Klaine v. S. Ill. Hosp. Servs.

• Decision Date: 06 August 2014
• Docket Number: No. 5–13–0356.,5–13–0356.
• Parties: Carol KLAINE and Keith Klaine, Plaintiffs–Appellees, v. SOUTHERN ILLINOIS HOSPITAL SERVICES, d/b/a St. Joseph Memorial Hospital and Memorial Hospital of Carbondale, Defendant–Appellant (Frederick Dressen and Southern Illinois Medical Services, d/b/a Center for Medical Arts, Defendants).
• Court: United States Appellate Court of Illinois

15 N.E.3d 525

Carol KLAINE and Keith Klaine, Plaintiffs–Appellees

v.SOUTHERN ILLINOIS HOSPITAL SERVICES, d/b/a St. Joseph Memorial Hospital and Memorial Hospital of Carbondale, Defendant–Appellant (Frederick Dressen and Southern Illinois Medical Services, d/b/a Center for Medical Arts, Defendants).

No. 5–13–0356.

Appellate Court of Illinois, Fifth District.

Aug. 6, 2014.

Kara L. Jones, John C. Ryan, Feirich/Mager/Green/Ryan, Carbondale, IL, for Appellants.

Thomas Q. Keefe, Jr., Keefe & Keefe, P.C., Belleville, IL, for Appellees.

OPINION

Justice SPOMER

delivered the judgment of the court, with 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 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 (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.

¶ 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. 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, 345 N.E.2d 493 (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, 345 N.E.2d 493. 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, 303 Ill.Dec. 767, 851 N.E.2d 954 (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, 323 Ill.Dec. 801, 894 N.E.2d 827 (2008). If the discovery order is improper, the finding of contempt must be reversed. Cangelosi, 366 Ill.App.3d at 227, 303 Ill.Dec. 767, 851 N.E.2d 954. 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 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, 323 Ill.Dec. 801, 894 N.E.2d 827.

¶ 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, 303 Ill.Dec. 767, 851 N.E.2d 954

. 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, 323 Ill.Dec. 801, 894 N.E.2d 827

. 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 Bank v. USMDS, Inc., 2013 IL App (3d) 120397, ¶ 13, 370 Ill.Dec. 52, 987 N.E.2d 818

; see also Sewickley, LLC v. Chicago Title Land Trust Co., 2012 IL App (1st) 112977, ¶ 36, 362 Ill.Dec. 876, 974 N.E.2d 397. Although the circuit...