Anderson v. Rush-Copley Medical Center

• Citation: 894 N.E.2d 827
• Decision Date: 14 August 2008
• Docket Number: No. 2-07-1272.,No. 2-07-0717.,2-07-0717.,2-07-1272.
• Parties: Judy ANDERSON, Deceased, by Leonard Anderson, Special Administrator, Plaintiff-Appellee and Cross-Appellant, v. RUSH-COPLEY MEDICAL CENTER, INC., Defendant-Appellant and Cross-Appellee. Judy Anderson, Deceased, by Leonard Anderson, Special Administrator, Plaintiff-Appellant, v. Rush-Copley Medical Center, Inc., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

894 N.E.2d 827

Judy ANDERSON, Deceased, by Leonard Anderson, Special Administrator, Plaintiff-Appellee and Cross-Appellant, v. RUSH-COPLEY MEDICAL CENTER, INC., Defendant-Appellant and Cross-Appellee.

Judy Anderson, Deceased, by Leonard Anderson, Special Administrator, Plaintiff-Appellant, v. Rush-Copley Medical Center, Inc., Defendant-Appellee.

No. 2-07-0717.

No. 2-07-1272.

Appellate Court of Illinois, Second District.

August 14, 2008.

Harry C. Lee, Law Office of Harry C. Lee, Michael R. Panter, Michael R. Panter & Associates, Chicago, for Judy Anderson, Leonard Anderson in case no. 2-07-0717.

Stephen R. Swofford, Hinshaw & Culbertson LLP, Chicago, for Rush-Copley Medical Center, Inc. in case no. 2-07-0717.

Stephen R. Swofford, Stanley J. Davidson, Hinshaw & Culbertson LLP, Chicago, for Rush-Copley Medical Center, Inc. in case no. 2-07-1272.

Harry C. Lee, Law Office of Harry C. Lee, James P. Navarre, Cogan & McNabola, P.C., Chicago, for Judy Anderson, Leonard Anderson in case no. 2-07-1272.

Justice GROMETER delivered the opinion of the court:

On February 13, 2002, Judy Anderson died in the emergency room at Rush-Copley Medical Center. Leonard Anderson (plaintiff), decedent's husband and the administrator of her estate, commenced a wrongful death and survival action against Rush-Copley Medical Center, Inc. (Rush-Copley or defendant). During discovery, defendant refused to tender to plaintiff certain documents on the basis that they are privileged under sections 8-2101 through 8-2105 of the Code of Civil Procedure (Medical Studies Act or the Act) (735 ILCS 5/8-2101 et seq. (West 2004)). As a result, defendant was held in contempt. The issues presented in this consolidated, interlocutory appeal concern the scope of the privilege provided by the Medical Studies Act.

I. BACKGROUND

On February 13, 2002, Judy Anderson presented to the emergency room at Rush-Copley with complaints of shortness of breath, wheezing, and fever. Later that day, Judy, then 49 years old, unexpectedly died. The medical examiner listed the cause of death as bronchopneumonia. Plaintiff commenced this action on April 29, 2003. In his first-amended complaint, plaintiff alleged that defendant committed various careless and negligent acts and/or omissions in diagnosing and treating decedent's condition.

During discovery, plaintiff propounded a set of interrogatories. One of the interrogatories asked defendant to state whether a hearing dealing with mortality or morbidity was held regarding decedent's care and treatment. Defendant responded to this interrogatory in the affirmative. Another interrogatory asked defendant to identify any statements, information, and/or documents related to the aforementioned hearing. Defendant refused to answer, claiming that such information is privileged under the Act. Plaintiff then requested a privilege log itemizing the documents related to the mortality and morbidity hearing. Defendant responded by informing plaintiff that decedent's medical care was the subject of a peer review by the Rush-Copley Sentinel Event¹ Analysis Committee (Committee) and reiterated its opinion that the documents generated by said Committee are privileged pursuant to the Act.

On August 16, 2005, plaintiff filed a motion to compel production of the documents related to the Committee's review, arguing that defendant failed to meet its burden of proving that any of the documents withheld are privileged under the Act. In response, defendant argued that it had met its burden of establishing the privileged nature of the documents in question. Attached to and in support of defendant's response was the affidavit of Sharon Rich, a registered nurse and the risk manager at Rush-Copley between 1997 and 2002, including when the medical care in question was administered to decedent and when said care was reviewed by the Committee. In the affidavit, Rich stated that the Committee met on February 22, 2002, February 28, 2002, March 26, 2002, and June 15, 2002. Rich also provided a description of the 33 documents withheld, which she averred "were generated exclusively for or by the Sentinel Event Analysis Committee for use only of the Committee in conducting its quality review of the medical care rendered Judith Anderson." At issue in this case are documents 6, 7, 8, 9, 10, and 13 (collectively, the medical journal articles) and documents 29 and 33 (collectively, the Action Plan).² Rich stated that these documents were stored in a three-ring notebook and were accessible only to members of the Committee. On December 15, 2005, the trial court held a hearing on plaintiff's motion to compel, during which it conducted an in camera review of the documents in question. At the conclusion of the hearing, the court granted a motion by plaintiff to depose Rich, and her deposition was taken on March 15, 2006.

At a hearing on September 12, 2006, the court heard arguments from both parties and took the matter under advisement. On October 24, 2006, the trial court entered an order denying plaintiff's motion to compel, on the basis that the documents are "protected by the Medical Studies Act." On December 7, 2006, plaintiff filed a motion for clarification and/or reconsideration of the October 24, 2006, order. In the motion, plaintiff argued, inter alia, that it is unclear from the court's order whether it ruled that each and every one of the 33 items withheld by defendant was entitled to protection under the Act. Following a hearing, the court announced that it would grant plaintiff's motion for clarification. On January 3, 2007, the court entered a revised order. Relevant here, the court determined that the medical journal articles were not generated solely for the purpose of the Committee and therefore those documents are discoverable. In addition, the court "assum[ed]" that the Action Plan, which consists of various "risk reduction strategies," was the "final result of a medical peer review committee" and therefore is not privileged under the Act.

On January 26, 2007, defendant filed a motion to reconsider portions of the order entered January 3, 2007, including the court's rulings regarding the medical journal articles and the Action Plan. Attached to the motion was a supplemental affidavit from Rich, in which she stated that: (1) the Action Plan is a summary of all issues considered by the Committee, along with suggestions for "risk reduction strategies"; (2) the Action Plan contains discussion, recommendations, and conclusions of the Committee; (3) the Committee does not actually make any changes in policy or practice but only provides suggestions; (4) it is up to others, including the medical staff, to decide if changes in policy or practice will be made; and (5) not all of the Committee's recommendations are implemented. On February 22, 2007, a hearing was held on defendant's motion. The court did not rule on the motion at that time. However, at the conclusion of that hearing, the court ordered defendant to disclose and produce any hospital policy changed as a result of the Action Plan. In response, defendant disclosed that, although no hospital policies were changed as a result of the Action Plan, a new policy was enacted.

On March 27, 2007, the trial court entered a third order regarding the discoverability of the documents in question. The court concluded that the medical journal articles are not privileged under the Act, because the Act protects only "investigative and deliberative materials generated by a hospital committee in formulating its recommendations." The court recognized that Rich testified in her discovery deposition that members of the Committee were assigned to conduct research concerning issues involving decedent's medical care and that this research resulted in locating and using medical journal articles related specifically to decedent's medical care. Nevertheless, the court noted that the medical journal articles are available to the general public and were not produced as a result of the Committee's internal investigation or study. The court emphasized that a different result would have ensued if "the medical journal articles were referenced or attached to a document which was authored by a committee member who was doing research on behalf of the committee." In such an instance, the document would constitute a "document generated for the purpose of peer review." Here, however, the articles were not attached to or referenced by any other document.

With respect to the Action Plan, the court, citing to Ardisana v. Northwest Community Hospital, Inc., 342 Ill.App.3d 741, 747, 277 Ill.Dec. 296, 795 N.E.2d 964 (2003), stated that the "results" of a peer-review committee are not privileged. In this case, the court found that the Action Plan "contained recommendations which led to the revisions of procedures for medical staff at the hospital" as well as "recommendations [that were] not necessarily implemented." The court determined that the former recommendations are not privileged, because they constituted "ultimate decisions and action taken which were a direct result of the plan and acted upon by the hospital without in [sic] any other formal process of implementation." The latter recommendations, however, remain privileged since they were not implemented. Thus, the court redacted those portions of the Action Plan that it deemed privileged. The court then provided defense counsel with a redacted copy of the Action Plan for review before it was disseminated to plaintiff.

At a hearing with respect to the status of the redacted documents, defendant asked the court for a continuance to obtain an affidavit from its director of legal affairs, Stacey Ries, in order to file a response to the redactions. The court granted the continuance over plaintiff's objection. On June 1, 2007, defendant filed its "Position on and Objection to the Court's Redactions of the Action Plan." In this filing, defendant, relying on Ardisana, argued...