2020 IL App (1st) 190099-U No. 1-19-0099 Fourth Division January 16, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
) SAM BECCARA, ) ) Plaintiff-Appellee, ) ) v. ) ) DIALYSIS CENTERS OF AMERICA-ILLINOIS, INC. ) Appeal from the Circuit Court d/b/a Fresenius Medical Care Mokena, a/k/a ) of Cook County. Fresenius Kidney Care Mokena; VALUE INDUSTRIAL ) PARTNERS, LLC; VIP MDG, LLC; and ARAMARK ) No. 17 L 002882 UNIFORM SERVICES (MIDWEST) LLC, ) ) The Honorable Defendants ) Moira Johnson, ) Judge Presiding. (Dialysis Centers of America-Illinois, Inc. d/b/a ) Fresenius Medical Care Mokena, a/k/a Fresenius Kidney ) Care Mokena, ) Defendant-Appellant, ) ) Anthony J. Longo, ) Contemnor-Appellant). ) ) ______________________________________________________________________________
PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Lampkin and Burke concurred in the judgment.
ORDER No. 1-19-0099
¶1 Held: (1) The trial court’s order requiring production of an “Adverse Event Report” was not against the manifest weight of the evidence, where the trial court properly found that the document was not shielded by the Medical Studies Act (735 ILCS 5/8-2101 (West 2016)). (2) The trial court’s order requiring production of a “Notice of Potential Professional General Liability Claim Form” was proper, where defendant failed to establish that the form was transmitted to the insurance company.
¶2 The instant interlocutory appeal concerns the question of whether two documents should
have been produced in discovery in the course of litigation concerning plaintiff Sam Beccara’s
fall in the entryway of the offices of defendant, Dialysis Centers of America-Illinois. Defendant
claimed that they are privileged and, after the trial court ordered defendant to produce the
documents, defendant refused. The trial court entered a friendly contempt order and imposed
a $100 fine to permit appellate review and, for the reasons that follow, we affirm the trial
court’s order for the production of the documents and vacate the contempt finding.
¶3 BACKGROUND
¶4 On March 20, 2017, plaintiff filed a complaint 1 in which he alleged that defendant owed a
kidney dialysis center in Mokena, Illinois, which plaintiff visited for dialysis on March 15,
2017. A rug had been placed on the ground in the entryway to the center by defendant’s
employees, but the rug was not laid flat on the floor, which caused plaintiff to fall as he walked
over the rug. Plaintiff alleged that defendant’s negligence caused plaintiff “injuries of a
personal and pecuniary nature.”
¶5 The parties engaged in discovery, during the course of which plaintiff issued a number of
written discovery requests. 2 Defendant objected to several interrogatories and requests to
produce, leading plaintiff to file a motion to compel on March 2, 2018. Specifically, as relevant
1 The complaint was amended three times, but the relevant allegations remained the same as in the original complaint. 2 The primary documents at issue on appeal were filed under seal. Consequently, we discuss only the details necessary for resolution of the issues on appeal.
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to the instant appeal, in response to an interrogatory asking if there were any privileged
documents that would not be produced, defendant responded that “[f]ollowing the incident, an
Adverse Event Report was created pursuant to the auspices of the Illinois Medical Studies Act
[(735 ILCS 5/8-2101 (West 2016))]. As such, the document is privileged and will not be
produced in this litigation.” Defendant also produced a privilege log listing the adverse event
report as privileged under the Medical Studies Act. In the motion to compel, plaintiff argued
that, even assuming that dialysis centers were covered by the Medical Studies Act, the report
was not privileged because it did not fall within the scope of the Medical Studies Act.
¶6 In response to the motion to compel, as relevant to the instant appeal, defendant claimed
that the adverse event report was sent to defendant’s quality assessment improvement (QAI)
committee and was privileged under the Medical Studies Act because the report was generated
as part of the peer review process for the purpose of improving the quality of patient care at
the center. On April 6, 2018, the trial court ordered defendant to respond to several of plaintiff’s
discovery requests, and also reserved ruling on the applicability of the Medical Studies Act,
inviting the parties to submit additional briefing on the issue.
¶7 Defendant filed a surresponse to plaintiff’s motion to compel, again arguing that the
adverse event report was privileged under the Medical Studies Act. Attached to the surresponse
was an April 30, 2018, affidavit from Ritchie Quinones, in which he averred that he was the
clinical manager at the dialysis center and that, in that capacity, he was familiar with the peer
review activities that were undertaken with regard to the care and treatment rendered to
plaintiff at the center. Quinones averred that the adverse event report “was created by Mary
Tamayo, R.N. as a delegate of the dialysis clinic’s QAI (Quality Assessment Improvement)
Committee as part of the peer review that was undertaken by me and the QAI Committee with
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regard to the care and treatment rendered to [plaintiff] at [the dialysis center] on March 15,
2017.” Quinones averred that the peer review investigation was conducted due to plaintiff’s
“fall event” and that “[p]eer review was initiated immediately after this specific incident
occurred” on March 15, 2017. Quinones averred that the information contained in the adverse
event report was gathered through the peer review investigation, including “interviews of the
relevant personnel conducted by Nurse Tamayo as a delegate of the QAI Committee.”
Quinones averred that adverse event reports were maintained by the clinic manager and the
QAI committee and that they “are used in the course of internal quality control, for medical
study for the purpose of reducing morbidity or mortality, and for improving the quality of
patient care at [the dialysis center].” Quinones also averred that the documents were intended
to be confidential and are used by the QAI committee “to assure quality in patient care and
internal quality control.” Finally, Quinones averred that, in his capacity as clinical manager,
he was “also aware that [his] employer contracts with health insurance providers and other
health care entities or facilities in order to provide care and benefits to our patients.”
¶8 In his surreply in support of his motion to compel, plaintiff argued that the Medical Studies
Act did not apply to dialysis centers and, even if it did, the adverse event report would not fall
within the scope of the privilege. Attached to the surreply was the transcript of the discovery
deposition of Quinones, in which he testified that he is a registered nurse and is employed by
defendant as the clinical manager of the dialysis center at which plaintiff fell. Quinones
testified that, in March 2017, the dialysis center employed two nurses, five patient care
technicians, a dietician, a social worker, and a secretary, in addition to Quinones as the clinical
manager; the center did not employ any physicians. Quinones testified that between 7 and 8
p.m. on the evening of plaintiff’s fall, Tamayo, the nurse on duty, called Quinones at home to
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inform him of a “fall incident.” Tamayo did not give him any details, but Quinones “told them
to start doing the peer review of the incident.” Quinones testified that Tamayo informed him
that plaintiff had fallen on his way into the center and that he had not yet received any patient
care at the time of the fall. Quinones testified that he instructed Tamayo to gather information
and document it in an adverse event report “[b]ecause that’s how we do our peer review. The
first thing is [to] collect the data.” The next day, Quinones contacted the “peer team,” which
included the QAI committee, to inform them of the fall; Quinones contacted defendant’s
medical director, defendant’s director of operation, the regional vice-president, the clinical
quality manager, and an individual with the clinical services department whose name he could
not recall. Quinones testified that the only member of the QAI committee who was a physician
was the medical director. The adverse event report was discussed at the next QAI committee
meeting, which was in April.
¶9 Quinones also testified that there was a different report that was sent to the health, safety,
and risk management department; Quinones filled out that form personally. Plaintiff’s counsel
asked defendant’s counsel if the report had been produced in discovery, and defendant’s
counsel responded that the document was a “Notice of Potential Professional General Liability
Claim Form” (the claim form) that was sent to the insurance company; defendant’s counsel
indicated that defendant’s privilege log would be amended to include the claim form, which
defense counsel had only received the prior week.
¶ 10 When asked about his statement in his affidavit concerning contracts with health insurance
providers and facilities, Quinones testified that “we have contracted with our doctors and our
facility. We have contracted with other companies, like the laboratories.”
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¶ 11 After Quinones’ deposition, defendant filed amended responses to plaintiff’s requests to
produce, adding the claim form as a privileged document based on the insurer-insured privilege
and attaching an amended privilege log that included the claim form.
¶ 12 On August 17, 2018, plaintiff filed an amended motion to compel, seeking production of
the adverse event report and the claim form. With respect to the claim form, as relevant to the
instant appeal, plaintiff argued that the insurer-insured privilege did not apply because the
document was not a communication to an insurer. Instead, Quinones had testified that he
prepared the form and submitted it to defendant’s corporate health, safety, and risk
management department.
¶ 13 On August 23, 2018, after reviewing both forms in camera, the trial court entered an order
requiring defendant to produce the adverse event report, finding that the report was not
privileged under the Medical Studies Act. The court found that the report “is merely an incident
report. The fact that the person who is the witness claims that he told the nurse to make a report,
which was merely a business report done in the ordinary course of business and decide[s] to
say that at that point, a peer review process has begun doesn’t change the facts in this particular
case. From what I can see, the nurse called in to her supervisor that an incident occurred, and
this is merely an incident report.” The trial court also ordered defendant to “provide factual
support” for its claim of privilege with respect to the claim form.
¶ 14 On September 6, 2018, defendant filed a motion indicating that it would not comply with
the court’s order requiring production of the adverse event report and requesting a friendly
contempt finding to permit it to appeal the court’s order. On the same day, defendant produced
an additional affidavit from Quinones, in which Quinones averred that he completed the claim
form on March 16, 2017, and completed the form “for purposes of transmitting the information
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contained therein in confidence to Fresenius Medical Care North America’s Corporate Health,
Safety & Risk Management Department for the protection of the *** dialysis clinic.” After
completing the form, Quinones faxed the form to the corporate health, safety, and risk
management department. Quinones further averred that, in his capacity as clinical manager of
the dialysis clinic, “I am also aware that Notice of Potential Professional/General Liability
Claim Forms, such as my March 16, 2017 Form, are shared by Fresenius Medical Care North
America’s Corporate Health, Safety & Risk Management Department with outside insurance
where outside insurance is involved and has a duty to defend a potential professional/general
liability claim.” Finally, Quinones averred that these documents were intended to be
confidential and were stored separately from patients’ medical charts to ensure confidentiality.
¶ 15 On October 1, 2018, plaintiff filed an amended motion to compel, arguing that the claim
form was not privileged under the insurer-insured privilege. As relevant to the instant appeal,
plaintiff argued that Quinones was not within defendant’s “control group,” that defendant had
not established that the insurer had a duty to defend the lawsuit, and that the claim form was
transmitted to defendant’s corporate health, safety, and risk management department, not to an
insurer.
¶ 16 In response, defendant claimed that it had answered written discovery explicitly identifying
that it was covered by insurance for plaintiff’s fall under a liability policy issued by Continental
Casualty Company, and that it had produced the policy declaration page for that insurance
coverage. Defendant also claimed that the insurer had a duty to defend, as evidenced by the
fact that it had retained counsel to represent defendant and had not filed a reservation of rights
or a declaratory judgment lawsuit; defendant also submitted the entire insurance policy to the
court for an in camera review. Finally, defendant claimed that Quinones transmitted the
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document to the corporate health, safety, and risk management department with the expectation
that it would be transmitted to the insurance company, so it qualified as a communication with
the insurer.
¶ 17 On November 14, 2018, the trial court entered an order requiring defendant to produce the
claim form. On December 12, 2018, defendant amended its motion for a finding of friendly
contempt to add the trial court’s ruling on the claim form. On December 13, 2018, the trial
court entered an order finding defendant in friendly contempt for refusal to comply with its
discovery orders in order to facilitate appeal and imposed a fine of $100. This appeal follows.
¶ 18 ANALYSIS
¶ 19 On appeal, defendant claims that the trial court erred in ordering production of both the
adverse event report and the claim form. The instant appeal was filed pursuant to Illinois
Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016), which permits an interlocutory appeal of
“[a]n order finding a person or entity in contempt of court which imposes a monetary or other
penalty.” Here, the trial court found defendant in friendly contempt of court and imposed a
monetary penalty. Accordingly, we have jurisdiction to consider defendant’s appeal. “Because
discovery orders are not final orders, they are not ordinarily appealable.” Norskog v. Pfiel, 197
Ill. 2d 60, 69 (2001). “However, it is well settled that the correctness of a discovery order may
be tested through contempt proceedings.” Norskog, 197 Ill. 2d at 69. “When [a party] appeals
contempt sanctions imposed for violating, or threatening to violate, a pretrial discovery order,
the discovery order is subject to review. [Citation.] Review of the contempt finding necessarily
requires review of the order upon which it is based. [Citation.]” Norskog, 197 Ill. 2d at 69.
Thus, we turn to consideration of the two discovery orders at issue.
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¶ 20 I. Adverse Event Report
¶ 21 We first consider the trial court’s order requiring defendant to produce the adverse event
report, which defendant claims was privileged under the Medical Studies Act (Act). The legal
determination of whether the privilege set forth in the Act applies to dialysis centers is a
question of law that we review de novo. See Eid v. Loyola University Medical Center, 2017 IL
App (1st) 143967, ¶ 40. However, we review the trial court’s factual determination that the
specific communication at issue was not part of a peer review study covered by the Act under
a manifest weight of the evidence standard. Eid, 2017 IL App (1st) 143967, ¶ 40. “The burden
of establishing the applicability of an evidentiary privilege rests with the party who seeks to
invoke it.” Eid, 2017 IL App (1st) 143967, ¶ 40 (citing Roach v. Springfield Clinic, 157 Ill. 2d
29, 41 (1993)).
¶ 22 The Act provides, in relevant part:
“All information, interviews, reports, statements, memoranda ***or other data of ***
medical organizations under contract with health maintenance organizations or with
insurance or other health care delivery entities or facilities, *** or 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, limiting or
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revoking staff privileges or agreements for services ***.” 735 ILCS 5/8-2101 (West
2016).
Thus, in order to be privileged under the Act, defendant must establish that the adverse event
report was (1) a document of (2) an organization covered under the Act that (3) was used for
one of the purposes specified in the Act.
¶ 23 As noted, we review de novo the question of whether the Act is applicable to a dialysis
center such as the one operated by defendant. De novo consideration means we perform the
same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d
564, 578 (2011). In the case at bar, defendant claims that it may be considered either a “licensed
or accredited hospital[ ]” or a “medical organization[ ] under contract with health maintenance
organizations or with insurance or other health care delivery entities or facilities” under the
Act.
¶ 24 With respect to defendant’s claim of being a hospital, defendant’s support for this
proposition comes entirely from dictionary definitions of hospitals. It is true that courts
sometimes turn to the dictionary to aid in the interpretation of an otherwise-undefined statutory
term. See, e.g., Ready v. United/Goedecke Services, Inc., 232 Ill. 2d 369, 377 (2008). However,
in this case, the Act specifically refers to “licensed or accredited hospitals.” (Emphasis added.)
735 ILCS 5/8-2101 (West 2016). Accordingly, we find the definition of “ ‘[h]ospital’ ” used
in the Hospital Licensing Act (210 ILCS 85/3(A) (West 2016)) to be more instructive to our
analysis. Defendant’s dialysis center is certainly not considered a hospital under that statute,
which defines a “ ‘[h]ospital’ ” as “any institution *** devoted primarily to the maintenance
and operation of facilities for the diagnosis and treatment or care of 2 or more unrelated persons
admitted for overnight stay or longer in order to obtain medical, including obstetric, psychiatric
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and nursing, care of illness, disease, injury, infirmity, or deformity.” 210 ILCS 85/3(A) (West
2016). In its reply brief, defendant also points to the multitude of regulations applicable to the
dialysis center in order to be covered under Medicare, and claims that “defendant is certainly
accredited to provide its services.” However, Medicare provides payment for both hospital-
based and independent end-stage renal disease facilities. See, e.g., 42 C.F.R. § 413.174
(discussing different rates applicable for each type of facility). The fact that defendant’s
dialysis center satisfies the requirements for coverage under Medicare does not mean that it is
a “licensed or accredited hospital[ ]” for the purposes of the Act. Consequently, we find no
basis to conclude that the center is a “licensed or accredited hospital[ ].”
¶ 25 Defendant also claims that it may be considered a “medical organization[ ] under contract
with health maintenance organizations or with insurance or other health care delivery entities
or facilities” under the Act. Defendant cites to two examples of such contracts. First, it claims
that it has a contract with Southwest Nephrology Associates, S.C., for the provision of
nephrology physician services to patients at the center. However, the citation provided by
defendant in support of this claim is to an argument made by defendant in its briefing before
the trial court; in that briefing, defendant stated that a copy of the contract could be provided
to the trial court for its in camera review, but no copy of this contract appears in the record on
appeal and it is unclear whether such in camera review was conducted. Second, defendant
points to Quinones’ deposition testimony, in which he testified that the center contracted with
doctors and laboratories for testing. However, Quinones was not asked about, and did not
provide, any names or details about such contracts.
¶ 26 Additionally, even accepting defendant’s argument that defendant would be considered a
“medical organization[ ] under contract with health maintenance organizations or with
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insurance or other health care delivery entities or facilities” under the Act, defendant must still
establish that the adverse event report was part of an internal quality-control process. As noted,
whether specific materials are part of an internal quality-control process is a factual question
on which defendant bears the burden of proving, and we will not reverse the trial court’s factual
determination unless it is against the manifest weight of the evidence. Grosshuesch v. Edward
Hospital, 2017 IL App (2d) 160972, ¶ 14. “A decision is against the manifest weight of the
evidence if it is unreasonable, arbitrary, or not based upon the evidence.” Grosshuesch, 2017
IL App (2d) 160972, ¶ 14 (citing Freese v. Buoy, 217 Ill. App. 3d 234, 244 (1991)).
¶ 27 The 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 advancing the quality of health care.”
Roach v. Springfield Clinic, 157 Ill. 2d 29, 40 (1993). The Act also serves “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 v. Siqueira, 109 Ill. 2d 357, 366 (1985). “The
statute 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.” Roach, 157 Ill. 2d at 40. “The Act was never intended to shield hospitals from
potential liability [citation], and legal advice is not a goal of the protection offered by the Act
[citation].” (Internal quotation marks omitted.) Webb v. Mount Sinai Hospital & Medical
Center of Chicago, Inc., 347 Ill. App. 3d 817, 825 (2004).
¶ 28 However, not every piece of information a hospital staff acquires is shielded from
discovery, even if it is acquired by a peer-review committee. Frigo v. Silver Cross Hospital &
Medical Center, 377 Ill. App. 3d 43, 65 (2007). The privilege does not apply to all information
used for internal quality control or peer review, but only to the “ ‘information of’ ” such
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committees. Nielson v. SwedishAmerican Hospital, 2017 IL App (2d) 160743, ¶ 36 (quoting
Roach, 157 Ill. 2d at 39); see also Roach, 157 Ill. 2d at 39 (“What the law 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 in original.) (quoting 735 ILCS
5/8-2101 (West 1992))). “ ‘Information of’ has a specific meaning here: it encompasses only
information ‘initiated, created, prepared or generated by’ a peer-review or quality-control
committee.” Kopolovic v. Shah, 2012 IL App (2d) 110383, ¶ 19 (quoting Pietro v. Marriott
Senior Living Services, Inc., 348 Ill. App. 3d 541, 549 (2004)). Thus, documents generated
specifically for the use of a peer-review committee receive protection under the Act, but the
Act does not protect against disclosure of information generated before the peer-review process
began. Grosshuesch, 2017 IL App (2d) 160972, ¶ 15. As our supreme court has explained:
“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. As
a result, it would be substantially more difficult for patients to hold hospitals
responsible for their wrongdoing through medical malpractice litigation. So protected,
those institutions would have scant incentive for advancing the goal of improved
patient care. The purpose of the [A]ct would be completely subverted.” Roach, 157 Ill.
2d at 41-42.
¶ 29 In the case at bar, defendant claims that the adverse event report was an internal quality
control document shielded under the Act because the nurse who prepared the report did so
under the instruction of Quinones, a member of the QAI committee. We do not find this
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argument persuasive. First, despite defendant’s contention otherwise, there is no evidence that
the report was prepared for the purpose of peer review or quality control. Defendant’s policy
on patient adverse event reporting indicates that all employees must immediately report any
adverse events to the clinical manager, who will further report any serious adverse reports up
the chain of command; the clinical manager is required to review all the facts surrounding an
adverse event as soon as possible for review at the next QAI meeting. An accident where a
plaintiff falls over a rug would be an adverse event, as a “[f]all” by a patient is listed as an
“adverse event” under the policy. The employee most familiar with the event is also
responsible for documenting the event in the patient’s health record, and the clinical manager
is responsible for completing any QAI materials. Thus, the adverse event reporting policy
imposes a blanket policy requiring any adverse event to be reported, and such events are
reviewed at the next QAI meeting. Our courts have found numerous times that an entity may
not declare in advance that all incident documents are part of a peer-review process. See, e.g.,
Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 406 (1998); Lindsey v.
Butterfield Health Care II, Inc., 2017 IL App (2d) 160042, ¶ 16; Grosshuesch, 2017 IL App
(2d) 160972, ¶ 26.
¶ 30 Defendant argues that it does not have such a blanket policy declaring all adverse event
reports to be protected. However, in addition to the requirements set forth by the policy above,
defendant’s argument is also contradicted by the express language of the policy: “QAI
materials are confidential company records: QAI Adverse Event Report Logs/Plans, QAI
Meeting Minutes, QAI Summaries and other related QAI materials are peer review and quality
assurance materials that are protected.” (Emphasis in original.) The policy’s requirement that
all adverse events be reported also contradicts defendant’s argument that “a member of the
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committee, Nurse Quinones, decided that the committee would review this occurrence and he
initiated the process by designating Nurse Tamayo as the individual to conduct interviews and
synthesize that information into the Adverse Event Report.” Even if Quinones instructed the
nurse to complete the actual adverse event report, this policy leaves no room for discretion as
to whether an adverse event report will be reviewed by the QAI committee. This distinguishes
the instant case from Eid, a case on which defendant relies. See Eid, 2017 IL App (1st) 143967,
¶ 18 (the chairperson of the committee would be contacted when an event occurred that could
have potential for committee review and the chairperson would direct an investigation to begin
upon a determination that investigation was warranted).
¶ 31 Additionally, even if some adverse event reports may be properly shielded under the Act,
it does not follow that this adverse event report was part of an internal quality-control process
such that it falls within the scope of the Act. “If *** 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.” Chicago
Trust Co., 298 Ill. App. 3d at 406; Webb, 347 Ill. App. 3d at 825. In the case at bar, we have
reviewed the adverse event report in camera and agree with the trial court that the document
was created in the ordinary course of business; it was not created for the purpose of rendering
a legal opinion or to weigh potential liability risk or for later corrective action. It purports to
show a brief description of an accident where a patient tripped on a rug. The report does not
have anything to do with the quality of the health care provided by the center. Plaintiff’s injury
occurred when plaintiff fell after tripping on a rug in the center’s entryway. Quinones admitted
in his deposition that plaintiff had not had any interaction with any of defendant’s employees
15 No. 1-19-0099
and that plaintiff had not received any medial treatment or care prior to his fall. Thus, plaintiff’s
fall would have no impact on “advancing the quality of health care” (Roach, 157 Ill. 2d at 40),
the purpose of shielding peer-review or quality-control committee materials from disclosure.
Plaintiff’s fall had nothing to do with the quality of health care provided by the center, and
plaintiff’s complaint does not allege that it did. Consequently, we can find no reason why the
report of this fall should be shielded by the Act.
¶ 32 We find instructive the case of Dunkin v. Silver Cross Hospital, 215 Ill. App. 3d 65 (1991),
another case involving a fall. There, a visitor to the hospital filed suit after falling on a stairway
at the hospital. Dunkin, 215 Ill. App. 3d at 66. The hospital sought to shield incident reports
generated by hospital staff to document any unusual occurrences, which were “used in
analyzing any problem areas and in determining the necessary steps to improve the quality of
care and service.” Dunkin, 215 Ill. App. 3d at 66. The hospital claimed that the reports were
shielded by the Act “because they were used in the course of internal quality control and related
to the improvement of hospital conditions.” Dunkin, 215 Ill. App. 3d at 67. On appeal, the
court found that the trial court had properly determined that the reports were not privileged,
noting that the reports were not related to patient medical care. Dunkin, 215 Ill. App. 3d at 68.
The court found:
“The legislature’s intent in enacting the statute was to protect with privilege those
reports and studies on quality control and hospital conditions that relate to patient
medical care. All of the cases cited by the parties on appeal involved materials that
related to patient medical care. Here, the reports compiled by the hospital did not relate
to such care in the same medical sense that the legislature was concerned about. The
reports are the same kind of incident reports which any business might have.
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Accordingly, we hold that the reports were discoverable and are admissible, assuming
they meet other evidentiary tests.” Dunkin, 215 Ill. App. 3d at 68.
¶ 33 As in Dunkin, the adverse event report with respect to plaintiff’s fall was “the same kind
of incident report[ ] which any business might have.” Dunkin, 215 Ill. App. 3d at 68. It was not
related to patient care—indeed, plaintiff was arriving at the center for treatment and had not
received any treatment prior to his fall, nor had he even had any interaction with an employee.
While defendant makes much of the fact that the plaintiff in Dunkin was a visitor, not a patient,
that distinction is irrelevant here, because neither of the falls related to the individual’s status
as a patient. Defendant also claims that predialysis falls implicate a dialysis patient’s ability to
ambulate and the treatment and care he receives and therefore are related to patient care.
However, defendant’s argument stretches the Act far beyond its purpose. The fact that
plaintiff’s fall may impact his future treatment does not make the report of the fall itself an
issue concerning the quality of the health care provided by the center. The adverse event report
prepared in the instant case does not fall within the purview of the Act, and the trial court’s
determination that the report was discoverable was not against the manifest weight of the
evidence.
¶ 34 II. Claim Form
¶ 35 We next consider the trial court’s order requiring defendant to disclose the claim form
submitted by Quinones to the corporate health, safety, and risk management department.
Defendant claims that this document is shielded from discovery under the insurer-insured
privilege. This court reviews a lower court’s ruling concerning application of privileges in
discovery de novo. Sherman v. Ryan, 392 Ill. App. 3d 712, 735 (2009). As noted, de novo
consideration means we perform the same analysis that a trial judge would perform. Khan, 408
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Ill. App. 3d at 578. “Because privileges protect rights outside of the discovery process and run
counter to the general duty to disclose and the truth-seeking process, their application is strictly
construed.” Sherman, 392 Ill. App. 3d at 735 (citing Sterling Finance Management, L.P. v.
UBS PaineWebber, Inc., 336 Ill. App. 3d 442, 446 (2002)).
¶ 36 The insurer-insured privilege is related to the attorney-client privilege, and extends to
communications between an insurer and insured, where the insurer has a duty to defend.
Chicago Trust Co., 298 Ill. App. 3d at 407. In order for the privilege to apply, a party 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 (1993) (citing Hyams v.
Evanston Hospital, 225 Ill. App. 3d 253, 257 (1992)).
¶ 37 In the case at bar, defendant claims that it established each element, while plaintiff claims
that defendant did not prove any element. We have no need to discuss each element, because
we find the final element dispositive. As noted, for a communication to be shielded under the
insurer-insured privilege, a party must prove that the communication was made between the
insured and an agent of the insurer. Rapps, 257 Ill. App. 3d at 212 (citing Hyams, 225 Ill. App.
3d at 257); see also People v. Ryan, 30 Ill. 2d 456, 461 (1964). In the case at bar, the claim
form was transmitted from Quinones to the corporate health, safety, and risk management
department. Quinones also averred that, in his capacity as clinical manager, “I am also aware
that Notice of Potential Professional/General Liability Claim Forms, such as my March 16,
2017 Form, are shared by Fresenius Medical Care North America’s Corporate Health, Safety
& Risk Management Department with outside insurance where outside insurance is involved
and has a duty to defend a professional/general liability claim.” Defendant claims that it was
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clear that the claim form was then sent to the insurer by the fact that defense counsel was
appointed to represent defendant in the instant case. We do not find this argument persuasive.
¶ 38 There is no dispute that Quinones sent the claim form to the corporate health, safety, and
risk management department. However, defendant fails to connect the dots between the
corporate health, safety, and risk management department and the insurer. There is no evidence
that the claim form was sent from the corporate office to the insurer. The claim form itself,
which we have reviewed in camera, does not contain any reference to the insurer—it is
defendant’s own form, with defendant’s logo in the corner and containing references only to
defendant’s corporate office. In other words, it is not a claim form issued by the insurance
company, nor is there any evidence that the insurance company approved the form of the
document. There is also no affidavit from any member of the corporate health, safety, and risk
management department suggesting that this form was transmitted to the insurance company.
At best, Quinones’ affidavit suggests that, as a general matter, these types of forms were
forwarded to the insurance company where applicable. We also find unpersuasive defendant’s
suggestion that transmission of the communication was implied by the fact that the insurance
company retained counsel for the defense of the instant matter. However, all that this proves
is that the insurer was aware of the incident and of the lawsuit—there is no indication that this
claim form was sent to the insurer, which is the relevant inquiry. Absent any evidence that this
claim form was actually sent to the insurance company, we cannot find that the claim form is
shielded from discovery based on the insurer-insured privilege and, accordingly, affirm the
trial court’s order requiring the production of the form.
¶ 39 In addition, even if there was proof that the form was sent to the insurance company as a
claim form, there is nothing in the form that even describes how the fall occurred. The form
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describes the “Description of Incident” as “patient found lying on the rug at the front foyer.”
There is no description of injury or any other information other than the date and time of the
incident and the names and phone numbers of two witnesses. There is nothing that would be
privileged in this document.
¶ 40 III. Contempt Finding
¶ 41 Despite our conclusion as to the production of the documents, we nevertheless vacate the
trial court’s contempt finding. It is appropriate for a party to request that a contempt order be
entered against it so that party may seek immediate appeal of a trial court’s discovery order.
Webb, 347 Ill. App. 3d at 828. “In such situations, where the party sought the order in good
faith and was not contemptuous of the trial court’s authority, we may vacate the contempt order
even when we find that the trial court’s discovery order was proper.” Webb, 347 Ill. App. 3d
at 828 (citing Berry v. West Suburban Hospital Medical Center, 338 Ill. App. 3d 49, 57 (2003)).
In the case at bar, defendant appropriately sought review of discovery orders requiring the
production of documents it believed were privileged. Accordingly, we vacate the contempt
order entered against defendant.
¶ 42 CONCLUSION
¶ 43 For the reasons set forth below, we affirm both of the trial court’s orders requiring
production of the adverse event report and the claim form. First, the adverse event report did
not fall within the scope of the Medical Studies Act. Additionally, defendant failed to establish
all of the required elements for the insurer-insured privilege. However, despite our findings as
to the trial court’s discovery order, we nevertheless vacate the trial court’s contempt finding.
¶ 44 Affirmed; contempt finding vacated.