Chicago Trust Co. v. Cook County Hospital
Annotate this Case
Fourth Division
July 30, 1998
No. 1-97-3233
CHICAGO TRUST COMPANY, as guardian of ) APPEAL FROM THE
the Estate of DONALD MACON, a disabled ) CIRCUIT COURT OF
person, ) COOK COUNTY.
)
Plaintiff-Appellee, )
)
v. )
)
COOK COUNTY HOSPITAL, a municipal )
corporation; COUNTY OF COOK, a )
municipal corporation and body political; )
BOARD OF COMMISSIONERS OF COOK COUNTY, a )
municipal corporation; PURITAN- )
BENNETT CORPORATION, a foreign )
corporation; and HUDSON RESPIRATORY )
CARE, INC., a foreign corporation, )
)
Defendants, )
)
and the OFFICE OF THE STATE'S ATTORNEY )
OF COOK COUNTY, ) HONORABLE
) LYNN M. EGAN,
Contemnor-Appellant. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
In this case we review Cook County Hospital's 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.
Cook County Hospital (the Hospital) appeals the trial
court's 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
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.
FACTS
Donald Macon (Macon) was admitted to Cook County Hospital
(the 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 non-verbal, non-responsive
quadriplegic.
Chicago Trust Company (Chicago Trust) filed a medical
malpractice/products liability complaint on behalf of Macon's
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.
During 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 5/8-2101 et seq. (West 1992 & Supp. 1997)) and the
attorney-client privilege (see 134 Ill. 2d R. 201(b)(2)).
Of these 28 documents, the trial court eventually ordered
the Hospital to produce 13 of them. The Hospital later waived
its privilege claims on four of these 13 documents. The parties
dispute nine documents, two of which are duplicates.
Document 2--dated August 18, 1995, and entitled "Situational
Report"--was authored by Lisanna Jose, a respiratory therapist at
the Hospital. This document describes Jose's conduct on the date
of Macon's accident.
Document 4--dated August 19, 1995, and entitled "Incident
Report"--was authored by Corazon Allegre, a registered nurse at
the Hospital, and an unidentified person named Maureen Moravitz.
This document describes Allegre's conduct on the date of Macon's
accident and orders the person completing it to "RETURN TO DEPT.
OF RISK MANAGEMENT." Macon's inpatient notes, written by a Dr.
Campos, state: "Aware of incident report and accident occurred
last night."
Document 5/attachment 3--dated September 5, 1995, and
entitled "MEMORANDUM RE: VENTILATOR CIRCUITS WITH IN-LINE
NEBULIZERS"--was authored by Dr. Phillip Bodenstab, the
Hospital's Medical Director of Respiratory Care. This document,
addressed to nine doctors and "All Department Chairpersons,"
notifies its recipients that ventilators may disconnect during
certain procedures and advises preventative measures.
Document 5/attachment 4--dated August 30, 1995, and entitled
"GUIDELINES WHEN USING PARALYTIC AGENTS FOR MECHANICAL
VENTILATION"--was authored by Dr. Corey Franklin, the Hospital's
Director of MICU. This document, addressed to physicians,
nurses, respiratory therapists, and pharmacists, provides tips
for patient care during ventilation.
Document 5/attachment 5--dated September 6, 1995,--was
authored by Dr. Franklin. This document, addressed "To: MICU
Attendings," S. Karno, and B. Reilly, reviews the scheduling
rules governing attending physicians' rounds over weekends.
Document 18--dated September 1995, and entitled "Minutes of
meeting re: action plan for three shifts"--has no named author.
This document, actually a series of three substantially identical
two-page documents, apparently represents the minutes from three
nursing "MINI-MEETING[S]" for three nursing shifts. This
document was signed and dated by several persons, probably nurses
at the Hospital who attended these meetings.
Document 20--dated September 7, 1995, and entitled
"Memorandum to staff re: action plan"--was authored by Dr. Frank
Brown, Director of the Hospital's Division of Respiratory Care.
This document, addressed to the "RESPIRATORY THERAPY STAFF,"
describes the corrective action initiated by the Respiratory Care
Division to provide safe ventilation.
Document 22 is the same as document 5/attachment 3.
Document 26 is the same as document 5/attachment 4.
The trial court made a series of rulings regarding these
documents, allowing the Hospital to supplement its privilege log
and to amend its supporting affidavits.
The 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.
Goodman's affidavit described the HOC as "*** a committee of
administrative personnel and senior attending physicians ***
responsible for the various clinical departments' oversight
functions that reviews significant patient care and systems
issues ***." The HOC "*** meets twice monthly and ad hoc for the
purpose of reviewing patient care, systems issues and incidents
in order to reduce patient mortality and morbidity ***." Goodman
said the HOC "*** reports its findings and recommendations for
corrective action to the Cook County Hospital Quality Assurance
Committee [QAC]." Goodman said the incident reports in Macon's
case were forwarded to the QAC.
According to Goodman, the incident reports "*** were
prepared at the request of the [HOC]." Goodman finally noted:
"*** [T]hese [incident] reports were an integral part
of the quality assurance process and part of the
multiple Committee review process ***."
Karno's first affidavit echoed Goodman's affidavit, adding
only:
"That 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."
Karno's second affidavit mirrored her first affidavit,
except it identified the incident and situational reports in
Macon's case as documents 1-5 in the Hospital's privilege log.
Karno's third affidavit did not substantively address the
disputed documents, and only briefly mentioned documents 20 and
22: "*** Documents 19, 20 and 22 were the attachments to Document
21."
Karno's fourth affidavit addressed some of the disputed
documents. After describing her job as attorney for the
Hospital, Karno said:
"*** [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." (Emphasis added.)
Karno said, "I reviewed Documents 1, 2, 3, 4 and 5 and
reported to the [HOC] regarding my legal opinions based on these
Documents." (Emphasis added.) Karno also said:
"*** the [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."
This 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.
The trial court made a complete ruling for each disputed
document on July 8, 1997. The trial court addressed each
document separately, ordering production.
After 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.
DECISION
The 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).
The 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).
Here, 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's
medical study. The question before us is whether the trial
judge's 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's discovery request.
1. The Medical Studies Act Privilege
The Medical Studies Act (the Act) provides:
"Information obtained. All information, interviews,
reports, statements, memoranda, recommendations,
letters of reference or other third party confidential
assessments of a health care practitioner's
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 ***." 735 ILCS 5/8-2101 (West Supp.
1997).
The Act further provides:
"Admissibility 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." 735 ILCS 5/8-2102 (West 1992).
"The purpose of this legislation is not to facilitate the
prosecution of malpractice cases." Jenkins v. Wu, 102 Ill. 2d 468, 479, 468 N.E.2d 1162 (1984). "The 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." Niven, 109 Ill. 2d at 366. "The
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." Richter v. Diamond, 108 Ill. 2d 265, 269, 483 N.E.2d 1256 (1985).
The 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)("generated during the course
of the peer-review process"); Sakosko v. Memorial Hospital, 167
Ill. App. 3d 842, 847, 522 N.E.2d 273 (1988)("initiated and used
by a committee").
The Hospital divides the disputed documents into two groups:
"incident or situational reports and information reflecting the
HOC process." 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 pre-deliberation and post-deliberation
categories.
The 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).
The Illinois Supreme Court's latest pronouncement on the Act
supports this rule. 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's obstetricians.
The child's birth defects allegedly resulted from problems with
the mother's anesthesia. After the child's birth, the hospital's
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's 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.
The court held: "*** where the committee is one comprised of
the hospital's medical staff, the committee must be involved in
the peer-review process before the privilege will attach."
Roach, 157 Ill. 2d at 40. The court reasoned:
"If 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's records." Roach, 157 Ill. 2d at 41.
The 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: "*** the
statute was never intended to shield hospitals from potential
liability." Roach, 157 Ill. 2d at 42 (citing Marsh, 166 Ill.
App. 3d at 76).
Documents 2 and 4 are both form documents prepared close in
time to Macon's 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's inpatient notes. Further, while document 2 did not list
a specific destination, document 4 said "RETURN TO DEPT. OF RISK
MANAGEMENT." Were Documents 2 and 4 prepared before the HOC,
which meets "twice monthly and ad hoc," began gathering
information? There is no way to tell. Neither Goodman's nor
Karno's affidavits tell us when the HOC met to discuss Macon's
accident. Nor do we know when the HOC began or ended its review.
Goodman's only affidavit, standing alone, does not establish
the privilege for documents 2 and 4. Goodman said: "*** [T]he
incident reports in this case were prepared at the request of the
[HOC]." Karno's first affidavit repeated this statement.
Karno's second affidavit also repeated this statement and added,
"*** incident and situational reports were prepared regarding
this case at the request of the [HOC]." 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.
Karno's third affidavit did not discuss documents 2 and 4,
but in her fourth affidavit Karno said: "*** [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." (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.
While Goodman and Karno make identical conclusory statements
in their first affidavits, Karno's account changes in her fourth
attempt to support the Hospital's privilege. She initially said
the HOC specifically requested incident reports, including
documents 2 and 4. Later, she said she requested reports "such
as" documents 2 and 4 to help her formulate legal opinions.
Goodman's affidavit and Karno's fourth affidavit contradict each
other. And the Hospital has supplied no affidavits from Jose,
Allegre, and Moravitz--the authors of documents 2 and 4, the
people in the best position to resolve this conflict.
The trial court found the documents belie Karno's
implication that she requested these specific documents, as well
as Goodman's assertion the HOC requested these documents.
The 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's admission and later
presented to, and used by, a hospital's peer-review committee
fell within the privilege. Flannery, 176 Ill. App. 3d at 658.
While Flannery is authority for the Hospital's position, its
vitality was drained by Roach. See Roach, 157 Ill. 2d at 41
("earlier-acquired information" furnished to peer-review
committee is not cloaked by the Act's privilege).
We 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:
"*** [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."
See Dunkin v. Silver Cross Hospital, 215 Ill. App. 3d 65, 68, 573 N.E.2d 848 (1991)("The reports are the same kind of incident
reports which any business might have.")
The Act also does not protect against disclosure of the
peer-review committee's 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).
Documents 5 and 20 (which also encompass documents 22 and
26) demonstrate the Hospital's responses to, and recommendations
after, Macon's accident. These documents either describe
ventilator problems or prescribe measures to solve these
problems.
Although these documents had a wide audience, certainly
wider than the HOC committee, disclosure does not waive the Act's
privilege. See 735 ILCS 5/8-2102; Sakosko, 167 Ill. App. 3d at
846. The trial judge was mistaken when she implied disclosure
waives the Act's 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.
These documents were distributed beyond the HOC: nine
doctors and "All Department Chairpersons" (document 5/attachment
3); "PHYSICIANS," "NURSES," "RESPIRATORY THERAPISTS," and
"PHARMACY" (document 5/attachment 4); "MICU Attendings" (document
5/attachment 5); and "RESPIRATORY THERAPY STAFF" (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--along with their
descriptive/prescriptive content--is evidence they were not
generated during the peer-review process, but were created as a
result of that process. The documents did not "belong" to the
HOC. Grandi, 261 Ill. App. 3d at 556.
Although the Hospital concedes documents 5 and 20 represent
the results of the HOC's 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, No. 1-
96-4072 (June 1, 1998), equating the privileged protocols in Doe
with the HOC's responses and recommendations here.
We read Doe differently. In Doe, we held the protocols
governing a medical study were privileged under the Act. In that
context, a protocol is "*** the plan of a scientific or medical
experiment or treatment ***." Webster's Third International
Dictionary 1824 (1981). 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.
Regarding document 18, the trial court denied the Hospital's
privilege claim because the Hospital failed to offer any support
for a privilege. None of the affidavits mentioned this document.
When 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 the hospital's
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.
The Hospital seems to be saying its HOC can invoke the Act's
protection by declaring in advance that all incident documents
prepared by the Hospital staff are part of the peer-review
process. The Hospital's 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's own medical records.
We believe a trial court's 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 "confidential" 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.
In this case, every piece of paper at issue has been stamped
"confidential." 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.
We conclude the trial court did not abuse its discretion
when it found the Act's privilege did not justify refusal to
produce the contested documents.
2. The Attorney-Client Privilege
Supreme Court Rule 201(b)(2) provides:
"All 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's
attorney." 134 Ill. 2d R. 201(b)(2).
"The 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." In re Grand Jury January
246, 272 Ill. App. 3d 991, 996, 651 N.E.2d 696
(1996)(citing People v. Adam, 51 Ill. 2d 46, 48, 280 N.E.2d 205 (1972)).
See also Sakosko, 167 Ill. App. 3d at 847.
This 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:
"(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." Rapps v.
Keldermans, 257 Ill. App. 3d 205, 212, 628 N.E.2d 818
(1993).
In 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.
To support its contention, the Hospital offers Karno's
fourth affidavit, in which she said: she served as the Hospital's
attorney, investigating incidents and offering legal advice to
the HOC; she requested "reports, such as" documents 2 and 4 "be
prepared for the purpose of rendering legal opinions" to the HOC;
and she reviewed documents 2 and 4 in rendering her legal
opinions.
Karno's affidavit fails to support the attorney-client
privilege.
Document 2--"Situational Report"--was prepared by Lisanna
Jose, a respiratory therapist at the hospital. Document 4--
"Incident Report"--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 "RETURN
TO DEPT. OF RISK MANAGEMENT."
Karno 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's 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.
Karno's 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, "Any
employee who desires to retain additional counsel may do so at
his or her own expense." Cook County, Ill. Ordinance 22-22
(1980).
Additionally, documents 2 and 4 were not addressed to or
prepared by Karno. Document 2 does not indicate an addressee,
and Document 4 lists "DEPT. OF RISK MANAGEMENT" as the intended
addressee. Karno's affidavit does not describe this risk
management department or her role in it.
In 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:
"The 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's
legal counsel." Sakosko, 167 Ill. App. 3d at 847.
The 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.
Similarly, documents 2 and 4 do not seek legal advice. In
other words:
"The [documents] are not addressed to or prepared by
[the Hospital's] attorney. They are not memoranda of
communications to, or advice from, defendant's
attorney. Instead, the exhibits contain primarily
factual statements relating to plaintiff['s] medical
conditions and prognoses." Sakosko, 167 Ill. App. 3d
at 847.
Finally, Dr. Campos referred to document 4 in Macon's
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.
Karno's affidavit also fails to support the insurer-insured
privilege.
As a self-insurer, the Hospital has "*** the exclusive right
to defend any action or claim with counsel of its own choosing."
Cook County, Ill., Ordinance 22-22 (1980). The Hospital also has
a duty to indemnify its employees. See Cook County, Ill.,
Ordinance 22-21 (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.
In Buckman, a self-insurer hospital asserted the insurer-
insured privilege with regard to communications between a nurse
and the hospital's 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's attorney had acted directly as the nurse's attorney in
rendering legal advice and services. Buckman, 272 Ill. App. 3d
at 1066.
Here, 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:
"*** the 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." (Emphasis
added.) Ryan, 30 Ill. 2d at 461.
See Rapps, 257 Ill. App. 3d at 212; Hyams, 225 Ill. App. 3d at
257; Claxton, 201 Ill. App. 3d at 235-36.
Despite Karno's standing order to the Hospital staff
requesting "reports, such as" documents 2 and 4, Karno stated she
requested these documents "*** for the purpose of rendering legal
opinions to the [HOC] regarding incidents such as this
occurrence." The Hospital has not shown these documents were
drafted by Jose, Allegre, and Moravitz in order to protect their
own interests.
The trial court correctly overruled the Hospital's
objections based on the attorney-client privilege, and its
corollary, the insurer-insured privilege.
3. Contempt
"A contempt citation is an appropriate method for testing
the propriety of a discovery order." Flannery, 176 Ill. App. 3d
at 655. However, as noted by the trial court, the Hospital was
not contemptuous of the court's authority. The Hospital's
refusal was made in good faith. It merely sought appellate
review of its unsuccessful assertions of privilege.
The 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).
CONCLUSION
The trial court correctly overruled Cook County Hospital's
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.
REMANDED.
CERDA, P.J. and McNAMARA, J., concur.
July 30, 1998
No. 1-97-3233
CHICAGO TRUST COMPANY, as guardian of ) APPEAL FROM THE
the Estate of DONALD MACON, a disabled ) CIRCUIT COURT OF
person, ) COOK COUNTY.
)
Plaintiff-Appellee, )
)
v. )
)
COOK COUNTY HOSPITAL, a municipal )
corporation; COUNTY OF COOK, a )
municipal corporation and body political; )
BOARD OF COMMISSIONERS OF COOK COUNTY, a )
municipal corporation; PURITAN- )
BENNETT CORPORATION, a foreign )
corporation; and HUDSON RESPIRATORY )
CARE, INC., a foreign corporation, )
)
Defendants, )
)
and the OFFICE OF THE STATE'S ATTORNEY )
OF COOK COUNTY, ) HONORABLE
) LYNN M. EGAN,
Contemnor-Appellant. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
In this case we review Cook County Hospital's 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.
Cook County Hospital (the Hospital) appeals the trial
court's 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
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.
FACTS
Donald Macon (Macon) was admitted to Cook County Hospital
(the 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 non-verbal, non-responsive
quadriplegic.
Chicago Trust Company (Chicago Trust) filed a medical
malpractice/products liability complaint on behalf of Macon's
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.
During 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 5/8-2101 et seq. (West 1992 & Supp. 1997)) and the
attorney-client privilege (see 134 Ill. 2d R. 201(b)(2)).
Of these 28 documents, the trial court eventually ordered
the Hospital to produce 13 of them. The Hospital later waived
its privilege claims on four of these 13 documents. The parties
dispute nine documents, two of which are duplicates.
Document 2--dated August 18, 1995, and entitled "Situational
Report"--was authored by Lisanna Jose, a respiratory therapist at
the Hospital. This document describes Jose's conduct on the date
of Macon's accident.
Document 4--dated August 19, 1995, and entitled "Incident
Report"--was authored by Corazon Allegre, a registered nurse at
the Hospital, and an unidentified person named Maureen Moravitz.
This document describes Allegre's conduct on the date of Macon's
accident and orders the person completing it to "RETURN TO DEPT.
OF RISK MANAGEMENT." Macon's inpatient notes, written by a Dr.
Campos, state: "Aware of incident report and accident occurred
last night."
Document 5/attachment 3--dated September 5, 1995, and
entitled "MEMORANDUM RE: VENTILATOR CIRCUITS WITH IN-LINE
NEBULIZERS"--was authored by Dr. Phillip Bodenstab, the
Hospital's Medical Director of Respiratory Care. This document,
addressed to nine doctors and "All Department Chairpersons,"
notifies its recipients that ventilators may disconnect during
certain procedures and advises preventative measures.
Document 5/attachment 4--dated August 30, 1995, and entitled
"GUIDELINES WHEN USING PARALYTIC AGENTS FOR MECHANICAL
VENTILATION"--was authored by Dr. Corey Franklin, the Hospital's
Director of MICU. This document, addressed to physicians,
nurses, respiratory therapists, and pharmacists, provides tips
for patient care during ventilation.
Document 5/attachment 5--dated September 6, 1995,--was
authored by Dr. Franklin. This document, addressed "To: MICU
Attendings," S. Karno, and B. Reilly, reviews the scheduling
rules governing attending physicians' rounds over weekends.
Document 18--dated September 1995, and entitled "Minutes of
meeting re: action plan for three shifts"--has no named author.
This document, actually a series of three substantially identical
two-page documents, apparently represents the minutes from three
nursing "MINI-MEETING[S]" for three nursing shifts. This
document was signed and dated by several persons, probably nurses
at the Hospital who attended these meetings.
Document 20--dated September 7, 1995, and entitled
"Memorandum to staff re: action plan"--was authored by Dr. Frank
Brown, Director of the Hospital's Division of Respiratory Care.
This document, addressed to the "RESPIRATORY THERAPY STAFF,"
describes the corrective action initiated by the Respiratory Care
Division to provide safe ventilation.
Document 22 is the same as document 5/attachment 3.
Document 26 is the same as document 5/attachment 4.
The trial court made a series of rulings regarding these
documents, allowing the Hospital to supplement its privilege log
and to amend its supporting affidavits.
The 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.
Goodman's affidavit described the HOC as "*** a committee of
administrative personnel and senior attending physicians ***
responsible for the various clinical departments' oversight
functions that reviews significant patient care and systems
issues ***." The HOC "*** meets twice monthly and ad hoc for the
purpose of reviewing patient care, systems issues and incidents
in order to reduce patient mortality and morbidity ***." Goodman
said the HOC "*** reports its findings and recommendations for
corrective action to the Cook County Hospital Quality Assurance
Committee [QAC]." Goodman said the incident reports in Macon's
case were forwarded to the QAC.
According to Goodman, the incident reports "*** were
prepared at the request of the [HOC]." Goodman finally noted:
"*** [T]hese [incident] reports were an integral part
of the quality assurance process and part of the
multiple Committee review process ***."
Karno's first affidavit echoed Goodman's affidavit, adding
only:
"That 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."
Karno's second affidavit mirrored her first affidavit,
except it identified the incident and situational reports in
Macon's case as documents 1-5 in the Hospital's privilege log.
Karno's third affidavit did not substantively address the
disputed documents, and only briefly mentioned documents 20 and
22: "*** Documents 19, 20 and 22 were the attachments to Document
21."
Karno's fourth affidavit addressed some of the disputed
documents. After describing her job as attorney for the
Hospital, Karno said:
"*** [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." (Emphasis added.)
Karno said, "I reviewed Documents 1, 2, 3, 4 and 5 and
reported to the [HOC] regarding my legal opinions based on these
Documents." (Emphasis added.) Karno also said:
"*** the [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."
This 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.
The trial court made a complete ruling for each disputed
document on July 8, 1997. The trial court addressed each
document separately, ordering production.
After 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.
DECISION
The 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).
The 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).
Here, 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's
medical study. The question before us is whether the trial
judge's 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's discovery request.
1. The Medical Studies Act Privilege
The Medical Studies Act (the Act) provides:
"Information obtained. All information, interviews,
reports, statements, memoranda, recommendations,
letters of reference or other third party confidential
assessments of a health care practitioner's
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 ***." 735 ILCS 5/8-2101 (West Supp.
1997).
The Act further provides:
"Admissibility 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." 735 ILCS 5/8-2102 (West 1992).
"The purpose of this legislation is not to facilitate the
prosecution of malpractice cases." Jenkins v. Wu, 102 Ill. 2d 468, 479, 468 N.E.2d 1162 (1984). "The 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." Niven, 109 Ill. 2d at 366. "The
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." Richter v. Diamond, 108 Ill. 2d 265, 269, 483 N.E.2d 1256 (1985).
The 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)("generated during the course
of the peer-review process"); Sakosko v. Memorial Hospital, 167
Ill. App. 3d 842, 847, 522 N.E.2d 273 (1988)("initiated and used
by a committee").
The Hospital divides the disputed documents into two groups:
"incident or situational reports and information reflecting the
HOC process." 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 pre-deliberation and post-deliberation
categories.
The 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).
The Illinois Supreme Court's latest pronouncement on the Act
supports this rule. 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's obstetricians.
The child's birth defects allegedly resulted from problems with
the mother's anesthesia. After the child's birth, the hospital's
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's 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.
The court held: "*** where the committee is one comprised of
the hospital's medical staff, the committee must be involved in
the peer-review process before the privilege will attach."
Roach, 157 Ill. 2d at 40. The court reasoned:
"If 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's records." Roach, 157 Ill. 2d at 41.
The 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: "*** the
statute was never intended to shield hospitals from potential
liability." Roach, 157 Ill. 2d at 42 (citing Marsh, 166 Ill.
App. 3d at 76).
Documents 2 and 4 are both form documents prepared close in
time to Macon's 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's inpatient notes. Further, while document 2 did not list
a specific destination, document 4 said "RETURN TO DEPT. OF RISK
MANAGEMENT." Were Documents 2 and 4 prepared before the HOC,
which meets "twice monthly and ad hoc," began gathering
information? There is no way to tell. Neither Goodman's nor
Karno's affidavits tell us when the HOC met to discuss Macon's
accident. Nor do we know when the HOC began or ended its review.
Goodman's only affidavit, standing alone, does not establish
the privilege for documents 2 and 4. Goodman said: "*** [T]he
incident reports in this case were prepared at the request of the
[HOC]." Karno's first affidavit repeated this statement.
Karno's second affidavit also repeated this statement and added,
"*** incident and situational reports were prepared regarding
this case at the request of the [HOC]." 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.
Karno's third affidavit did not discuss documents 2 and 4,
but in her fourth affidavit Karno said: "*** [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." (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.
While Goodman and Karno make identical conclusory statements
in their first affidavits, Karno's account changes in her fourth
attempt to support the Hospital's privilege. She initially said
the HOC specifically requested incident reports, including
documents 2 and 4. Later, she said she requested reports "such
as" documents 2 and 4 to help her formulate legal opinions.
Goodman's affidavit and Karno's fourth affidavit contradict each
other. And the Hospital has supplied no affidavits from Jose,
Allegre, and Moravitz--the authors of documents 2 and 4, the
people in the best position to resolve this conflict.
The trial court found the documents belie Karno's
implication that she requested these specific documents, as well
as Goodman's assertion the HOC requested these documents.
The 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's admission and later
presented to, and used by, a hospital's peer-review committee
fell within the privilege. Flannery, 176 Ill. App. 3d at 658.
While Flannery is authority for the Hospital's position, its
vitality was drained by Roach. See Roach, 157 Ill. 2d at 41
("earlier-acquired information" furnished to peer-review
committee is not cloaked by the Act's privilege).
We 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:
"*** [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."
See Dunkin v. Silver Cross Hospital, 215 Ill. App. 3d 65, 68, 573 N.E.2d 848 (1991)("The reports are the same kind of incident
reports which any business might have.")
The Act also does not protect against disclosure of the
peer-review committee's 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).
Documents 5 and 20 (which also encompass documents 22 and
26) demonstrate the Hospital's responses to, and recommendations
after, Macon's accident. These documents either describe
ventilator problems or prescribe measures to solve these
problems.
Although these documents had a wide audience, certainly
wider than the HOC committee, disclosure does not waive the Act's
privilege. See 735 ILCS 5/8-2102; Sakosko, 167 Ill. App. 3d at
846. The trial judge was mistaken when she implied disclosure
waives the Act's 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.
These documents were distributed beyond the HOC: nine
doctors and "All Department Chairpersons" (document 5/attachment
3); "PHYSICIANS," "NURSES," "RESPIRATORY THERAPISTS," and
"PHARMACY" (document 5/attachment 4); "MICU Attendings" (document
5/attachment 5); and "RESPIRATORY THERAPY STAFF" (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--along with their
descriptive/prescriptive content--is evidence they were not
generated during the peer-review process, but were created as a
result of that process. The documents did not "belong" to the
HOC. Grandi, 261 Ill. App. 3d at 556.
Although the Hospital concedes documents 5 and 20 represent
the results of the HOC's 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, No. 1-
96-4072 (June 1, 1998), equating the privileged protocols in Doe
with the HOC's responses and recommendations here.
We read Doe differently. In Doe, we held the protocols
governing a medical study were privileged under the Act. In that
context, a protocol is "*** the plan of a scientific or medical
experiment or treatment ***." Webster's Third International
Dictionary 1824 (1981). 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.
Regarding document 18, the trial court denied the Hospital's
privilege claim because the Hospital failed to offer any support
for a privilege. None of the affidavits mentioned this document.
When 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 the hospital's
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.
The Hospital seems to be saying its HOC can invoke the Act's
protection by declaring in advance that all incident documents
prepared by the Hospital staff are part of the peer-review
process. The Hospital's 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's own medical records.
We believe a trial court's 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 "confidential" 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.
In this case, every piece of paper at issue has been stamped
"confidential." 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.
We conclude the trial court did not abuse its discretion
when it found the Act's privilege did not justify refusal to
produce the contested documents.
2. The Attorney-Client Privilege
Supreme Court Rule 201(b)(2) provides:
"All 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's
attorney." 134 Ill. 2d R. 201(b)(2).
"The 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." In re Grand Jury January
246, 272 Ill. App. 3d 991, 996, 651 N.E.2d 696
(1996)(citing People v. Adam, 51 Ill. 2d 46, 48, 280 N.E.2d 205 (1972)).
See also Sakosko, 167 Ill. App. 3d at 847.
This 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:
"(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." Rapps v.
Keldermans, 257 Ill. App. 3d 205, 212, 628 N.E.2d 818
(1993).
In 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.
To support its contention, the Hospital offers Karno's
fourth affidavit, in which she said: she served as the Hospital's
attorney, investigating incidents and offering legal advice to
the HOC; she requested "reports, such as" documents 2 and 4 "be
prepared for the purpose of rendering legal opinions" to the HOC;
and she reviewed documents 2 and 4 in rendering her legal
opinions.
Karno's affidavit fails to support the attorney-client
privilege.
Document 2--"Situational Report"--was prepared by Lisanna
Jose, a respiratory therapist at the hospital. Document 4--
"Incident Report"--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 "RETURN
TO DEPT. OF RISK MANAGEMENT."
Karno 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's 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.
Karno's 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, "Any
employee who desires to retain additional counsel may do so at
his or her own expense." Cook County, Ill. Ordinance 22-22
(1980).
Additionally, documents 2 and 4 were not addressed to or
prepared by Karno. Document 2 does not indicate an addressee,
and Document 4 lists "DEPT. OF RISK MANAGEMENT" as the intended
addressee. Karno's affidavit does not describe this risk
management department or her role in it.
In 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:
"The 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's
legal counsel." Sakosko, 167 Ill. App. 3d at 847.
The 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.
Similarly, documents 2 and 4 do not seek legal advice. In
other words:
"The [documents] are not addressed to or prepared by
[the Hospital's] attorney. They are not memoranda of
communications to, or advice from, defendant's
attorney. Instead, the exhibits contain primarily
factual statements relating to plaintiff['s] medical
conditions and prognoses." Sakosko, 167 Ill. App. 3d
at 847.
Finally, Dr. Campos referred to document 4 in Macon's
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.
Karno's affidavit also fails to support the insurer-insured
privilege.
As a self-insurer, the Hospital has "*** the exclusive right
to defend any action or claim with counsel of its own choosing."
Cook County, Ill., Ordinance 22-22 (1980). The Hospital also has
a duty to indemnify its employees. See Cook County, Ill.,
Ordinance 22-21 (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.
In Buckman, a self-insurer hospital asserted the insurer-
insured privilege with regard to communications between a nurse
and the hospital's 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's attorney had acted directly as the nurse's attorney in
rendering legal advice and services. Buckman, 272 Ill. App. 3d
at 1066.
Here, 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:
"*** the 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." (Emphasis
added.) Ryan, 30 Ill. 2d at 461.
See Rapps, 257 Ill. App. 3d at 212; Hyams, 225 Ill. App. 3d at
257; Claxton, 201 Ill. App. 3d at 235-36.
Despite Karno's standing order to the Hospital staff
requesting "reports, such as" documents 2 and 4, Karno stated she
requested these documents "*** for the purpose of rendering legal
opinions to the [HOC] regarding incidents such as this
occurrence." The Hospital has not shown these documents were
drafted by Jose, Allegre, and Moravitz in order to protect their
own interests.
The trial court correctly overruled the Hospital's
objections based on the attorney-client privilege, and its
corollary, the insurer-insured privilege.
3. Contempt
"A contempt citation is an appropriate method for testing
the propriety of a discovery order." Flannery, 176 Ill. App. 3d
at 655. However, as noted by the trial court, the Hospital was
not contemptuous of the court's authority. The Hospital's
refusal was made in good faith. It merely sought appellate
review of its unsuccessful assertions of privilege.
The 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).
CONCLUSION
The trial court correctly overruled Cook County Hospital's
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.
REMANDED.
CERDA, P.J. and McNAMARA, J., concur.
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