Opinion
No. 2-17-0467
03-05-2018
JEREMY E. TINDLE and KAREN TINDLE, Plaintiffs-Appellees, v. ADVOCATE SHERMAN HOSPITAL, Defendant-Appellant, and SAFWAN BARAKAT, M.D., NORTHWEST BRAIN & SPINE SURGERY, S.C., Defendants.
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).
Appeal from the Circuit Court of Kane County.
No. 13-L-125
Honorable James R. Murphy, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court.
Justices Birkett and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: We affirm the trial court's ruling that the documents in question are not privileged under the Medical Studies Act, as they are merely a summary of data kept by the Appellant-Hospital in the ordinary course of business.
¶ 2 I. BACKGROUND
¶ 3 Plaintiffs, Jeremy and Karen Tindle, filed a four-count complaint against defendants, Advocate Sherman Hospital (ASH) and Dr. Safwan Barakat. The complaint alleges negligence against Dr. Barakat due to his performance of a laser discectomy on Jeremy Tindle on March 1, 2011. The complaint also alleged that ASH negligently credentialed Dr. Barakat to perform the laser discectomy on Jeremy Tindle.
¶ 4 The parties proceeded to discovery wherein the plaintiffs made a request of ASH for the entire credentials file of Dr. Barakat. ASH produced a "Privilege Log" which made multiple claims of privilege pursuant to the Medical Studies Act (the Act), 735 ILS 5/8-2101, et seq (West 2016). The claims of privilege cited by ASH in the Privilege Log consisted of the following requests by plaintiffs:
"No. 451 (P. 23): Provider Report, Provider Procedures 12/1/09-11/30/11
No. 468 (P. 26) Sherman Hospital Procedure Surgeon Totals
No. 485 (P. 28) Sherman Hospital Procedure Totals
No. 487 (P. 28) Sherman Hospital Procedure Surgeon
Nos. 536-555 (P. 34) Generated list of procedures by Dr. Barakat at Sherman Hospital
Nos. 578-600 (P. 36) Generated list of procedures by Dr. Barakat at Sherman Hospital."
The defendant refers to the above-requested documents "Volume Reports."
¶ 5 According to the deposition testimony of Elizabeth Schaaf, the manager of the Medical Staff Services Office (MSO) with ASH, the Volume Reports were generated from the following information. A physician submits a state-mandated application form to the MSO when their privileges are up for renewal. The MSO provides the physician with a reappointment packet which the physician completes and returns to the MSO. Within the reappointment packet is a "Checklist for Reappointment" which contains a section called "Utilization and Review
Statistics/Lori Lodge Report." Schaaf stated that this section contains the volume of surgical cases performed by a physician-applicant at ASH. After completing the checklist, the physician's information is forwarded to the steering subcommittee of the department for which the application is being considered. The steering subcommittee acts as an advisory committee to the relevant department and the department chief as to the physician's privileges and credentialing.
¶ 6 ASH submitted to the trial court the affidavit of Cheri Moore, ASH's Director of the Department of Clinical Excellence. Moore's affidavit identified the Volume Reports as summaries of the procedures performed by a physician applicant during the previous credentialing period. The Volume Reports list the number of each procedure performed by the physician. The reports are created after the physician's reapplication for privileges and are generated for the use of committees that evaluate the physician's application for renewal.
¶ 7 ASH contended that the documents were privileged under the Act because each "was prepared and generated as part of a process for internal quality control, improving patient quality, or physician credentialing." Further, ASH claimed the documents were privileged because they reflected "statistical analysis of physician's conduct and performance done as part of hospital's credentialing decision." Plaintiffs responded with a motion to overrule ASH's claims of privilege based on the Act. The motion requested that the trial court conduct an in camera inspection of the requested documents, which the trial court conducted on March 22, 2017.
¶ 8 The trial court granted plaintiffs' motion to overrule ASH's claims of privilege. The trial court noted that the Volume Reports "are just lists of numbers, volumes of procedures done in certain time periods, and they are *** kept in the ordinary course of business ***, this is just a summary of data." The trial court went on to find that "there's no privilege to this *** listing of
what volumes of procedures were done." These findings were largely based on ASH's failure to distinguish Klaine v. Southern Illinois Hospital Services, 2014 IL App (5th) 130356; aff'd on other grounds, 2016 IL 118217.
¶ 9 On April 28, 2017, ASH indicated to the trial court that it would not produce the Volume Reports and sought a finding of friendly contempt in order to obtain immediate appellate review of the trial court's finding on March 22, 2017. The trial court entered a finding of direct civil contempt against ASH on May 18, 2017, based on ASH's refusal to disclose the Volume Reports and imposed a $300 sanction. This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 In this appeal, ASH contends that the trial court erred when it overruled ASH's claim of privilege under the Act and ordered it to produce the Volume Reports. The question of whether the Act's privilege applies is a question of law, which is reviewed de novo. Nielson v. SwedishAmerican Hospital, 2017 IL App (2d) 160743, ¶ 28. It is defendant's burden to prove whether specific documents are part of internal control process and protected by the Act. Id. The trial court's factual determination will not be reversed, "unless it is against the manifest weight of the evidence." Id. A decision is against the manifest weight of the evidence if it is unreasonable, arbitrary, or not based upon the evidence. Id.
¶ 12 Section 8-2101 of the Act provides, in relevant part:
"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 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 revoking staff privileges or agreements for services ***." 735 ILCS 5/8-2101 (West 2016).
Section 8-2102 of the Act further provides:
"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 2016).
¶ 13 In interpreting section 8-2101 of the 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). 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 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 Act. Cretton v. Protestant Memorial Medical Center, Inc., 371 Ill. App. 3d 841, 856-57 (2007).
¶ 14 The foregoing principles were examined under a very similar set of facts in Klaine. In Klaine the defendant argued that a list of procedures performed by Dr. Dressen (a co-defendant physician in the underlying medical malpractice action), which made up what was known as Group Exhibit J, were privileged pursuant to the Act. Id. at ¶ 3. The documents contained in Group Exhibit J were procedure summaries for Dr. Dressen for the years 2007 through 2011 and indicated how many of those procedures Dr. Dressen had performed. Id. at ¶ 34. The Group Exhibit J procedure summaries also contained pages entitled "Surgeon Case History," which contained patient names, procedure names, and procedure dates. Id.
¶ 15 The defendant in Klaine submitted affidavits in support of its claim of privilege from its medical staff manager and the senior corporate director of patient relations. Id. at ¶ 35. The affidavits relayed the following with regards to Group Exhibit J:
"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 [medical staff quality oversight committee] 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 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." Id. at 36.
¶ 16 The court in Klaine found that the affidavits submitted by defendant did not support a claim of privilege pursuant to the Act. Id. at 39. The affidavits did not establish that the information in the documents "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." Id. The court went on to find that furnishing discoverable information to a committee in the form of summary reports "does not transform the information" into privileged information. Id.
¶ 17 The facts in the present case are strikingly similar to those in Klaine. The process by
which the Volume Reports were generated, according to Schaaf's deposition testimony and Moore's affidavit, is precisely how the purported privileged documents were generated in Klaine. Both fact patterns illustrate that the documents were created upon a physician's reapplication for privileges. ASH is making the same argument that failed in Klaine, which is to say that documents kept in the ordinary course of the hospital's business transformed into privileged documents pursuant to the Act when repackaged as Volume Reports. Pursuant to Klaine, we reject this reasoning. Therefore, as a matter of law, the Volume Reports were not privileged under the Act, as the documents contained in the Volume Reports represent a summary of data kept in the ordinary course of ASH's business. Furthermore, the trial court's finding that the Volume Reports were kept in the ordinary course of business by ASH was not against the manifest weight of the evidence.
¶ 18 We also reject ASH's argument that the Volume Reports are privileged pursuant to the Act because their disclosure would reveal the internal processes of the committee as it conducted its review and formulating its recommendations. ASH argues that the facts in the present case are in line with those in Anderson v. Rush-Copley Med. Ctr., 385 Ill. App. 3d 167 (2008), which held that information furnished to a peer review committee in order to protect the confidentiality of its process was privileged under the Act. We disagree.
¶ 19 The Act only protects documents created specifically for the credentialing process. See Frigo v. Silver Cross Hosp. & Med. Ctr., 377 Ill. App. 3d 43, 65 (2007). Documents created in the ordinary course of business and prior to the beginning of the peer review process are not privileged under the Act. See Id. In Anderson, a medical malpractice case, the plaintiff filed a motion to compel production of documents related to the peer review committee's review of the decedent's medical care. Anderson, 385 Ill. App. 3d at 169-170. The hospital produced an
affidavit arguing that the withheld documents were generated exclusively for the peer review committee and only for its review of the decedent's care. Id. The withheld documents consisted of medical journal articles published prior to the beginning of the peer review committee and were withheld because the committee sought them out for the sole purpose of reviewing the decedent's medical care. Id. at 171. This court held that the Act protected against disclosure of the journal articles and agreed that the Act's protection includes the mechanisms of the peer review process, including information gathering and deliberations. Id. at 175. The protection of the journal articles from disclosure supported the Act's purpose of allowing the peer review process to proceed confidentially and did not raise concerns about the Act to shield adverse facts from disclosure. Id. at 177-178.
¶ 20 The facts of the present case are wholly different from those in Anderson. Here, the Volume Reports reflect a summary of data kept in the ordinary course of ASH's business and were available before the commencement of any hospital committee process. Therefore, as documents created in the ordinary course of business and prior to the beginning of the peer review process are not privileged under the Act, we cannot see how the journal articles at issue in Anderson, which were sought solely for the purpose of the hospital's committee process, are akin to the Volume Reports in the present case. We reject ASH's argument that the holding in Anderson compels this court to find that the Act protects the documents in question from disclosure here.
¶ 21 Before concluding we must address ASH's contention that the trial court's direct contempt finding should be vacated. ASH argues that seeking a "friendly" contempt order was the proper procedure for obtaining immediate appellate review of the trial court's discovery order. A trial court's finding of direct contempt presents a question of fact that a reviewing court
will not disturb unless the finding is against the manifest weight of the evidence. In re Marriage of Logston, 103 Ill. 2d 266, 286-87 (1984).
¶ 22 A "friendly" contempt order is recognized as a proper procedure to seek immediate appeal of a trial court's discovery order. Nielson, at ¶ 77. "Friendly" contempt is appropriate where a discovery order presents a unique or unsettled question of law requiring interlocutory review. Zagorski v. Allstate Ins. Co., 2016 IL App (5th) 140056, ¶ 43. "Friendly" contempt is not appropriate when the party seeking it is not challenging a unique area of law or presenting a good-faith effort to secure an interpretation of an issue that lacks direct precedent. In re Marriage of Levinson, 2013 IL App (1st) 121696, ¶ 56.
¶ 23 We agree with ASH that the trial court's finding of direct contempt should be vacated. Although the facts in Klaine are incredibly similar to those presented here, this court is not bound by the decisions of our sister districts. Schramer v. Tiger Athletic Ass'n of Aurora, 351 Ill. App. 3d 1016 (2004). ASH's strategy to seek a "friendly" contempt order was the way to obtain immediate appellate review of the trial court's discovery order in this court. We therefore vacate the trial court's direct contempt order and resulting $300 sanction.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we affirm the judgment of the circuit court of Kane County as to the finding that the Volume Reports are not privileged information under the Act. We vacate the trial court's direct contempt finding and $300 sanction for failure to produce the Volume Reports.
¶ 26 Affirmed in part. Vacated and remanded in part.