case was February 11, 2000, which was several months after Dr. Lopez wrote the September 16 letter.\nOur supreme court addressed a similar appeal in Roach, where the plaintiffs alleged that their child\u2019s birth defects resulted from an unreasonable delay in providing the mother\u2019s anesthesia. 157 Ill. 2d at 35-36. A couple of days after the child\u2019s birth but before the monthly meeting of the hospital\u2019s peer-review committee, the hospital\u2019s chief anesthesiologist spoke with a nurse and a nurse anesthetist about the cause of the alleged delay. Roach, 157 Ill. 2d at 36-38. With respect to those conversations, the chief anesthesiologist stated in his deposition that his specific purpose as the department chairperson had been \u201c \u2018[t]o determine if there was a problem, and if there was a problem, to help find ways to improve things; quality control.\u2019 \u201d Roach, 157 Ill. 2d at 39. Following those conversations, the chief anesthesiologist \u201c \u2018made a report to the Department of Anesthesia meeting.\u2019 \u201d Roach, 157 Ill. 2d at 39.\nAt trial, the Roach plaintiffs called as a witness the nurse anesthetist, who referred to the aforementioned conversation with the chief anesthesiologist. Roach, 157 Ill. 2d at 36. The defense then objected, and the trial court sustained that objection and refused to allow the nurse anesthetist to testify about his conversation with the chief anesthesiologist, finding that it was privileged under the Act. Roach, 157 Ill. 2d at 37. On appeal, our supreme court held that the trial court erroneously excluded that evidence. Roach, 157 Ill. 2d at 32.\nThe Roach court held that the information obtained by the chief anesthesiologist (1) was not privileged under the Act because it was not \u201c \u2018information of any committee, peer-review or otherwise\u201d and (2) \u201cwas not transformed into \u2018information of \u201d a department or committee merely because the chief anesthesiologist reported the incident to a peer-review body sometime later. (Emphasis in original.) Roach, 157 Ill. 2d at 40-41. The Roach court reasoned that to hold otherwise would completely subvert the purpose of the Act to promote improved patient care because hospitals could then foreclose disclosure of virtually all adverse facts known to its medical staff. 157 Ill. 2d at 41.\nBecause the information sought in Roach was not information of any committee, our supreme court found it unnecessary to definitively resolve the issue of whether a hospital\u2019s committee must be involved in the peer-review process before the privilege will attach. Roach, 157 Ill. 2d at 40. The Roach court noted, however, that the legislative debate and case law concerning the Act suggested that when the committee is comprised of a hospital\u2019s medical staff, \u201cthe committee must be involved in the peer-review process before the privilege will attach.\u201d (Emphasis added.) Roach, 157 Ill. 2d at 40.\nSubsequently, this court interpreted the Act to limit the privilege to the mechanisms of the peer-review process \u2014 i.e., information initiated, created, prepared or generated by a peer-review committee, including information gathering and deliberation leading to the committee\u2019s ultimate decision. Chicago Trust Co., 298 Ill. App. 3d at 402 (reports prepared shortly after the incident and used by the oversight committee to review that incident were not privileged where the reports were not requested by \u2014 and thus did not belong to \u2014 a committee engaged in the peer-review process); Grandi v. Shah, 261 Ill. App. 3d 551, 556 (1994) (even assuming that a hospital administrator\u2019s conversations with a doctor and nurse to investigate a patient complaint were part of the hospital\u2019s internal review process, those conversations were not protected because the administrator was not acting on behalf of any peer-review committee).\nHere, the Hospital attempts to distinguish Roach by suggesting that the September 16 letter marked the beginning of the peer-review process \u2014 and thus was part of that process \u2014 because Dr. Lopez wrote the letter in response to established Hospital policy that staff was responsible for notifying the quality control committee of potential issues.\nIn Roach, the defendant hospital made a similar argument \u2014 i.e., that the chief anesthesiologist\u2019s conversations with two medical staff members were tantamount to an investigation by a committee and thus were part of the peer-review process. The Roach court, however, rejected that argument, noting that the chief anesthesiologist spoke to those staff members before the department was notified of the problem; that there was no legal principle warranting imputing the chief anesthesiologist\u2019s actions to the department simply because he served as its chairperson; that the department, as a body, was charged with the responsibility for conducting medical reviews at monthly meetings; and that the hospital\u2019s bylaws contained no provision conferring on the chairperson or any individual the authority to act for the department. Roach, 157 Ill. 2d at 42-43.\nFor these same reasons, we reject the Hospital\u2019s assertion that Dr. Lopez\u2019s September 16 letter was protected as part of the peer-review process. Clearly, Dr. Lopez, who had no similar position of authority as the chief anesthesiologist in Roach, cannot successfully argue that she was acting on behalf of the department or a committee to investigate the Berry case where the Hospital concedes that the department was not aware of the problem until Dr. Lopez\u2019s September 16 notification and where the peer-review committee met several months after Dr. Lopez wrote the September 16 letter.\nThe Hospital also contends that Roach is not relevant, arguing that Roach (1) did not address a writing submitted to a peer-review committee to initiate its proceedings, and (2) merely stands for the proposition that information does not become privileged simply because a written report containing it might be privileged. The application of the privilege under the Act is not based on whether the information is verbal or written; under the express terms of the statute, the privilege, where it exists, extends to \u201c[a]ll information, interviews, reports, statements, memoranda *** or other data.\u201d 735 ILCS 5/8 \u2014 2101 (West 1998). Moreover, the Hospital ignores the Roach court\u2019s holding that the Act does not protect information of a hospital\u2019s medical staff, but information of its committees. The Hospital also ignores the Roach court\u2019s extensive discussion and rejection of the argument that an investigation initiated and conducted by a department chairperson was tantamount to an investigation by a committee of that department.\nThe September 16 letter was not initiated, created or generated by a peer-review committee. The letter was written prior to the commencement of the peer-review, process as a means to bring to Dr. Acharya\u2019s attention a potential quality issue. Based on our careful review of the record, we find that the trial court properly ordered the Hospital to produce the September 16 letter.\nContempt\nAs a final matter, we address the trial court\u2019s contempt order. Requesting the trial court to enter a contempt order is a proper procedure to seek immediate appeal of a trial court\u2019s discovery order. Green v. Lake Forest Hospital, 335 Ill. App. 3d 134, 139 (2002); Buckman v. Columbus-Cabrini Medical Center, 272 Ill. App. 3d 1060, 1067 (1995). In this case, we find that the Hospital\u2019s decision not to produce the September 16 letter was made in good faith. The Hospital was not contemptuous of the trial court\u2019s authority but merely sought appellate review of its unsuccessful assertion of privilege. Green, 335 Ill. App. 3d at 139. We therefore vacate the trial court\u2019s contempt order and fine. Chicago Trust Co., 298 Ill. App. 3d at 410.\nCONCLUSION\nThe trial court correctly overruled the Hospital\u2019s objections to producing the September 16 letter. The contempt order is vacated. We return the sealed document to the trial court for proceedings consistent with this order.\nAffirmed in part and vacated in part; cause remanded.\nGORDON, EJ., and McNULTY, J., concur.\nThe three other documents were (1) Dr. Acharya\u2019s letter to Dr. Lopez, dated February 18, 2000, which was written after a morbidity and mortality review meeting held February 11, 2000; (2) Dr. Lopez\u2019s letter to Dr. Acharya, dated March 3, 2000, which was written at the request of the morbidity and mortality review committee; and (3) a multidisciplinary case review report.", "type": "majority", "author": "JUSTICE SMITH" } ], "attorneys": [ "Morgan M. Strand, of Cassidy, Schade & Gloor, of Chicago, for appellant.", "A. Denison Weaver, of A. Denison Weaver, Ltd., of Chicago, for appellees." ], "corrections": "", "head_matter": "MARTISSA BERRY, Indiv. and as Mother and Next Friend of Jalen Charles, a Minor, Plaintiffs-Appellees, v. WEST SUBURBAN HOSPITAL MEDICAL CENTER, Defendant-Appellant (Amy LaHood et al., Defendants).\nFirst District (1st Division)\nNo. 1\u201402\u20140201\nOpinion filed March 24, 2003.\nMorgan M. Strand, of Cassidy, Schade & Gloor, of Chicago, for appellant.\nA. Denison Weaver, of A. Denison Weaver, Ltd., of Chicago, for appellees." }, "file_name": "0049-01", "first_page_order": 67, "last_page_order": 75 }