Klaine v. Southern Illinois Hospital Services

2014 IL App (5th) 130356

• Court: Appellate Court of Illinois
• Decided: August 7, 2014
• Docket: 5-13-0356
• Status: Unpublished

Opinion

NOTICE 2014 IL App (5th) 130356 Decision filed 08/06/14. The text of this decision may be NO. 5-13-0356 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

CAROL KLAINE and KEITH KLAINE, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees, ) Williamson County. ) v. ) No. 11-L-163 ) SOUTHERN ILLINOIS HOSPITAL SERVICES, ) d/b/a St. Joseph Memorial Hospital and Memorial ) Hospital of Carbondale, ) ) Defendant-Appellant ) ) Honorable (Frederick Dressen and Southern Illinois Medical ) Brad K. Bleyer, Services, d/b/a Center for Medical Arts, Defendants). ) Judge, presiding. ________________________________________________________________________

JUSTICE SPOMER delivered the judgment of the court, with opinion. Presiding Justice Welch and Justice Chapman concurred in the judgment and opinion.

OPINION

¶1 The defendant, Southern Illinois Hospital Services, doing business as St. Joseph

Memorial Hospital and doing business as Memorial Hospital of Carbondale, appeals the

July 9, 2013, order of the circuit court of Williamson County which found it to be in

contempt of court for failing to produce documents to the plaintiffs, Carol and Keith

Klaine, and which assessed a $1 "friendly contempt" penalty in order to facilitate this

1 interlocutory appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26,

2010). The circuit court entered its order upon the defendant's motion after it reviewed

all of the relevant documents in camera, and found, in a letter to the parties dated May 7,

2013, that documents labeled "Group Exhibit F" and "Group Exhibit J" were not

privileged and ordered the defendant to produce them. 1

¶2 On appeal, the defendant raises the following issues with regard to "Group Exhibit

F," which consists of "Health Care Professional Credentialing and Business Data

Gathering Form[s]" (applications for staff privileges) which were submitted to the

defendant by Dr. Frederick Dressen, D.O., another defendant in the underlying medical

malpractice action, but not a party to this appeal: (1) whether Dr. Dressen's December 1,

2011, application for staff privileges is irrelevant to this malpractice action pursuant to

the standard set forth in Illinois Supreme Court Rule 201(b)(1) (eff. Jan. 1, 2013), and

thus, undiscoverable; (2) whether the applications for staff privileges contained in "Group

Exhibit F" are privileged under section 15(h) of the Illinois Health Care Professional

Credentials Data Collection Act (the Data Collection Act) (410 ILCS 517/15(h) (West

2012)); and, in the alternative (3) whether certain information within the applications for

staff privileges should be redacted because the information is privileged under section 8-

2102 of the Illinois Code of Civil Procedure (the Medical Studies Act) (735 ILCS 5/8-

2102 (West 2012)), section 11137 of the federal Health Care Quality Improvement Act

1 The circuit court also found documents labeled "Group Exhibit B" were

privileged and had to be produced, but the defendant is not appealing that ruling.

2 (42 U.S.C. § 11137 (2012)), section 1320d of the federal Health Insurance Portability and

Accountability Act (42 U.S.C. § 1320d (2012)), and the physician-patient privilege as

codified in section 8-802 of the Illinois Code of Civil Procedure (735 ILCS 5/8-802

(West 2012)).

¶3 With regard to "Group Exhibit J," which consists of lists of procedures performed

by Dr. Dressen, the defendant argues that such documents are privileged pursuant to

section 8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)). Finally,

the defendant argues that, irrespective of whether this court finds the contested

documents to be privileged, this court should vacate the finding of contempt and

assessment of the monetary penalty, because it refused to tender the contested documents

in good faith. For the following reasons, we affirm the circuit court's discovery order as

embodied in its May 7, 2013, letter to the parties, with the following modifications: (1)

references to the Greeley Report and its findings that are contained in the December 1,

2011, application for staff privileges, "Group Exhibit F" at MHCPL 37, 38, and 39, shall

be redacted; and (2) any references to identifying patient information, contained within

the applications for staff privileges contained in "Group Exhibit F" and the Surgeon Case

Histories contained in "Group Exhibit J," should be produced in compliance with the

provisions of 45 C.F.R. § 164.512(e) (2012). In addition, we vacate the July 9, 2013,

order that found the defendant to be in contempt and assessed a monetary penalty, and

remand this cause for further proceedings.

3 ¶4 FACTS

¶5 The plaintiffs filed an amended complaint in the circuit court of Williamson

County on August 10, 2012, alleging medical malpractice on the part of Dr. Dressen

during a gallbladder removal procedure that took place on February 2, 2011, causing a

colon perforation and two additional procedures to resection the colon and create an

ileostomy. In addition to the claims against Dr. Dressen, the plaintiffs alleged causes of

action against the defendant for negligent credentialing of Dr. Dressen. On March 18,

2013, the plaintiffs filed a motion to compel the defendant to produce certain documents

in discovery, and the defendant filed a response with a privilege log specifying that

certain documents that were responsive to the plaintiffs' discovery requests were

privileged.

¶6 The circuit court conducted an in camera review of the documents that the

defendant claimed were privileged, which were submitted to the circuit court under seal

and remain under seal on appeal. On May 7, 2013, the circuit court ruled that all of the

documents were privileged with the exception of "Group Exhibit B," "Group Exhibit F,"

and "Group Exhibit J," and this ruling was embodied in a letter to the parties on that date.

On May 23, 2013, the defendant filed a motion to reconsider as to "Group Exhibit F" and

Group Exhibit J," which the circuit court denied on June 10, 2013. On June 26, 2013, the

defendant filed a motion for a finding of contempt in order to facilitate an immediate

appeal from the circuit court's order pursuant to the terms of Illinois Supreme Court Rule

304(b)(5) (eff. Feb. 26, 2010). On July 9, 2013, the circuit court granted the motion and

assessed a $1 "friendly contempt" penalty. The defendant filed a timely notice of appeal. 4 Additional facts necessary to our analysis of the various issues on appeal may be set forth

throughout this order.

¶7 ANALYSIS

¶8 We begin with a discussion of our standard and scope of review. First, we note

that the plaintiffs did not file a brief on appeal. First Capitol Mortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128 (1976), provides a framework for our review in such a

case. The order of the circuit court cannot be reversed pro forma for the appellee's failure

to file a brief as required by rule, because a circuit court's considered judgment should

not be set aside without some consideration of the merits of the appeal. Id. at 131.

Although we are not required to serve as an advocate for the plaintiffs, we may only

reverse the order of the circuit court if the defendant's brief demonstrates prima facie

reversible error and the contentions of the brief find support in the record. See id.

¶9 Because the defendant is appealing a finding of direct civil contempt from

noncompliance with a discovery order, we must necessarily review the propriety of the

discovery order. Cangelosi v. Capasso, 366 Ill. App. 3d 225, 227 (2006). In fact,

requesting that the circuit court enter a contempt order is a proper procedure to seek

immediate appeal of a discovery order, which is otherwise not subject to interlocutory

appeal as a matter of right. Anderson v. Rush-Copley Medical Center, Inc., 385 Ill. App.

3d 167, 185 (2008). If the discovery order is improper, the finding of contempt must be

reversed. Cangelosi, 366 Ill. App. 3d at 227. If we find that the discovery order should

be upheld, we may nevertheless vacate the finding of contempt and assessment of a

monetary penalty if we find that the defendant's refusal to produce the documents at issue 5 was not contemptuous of the circuit court's authority, but rather was made in good faith

based on sound legal arguments for purposes of effectuating an interlocutory appeal.

Anderson, 385 Ill. App. 3d at 186.

¶ 10 Generally, discovery rulings are reviewed for an abuse of discretion, but the

applicability of a privilege is reviewed de novo. Cangelosi, 366 Ill. App. 3d at 227.

However, whether specific materials are part of an internal quality control or a specific

medical study as set forth in section 8-2102 of the Medical Studies Act (735 ILCS 5/8-

2102 (West 2012)) is a factual determination, which will not be reversed on review

unless it is against the manifest weight of the evidence. Anderson, 385 Ill. App. 3d at

174. With these standards in mind, we will address the discoverability of the documents

at issue in turn.

¶ 11 1. "Group Exhibit F"

¶ 12 a. Relevancy of December 1, 2011, Application for Staff Privileges

¶ 13 "Group Exhibit F" consists of three applications for staff privileges, which were

submitted by Dr. Dressen and dated February 19, 2009, August 13, 2010, and December

1, 2011. We begin our review of the discoverability of these documents by considering

the defendant's argument that the December 1, 2011, application for staff privileges is not

discoverable because it is not relevant to the plaintiffs' claims. We begin by noting that

our review of the record reveals that the defendant raised the issue of the December 1,

2011, application for staff privileges for the first time in its motion to reconsider. There

is authority in Illinois for the proposition that arguments first raised in a motion to

reconsider are deemed forfeited and cannot be raised on appeal. See American Chartered 6 Bank v. USMDS, Inc., 2013 IL App (3d) 120397, ¶ 13; see also Sewickley, LLC v.

Chicago Title Land Trust Co., 2012 IL App (1st) 112977, ¶ 36. Although the circuit

court has discretion to consider a new issue raised for the first time in a motion to

reconsider when the party has a reasonable explanation for why it did not raise the issue

earlier in the proceedings (see Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 195

(1989)), the record contains no such explanation. Accordingly, we find that the

defendant has forfeited this issue on appeal.

¶ 14 Forfeiture aside, because this is not an issue of privilege, but one of relevance, our

standard of review is for an abuse of discretion. See Cangelosi, 366 Ill. App. 3d at 227.

Illinois Supreme Court Rule 201(b)(1) (eff. Jan. 1, 2013) defines the scope of discovery

in civil cases and has been interpreted to allow discovery of all information that would be

admissible at trial as well as information which is reasonably likely to lead to admissible

evidence. Manns v. Briell, 349 Ill. App. 3d 358, 361 (2004). The defendant argues that

the information contained in Dr. Dressen's December 1, 2011, application for staff

privileges is irrelevant to the plaintiffs' negligent credentialing claims because the

application was submitted after Dr. Dressen's allegedly negligent treatment of Carol

Klaine, and therefore could not have been considered by the defendant's credentialing

committee prior to the events at issue. After considering the defendant's argument, we

find that the circuit court may have reasonably found that information contained within

the application could contain information reasonably likely to lead to admissible evidence

of the plaintiffs' claims, such as information regarding Dr. Dressen's treatment of Carol

Klaine. Accordingly, we find the circuit court did not abuse its discretion in this regard. 7 ¶ 15 b. The Data Collection Act

¶ 16 Having given consideration to the defendant's arguments with regard to the

relevancy of the December 1, 2011, application for staff privileges contained in "Group

Exhibit F," we turn now to the defendant's argument that all of the applications for staff

privileges contained in "Group Exhibit F" are privileged pursuant to section 15(h) of the

Data Collection Act (410 ILCS 517/15(h) (West 2012)). The Data Collection Act

authorizes the Illinois Department of Public Health to establish a uniform hospital

credentials form that includes the credential data commonly requested by hospitals for

purposes of credentialing and requires health care professionals to complete these forms

when applying for appointment to the medical staff of a hospital. 410 ILCS 517/15(a)(3),

(e) (West 2012). The Data Collection Act further provides, in relevant part, as follows:

"Any credentials data collected or obtained by the *** hospital shall be

confidential, as provided by law, and otherwise may not be redisclosed

without written consent of the health care professional ***. *** [A]ny

redisclosure of credentials data contrary to this Section is prohibited." 410

ILCS 517/15(h) (West 2012).

¶ 17 It is this section upon which the defendant bases its claim of privilege. Our

analysis of this issue requires a determination of whether the above-quoted language

creates a privilege against discovery of all applications for staff privileges created under

the Data Collection Act. We find that it does not. When construing a statutory provision,

this court must " 'ascertain and give effect to the true intent and meaning of the

legislature.' " TTX Co. v. Whitley, 295 Ill. App. 3d 548, 553 (1998) (quoting Hernon v. 8 E.W. Corrigan Construction Co., 149 Ill. 2d 190, 194 (1992)); City of Decatur v.

American Federation of State, County, & Muncipal Employees, Local 268, 122 Ill. 2d

353, 364 (1988). "Privileges are strongly disfavored because they are in derogation of

the search for truth [citation] and must be strictly construed as an exception to the general

duty to disclose [citation]." People ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d

745, 749 (1997). For this reason, there is no general principle under Illinois law that

provides that information that is otherwise discoverable is privileged because it is

confidential. Id. at 753. Our courts have been reluctant to expand or create such

privileges because while the courts value policies that favor the admission of all relevant

and reliable evidence which directly assists the judicial function of ascertaining the truth,

it is the responsibility of the legislature to promote policies aimed at balancing broader

social goals that may conflict in some way with the judicial function. Id. at 751 (quoting

People v. Sanders, 99 Ill. 2d 262, 271 (1983)).

¶ 18 With the aforementioned principles in mind, we must look only to the language of

the section 8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)) to

determine that where the legislature has intended to create a privilege, it has done so

explicitly. That section provides that material generated under that act "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." (Emphasis added.) 735 ILCS 5/8-2102 (West

2012). The section goes on to provide that "[t]he disclosure of any such information ***

shall not waive or have any effect upon its confidentiality, nondiscoverability, or

nonadmissibility." (Emphasis added.) 735 ILCS 5/8-2102 (West 2012). It is clear from 9 the language of these sections that confidentiality, discoverability, and admissibility are

distinct concepts and when the legislature means to provide for the nondiscoverability of

confidential information, it does so explicitly.

¶ 19 For the aformentioned reason, we decline to follow the rationale of our colleagues

in the First District in TTX Co. v. Whitley, 295 Ill. App. 3d 548, 555 (1998), which held

that the confidentiality provision in section 917(a) of the Illinois Income Tax Act (Tax

Act) (35 ILCS 5/917(a) (West 1994)) prohibited discovery of information contained in

tax returns because that section did not contain an exception for disclosure in judicial

proceedings. As the First District recognized, where the courts have held that documents

subject to confidentiality provisions in state statutes could not be disclosed during

discovery or at trial, the plain language of those statutes specifically stated that the

confidential documents were inadmissible in court. TTX Co., 295 Ill. App. 3d at 556.

Nevertheless, the First District chose to impose a nondiscoverablity provision where none

existed. Id. (citing Niven v. Siqueira, 109 Ill. 2d 357, 366 (1985) (interpreting section 8-

2102 of the Medical Studies Act (Ill. Rev. Stat. 1983, ch. 110, ¶ 8-2102)); Arnold v.

Thurston, 240 Ill. App. 3d 570, 574 (1992) (interpreting section 11-412 of the Illinois

Vehicle Code (Ill. Rev. Stat. 1991, ch. 95½, ¶ 11-412)); People v. Ellis, 128 Ill. App. 3d

180, 183 (1984) (interpreting section 1900 of the Unemployment Insurance Act (Ill. Rev.

Stat. 1983, ch. 48, ¶ 640))). We also note that this interpretation of section 917(a) of the

Tax Act (35 ILCS 5/917(a) (West 1994)) was unnecessary, as the court ultimately

determined that the information that was sought was irrelevant to the issues in the case.

TTX Co., 295 Ill. App. 3d at 557. 10 ¶ 20 In summary, we decline to follow the First District's decision in TTX Co. to

impose a privilege where the legislature has imposed a duty of confidentiality and hold

that a privilege does not exist unless the legislature makes an explicit provision to that

end. It has not done so with regard to applications for staff privileges created pursuant to

the Data Collection Act, and accordingly, the circuit court did not err in its order finding

the applications for staff privileges are not privileged.

¶ 21 c. References to Greeley Report

¶ 22 Having found that the applications for staff privileges contained in "Group Exhibit

F" are not privileged, we must consider, in turn, the defendant's arguments that specific

information contained within the applications for staff privileges must be redacted. First,

the defendant argues that references made to findings contained in a report issued by the

Greeley Company that are contained within Dr. Dressen's December 1, 2011, application

for staff privileges on pages MHCPL 37, 38, and 39 must be redacted because they are

privileged pursuant to section 8-2102 of the Medical Studies Act (735 ILCS 5/8-2102

(West 2012)). According to affidavits contained in the record, the Greeley Company is a

medical consulting company that the defendant retains to conduct external peer reviews

of its physicians when it is deemed appropriate by the defendant's medical staff quality

oversight committee (MSQOC) or other committees. The MSQOC is a standing

committee which is responsible for overseeing the accountability and effectiveness of the

individual peer-review committees and for developing systematic approaches to

evaluating and improving physician performance.

11 ¶ 23 In June 2011, the peer-review committee recommended that Dr. Dressen be

referred to the MSQOC for a Focused Professional Practice Evaluation (FPPE). The

MSQOC approved the FPPE of Dr. Dressen at its meeting on June 22, 2011, and

requested the Greeley Company to conduct that FPPE. Greeley finalized the report

regarding the peer review of Dr. Dressen in September 2011, and it was subsequently

reviewed by a focus subgroup of members of the MSQOC and peer-review committees.

The documents exchanged between the Greeley Company and the defendant, as well as

the report prepared by the Greeley Company, were produced to the circuit court for in

camera inspection, and the circuit court concluded that these documents were privileged

pursuant to section 8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)),

which provides, inter alia, that information and documents used by a hospital in the

course of internal quality control are not discoverable in any action.

¶ 24 We agree with the defendant that the references to the findings of the Greeley

Report that are contained in the December 1, 2011, application for staff privileges on

pages MHCPL 37, 38, and 39 of the privilege log are privileged and must be redacted.

See Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d 741, 747 (2003)

(the Medical Studies Act protects documents and information that arise from the

workings of a peer-review committee as well as a peer-review committee's

recommendations and internal conclusions). However, only the reference to the Greeley

Report and its finding should be redacted. The other information on these pages which

relates to the status, revocation, modification, or restriction of Dr. Dressen's privileges,

and Dr. Dressen's characterization of the reasons therefor, aside from the findings of the 12 Greeley Report, are not privileged and are not to be redacted. See id. (results of a peer-

review committee, taking the form of ultimate decisions made or actions taken by that

committee, or the hospital, including the revocation, modification, or restriction of

privileges, are not privileged).

¶ 25 d. References to National Practitioner Data Bank

¶ 26 The defendant next argues that information within Dr. Dressen's applications for

staff privileges that refers to information that was reported to the National Practitioner

Data Bank (NPDB) is privileged under section 11137 of the Health Care Quality

Improvement Act (42 U.S.C. § 11137 (2012)). The Health Care Quality Improvement

Act creates the NPDB, to which medical malpractice insurance carriers, boards of

medical examiners, and health care entities are required to report information respecting

the payment of claims, disciplinary actions, and other adverse information respecting a

health care professional. See 42 U.S.C. §§ 11131-11134 (2012). The act further requires

that each hospital request such information from the NPDB for each health care

practitioner who applies for privileges or staffing. 42 U.S.C. § 11135 (2012).

¶ 27 Section 11137 of the Health Care Quality Improvement Act provides that

information reported under that act is considered confidential and shall not be disclosed

except in narrowly enumerated situations. 42 U.S.C. § 11137 (2012). It is pursuant to

this provision that the defendant claims that Dr. Dressen's references, within his

applications for staff privileges, to information reported to the NPDB, should be redacted.

However, section 11137 further provides that "[n]othing in this subsection shall prevent

the disclosure of such information by a party which is otherwise authorized, under 13 applicable State law, to make such disclosure." 42 U.S.C. § 11137(b)(1) (2012).

Pursuant to this language, we find that, although the NPDB and reporting entities are

required to keep reported information confidential as a general rule, under Illinois

discovery rules, the defendant is authorized, and is in fact, required, to produce this

information with respect to the plaintiffs' negligent credentialing claim. For this reason,

we find that this information is not to be redacted from Dr. Dressen's applications for

staff privileges.

¶ 28 e. Information Regarding Treatment of Other Patients

¶ 29 The defendant's next argument on appeal regarding information contained in Dr.

Dressen's applications for staff privileges that are set forth in "Group Exhibit F" is that

any information regarding Dr. Dressen's care and treatment of other patients must be

redacted because it is privileged under the Health Insurance Portability and

Accountability Act (HIPAA) (42 U.S.C. § 1320d et seq. (2012)) and the regulations

promulgated thereunder. In the defendant's brief, defendant's counsel states to this court

that "[n]one of the Code of Federal Regulations allow for the disclosure of the private

health information of any of Dr. Dressen's other patients in this lawsuit." Our review of

HIPAA regulations leads to a different conclusion. First, much of the information for

which the defendant is claiming privilege does not contain "individually identifiable

health information" and is therefore not protected information under HIPAA. See In re

Zyprexa Products Liability Litigation, 254 F.R.D 50, 54 (E.D.N.Y. 2008) (quoting 45

C.F.R. § 164.514(a) (2008)). Furthermore, a cursory review of the scope of HIPAA

reveals that, pursuant to HIPAA regulations, there are many circumstances in which " '[a] 14 covered entity may use or disclose protected health information without the written

authorization of the individual ... or the opportunity for the individual to agree or object' "

(id. at 53 (quoting 45 C.F.R. § 164.512 (2008))). These regulations contain an explicit

standard governing the disclosure of protected health information for judicial and

administrative proceedings that the defendant's counsel failed to cite to this court. See 45

C.F.R. § 164.512(e) (2012). The information contained within Dr. Dressen's applications

for staff privileges is clearly discoverable under the provisions of that section, either by a

court order expressly authorizing the disclosure of the information or with a qualified

protective order as defined by that section. Accordingly, we will not order the

information to be redacted and trust that the parties will see that the provisions of this

regulation are followed.

¶ 30 f. Information Regarding Dr. Dressen's Medical Condition

¶ 31 The defendant next argues that information regarding Dr. Dressen's medical

condition that is contained within his applications for staff privileges is protected by the

physician-patient privilege, which provides that "[n]o physician or surgeon shall be

permitted to disclose any information he or she may have acquired in attending any

patient in a professional character, necessary to enable him or her professionally to serve

the patient." 735 ILCS 5/8-802 (West 2012). Here, the information that the defendant

seeks to have redacted consists of Dr. Dressen's own responses to questions in his

applications regarding whether he has a medical condition, physical defect, emotional

impairment, or substance abuse issue which in any way impairs or limits his ability to

practice medicine with reasonable skill and safety. The physician-patient privilege 15 " 'exists as to "any information" acquired by a physician in a professional capacity which

is "necessary" to enable him to "serve" his patient.' " Kraima v. Ausman, 365 Ill. App. 3d

530, 533 (2006) (quoting Pritchard v. SwedishAmerican Hospital, 191 Ill. App. 3d 388,

404 (1989) (quoting Geisberger v. Willuhn, 72 Ill. App. 3d 435, 437 (1979))). The

information the defendant seeks to redact is Dr. Dressen's own assessment of his physical

and mental condition, and in no way relates to information acquired by a physician in a

professional capacity for the purposes of diagnosing or treating Dr. Dressen as a patient.

For this reason, we find the physician-patient privilege does not apply to this information,

and will not order the information to be redacted.

¶ 32 2. "Group Exhibit J"

¶ 33 Having determined that the documents in "Group Exhibit F" are discoverable with

references to the findings of the Greeley Report redacted, we now consider the

defendant's argument that the documents contained in "Group Exhibit J" are privileged

under section 8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)).

Although the question of whether a discovery privilege applies is a matter of law, which

we review de novo, the question of whether specific materials fall within the purview of a

"medical study" pursuant to section 8-2102 of the Medical Studies Act (735 ILCS 5/8-

2102 (West 2012)) is a factual question within that legal determination, subject to

reversal on review only if it is against the manifest weight of the evidence. Ardisana v.

Northwest Community Hospital, Inc., 342 Ill. App. 3d 741, 746 (2003).

¶ 34 The documents contained within "Group Exhibit J" contain "procedure

summaries" for Dr. Dressen from the years 2007 through 2011. The documents contain a 16 list of procedures performed by Dr. Dressen during these years and indicate how many of

the procedures Dr. Dressen performed. Along with the procedure summaries, there are

two pages, located at MHCPL 669 and 670, entitled "Surgeon Case History," which

contain more specific procedure data, including date, name of procedure, and patient

name.

¶ 35 In support of its claim of privilege with regard to these documents, the defendant

submitted affidavits from its medical staff manager and from the senior corporate director

of patient relations. Because the burden of establishing a privilege under the Medical

Studies Act is on the party seeking to invoke it, we must set forth these affidavits in detail

in order to determine if the affidavits set forth sufficient facts to establish the applicability

of the Medical Studies Act to the documents set forth in "Group Exhibit J." See

Ardisana, 342 Ill. App. 3d at 746. .

¶ 36 According to the affidavit of the medical staff manager, the system credentialing

committee is a standing committee for the defendant. When a physician with current

staff privileges with the defendant requests reappointment, "documentation would be

generated regarding the physician's practice over the previous appointment period,"

including physician profiles and a list of procedures that have been performed over that

period. According to the affidavit of the medical staff manager, physician profiles are

prepared "for the use of" the system credentialing committee for use in reappointments,

as well as "for the use of" the MSQOC as part of ongoing professional practice

evaluations that are conducted by that committee. According to the affidavit of the senior

corporate director of patient relations, physician profiles are prepared "for the use of" the 17 MSQOC and also prepared "by the Credentialing Committee" for their use in the

reappointment of physicians to the medical staff. The affidavit of the senior corporate

director of patient relations also states that "risk incident data is also compiled by the

MSQOC for the use of both the MSQOC and the Credentialing Committee for the

evaluation of physicians." Neither of the affidavits specifically identifies the documents

in "Group Exhibit J," which are entitled "Surgeon Case Histories," and the affidavit of the

senior corporate director of patient relations does not specify which documents represent

the "risk incident data" that is compiled by the MSQOC. Similarly, in its brief on appeal,

the defendant refers to "risk incident data" in relation to "Group Exhibit J," but does not

specify which documents contain "risk incident data."

¶ 37 As a matter of law, we recognize that section 8-2101 of the Medical Studies Act

(735 ILCS 5/8-2101 (West 2012)) applies to information and reports generated by the

defendant's credentialing committee in the process of the granting or denying of staff

privileges, as this process is a part of the internal quality control of the hospital. See

Stricklin v. Becan, 293 Ill. App. 3d 886, 889-90 (1997); see also May v. Wood River

Township Hospital, 257 Ill. App. 3d 969, 976-77 (1994) (J. Welch, dissenting). While

the question of whether the act's privilege applies is a question of law that is reviewed de

novo, the question of whether the specific materials contained in "Group Exhibit J" are

part of an internal quality control "is a factual question" on which the defendant bears the

burden. See Webb v. Mount Sinai Hospital & Medical Center of Chicago, Inc., 347 Ill.

App. 3d 817, 825 (2004) (citing Berry v. West Suburban Hospital Medical Center, 338

Ill. App. 3d 49, 53-54 (2003)). In addition, the defendant bears the burden of any failure 18 to make a complete record. Id. at 826 (quoting Grandi v. Shah, 261 Ill. App. 3d 551, 557

(1994)). The circuit court's factual determination of whether the documents at issue were

part of an internal quality control will not be reversed unless it is against the manifest

weight of the evidence. Id. (quoting Berry, 338 Ill. App. 3d at 54). A decision is against

the manifest weight of the evidence if an opposite conclusion is clearly apparent or if the

trial court's findings appear to be unreasonable, arbitrary, or not based on the evidence.

Id. (quoting Freese v. Buoy, 217 Ill. App. 3d 234, 244 (1991)).

¶ 38 In interpreting section 8-2101 of the Medical Studies Act, the Illinois Supreme

Court has held that the purpose of the privilege set forth in that section is to ensure the

effectiveness of professional self-evaluation, by members of the medical profession, in

the interest of improving quality health care, and is premised on the belief that, absent

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 (1985) (quoting Jenkins v. Wu, 102 Ill. 2d 468, 480 (1984)). To that end,

information that is generated by a committee of a hospital engaged in any form of

internal quality control during the process of peer review is privileged. See Roach v.

Springfield Clinic, 157 Ill. 2d 29, 40 (1993). However, information that is obtained prior

to the initiation of a peer-review process is not transformed into "information of" a peer-

review committee merely because the information is reported to that body sometime

later. Id. at 41. This is because "[i]f 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 19 known to its medical staff, with the exception of those matters actually contained in a

patient's records." Id. For this reason, blanket conclusions that information was

generated at the request of a reviewing committee are not enough to invoke the

protections of the Medical Studies Act. Cretton v. Protestant Memorial Medical Center,

Inc., 371 Ill. App. 3d 841, 856-57 (2007).

¶ 39 Applying these principles to the documents contained in "Group Exhibit J," we

find that the affidavits that the defendant submitted in support of its claim of privilege do

not set forth sufficient facts to mandate a finding that the privilege attaches to these

documents. A review of the affidavits does not establish that the information contained

within the documents, consisting of a history of the procedures Dr. Dressen performed at

the defendant's facilities, would not have been kept in the ordinary course of the

defendant's business prior to the credentialing committee and MSQOC commencing a

peer-review process. As set forth above, the fact that the information was furnished to

these committees in the form of a summary report does not transform the information,

which is otherwise discoverable, into privileged information. The documents contain raw

data with regard to procedures that Dr. Dressen performed, and contain no data reflecting

any physician's evaluation of Dr. Dressen's performance. For these reasons, we find that

the defendant failed to meet its burden to prove that the documents contained in "Group

Exhibit J" were initiated, created, prepared, or generated by a peer-review committee,

rather than in the ordinary course of the defendant's business to later be used by a

committee in the peer-review process. See Chicago Trust Co. v. Cook County Hospital,

298 Ill. App. 3d 396, 406 (1998). Accordingly, we affirm that part of the circuit court's 20 order that required the defendant to provide "Group Exhibit J" to the plaintiffs. However,

we note that MHCPL 669 and 670 contain identifying patient information, and modify

the order to require compliance with the provisions of 45 C.F.R. § 164.512(e) (2012).

¶ 40 3. The Contempt Order

¶ 41 Having considered all of the issues raised on appeal with regard to the defendant's

claims of privilege, the final issue we must address is whether the contempt order should

be vacated. Requesting the circuit court to enter a contempt order is a proper procedure

to seek immediate appeal of a discovery order. Green v. Lake Forest Hospital, 335 Ill.

App. 3d 134, 139 (2002). In such situations, where the party sought the order in good

faith and was not contemptuous of the circuit court's authority, we may vacate the

contempt order even when we find that the circuit court's discovery order was proper.

Webb, 347 Ill. App. 3d at 828. We find this to be such a case and therefore vacate the

circuit court's July 9, 2013, order, which found the defendant to be in contempt of court

for failing to produce the contested documents to the plaintiffs and assessed a monetary

penalty.

¶ 42 CONCLUSION

¶ 43 For the foregoing reasons, we affirm the circuit court's discovery order as

embodied in its May 7, 2013, letter to the parties, with the following modifications: (1)

references to the Greeley Report and its findings that are contained in the December 1,

2011, application for staff privileges, "Group Exhibit F" at MHCPL 37, 38, and 39, shall

be redacted; and (2) any references to identifying patient information, contained within

the applications for staff privileges in "Group Exhibit F" and the Surgeon Case Histories 21 contained in "Group Exhibit J," should be produced in compliance with the provisions of

45 C.F.R. § 164.512(e) (2012). In addition, we vacate the July 9, 2013, order that found

the defendant to be in contempt and assessed a monetary penalty, and remand this cause

for further proceedings.

¶ 44 Affirmed as modified in part and vacated in part; cause remanded.

22 2014 IL App (5th) 130356 NO. 5-13-0356 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ______________________________________________________________________________ CAROL KLAINE and KEITH KLAINE, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees, ) Williamson County. ) v. ) No. 11-L-163 ) SOUTHERN ILLINOIS HOSPITAL SERVICES, ) d/b/a St. Joseph Memorial Hospital and Memorial ) Hospital of Carbondale, ) ) Defendant-Appellant ) ) Honorable (Frederick Dressen and Southern Illinois Medical ) Brad K. Bleyer, Services, d/b/a Center for Medical Arts, Defendants). ) Judge, presiding. ______________________________________________________________________________ Opinion Filed: August 6, 2014 ______________________________________________________________________________ Justices: Honorable Stephen L. Spomer, J.

Honorable Thomas M. Welch, P.J., and Honorable Melissa A. Chapman, J., Concur ______________________________________________________________________________

Attorney Kara L. Jones, John C. Ryan, Feirich/Mager/Green/Ryan, 2001 West Main for Street, P.O. Box 1570, Carbondale, IL 62903 Appellants ______________________________________________________________________________

Attorney Thomas Q. Keefe, Jr., Keefe & Keefe, P.C., #6 Executive Woods Court, for Belleville, IL 62226 Appellees ______________________________________________________________________________