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                                     Appellate Court                            Date: 2017.04.27
                                                                                14:37:19 -05'00'




             Lindsey v. Butterfield Health Care II, Inc., 2017 IL App (2d) 160042



Appellate Court         JANNIE LINDSEY, as Plenary Guardian of the Person and Estate of
Caption                 Laura Lindsey, a Disabled Person, Plaintiff-Appellee, v.
                        BUTTERFIELD HEALTH CARE II, INC., d/b/a Meadowbrook
                        Manor of Naperville; THE BUTTERFIELD HEALTH CARE
                        GROUP, INC., d/b/a Butterfield Health Care Group, Inc.; JIN RONG
                        WANG; and VIVIAN SALVADOR, Defendants (Butterfield Health
                        Care II, Inc., d/b/a Meadowbrook Manor of Naperville, Defendant-
                        Appellant).



District & No.          Second District
                        Docket Nos. 2-16-0042, 2-16-0268 cons.



Filed                   February 9, 2017



Decision Under          Appeal from the Circuit Court of Du Page County, No. 15-L-222; the
Review                  Hon. Kenneth L. Popejoy, Judge, presiding.



Judgment                Affirmed in part and vacated in part.
                        Cause remanded.


Counsel on              Clausen Miller P.C., of Chicago (Rodd E. Elges and Paul V. Esposito,
Appeal                  of counsel), for appellant.

                        Susan Novosad and Nicole Schroeder, of Levin & Perconti, and Leslie
                        J. Rosen, of Leslie J. Rosen Attorney at Law P.C., both of Chicago, for
                        appellee.
     Panel                    JUSTICE SCHOSTOK delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hudson and Justice Spence concurred in the
                              judgment and opinion.


                                                OPINION

¶1         In this consolidated appeal, the defendant Butterfield Health Care II, Inc., doing business
       as Meadowbrook Manor of Naperville (Meadowbrook), claims that certain of its documents
       are privileged and that the circuit court of Du Page County should not have ordered it to
       produce them during discovery in a lawsuit filed against it by plaintiff, Jannie Lindsey, as the
       guardian of Laura Lindsey. Meadowbrook insists that the Medical Studies Act (735 ILCS
       5/8-2101 et seq. (West 2014)) and the Long-Term Care Peer Review and Quality Assessment
       and Assurance Protection Act (Quality Assurance Act) (745 ILCS 55/1 et seq. (West 2014))
       protect it against having to disclose those documents. We agree with the trial court that the
       documents at issue should be produced.

¶2                                           BACKGROUND
¶3          On April 29, 2012, 88-year-old Laura Lindsey was allegedly injured during a fall while she
       was in the care of Meadowbrook, a nursing home. On May 9, 2012, employees of
       Meadowbrook completed a report regarding Laura’s injury. On January 9, 2014, the plaintiff
       filed a complaint on Laura’s behalf against Meadowbrook, sounding in negligence. The
       plaintiff subsequently issued written discovery requests to Meadowbrook, seeking all
       investigation reports. Meadowbrook refused to disclose the May 9, 2012, report, asserting that
       it was privileged pursuant to the Quality Assurance Act and the Medical Studies Act because it
       was “prepared for the Facility’s Quality Assurance Committee.”
¶4          On August 25, 2015, the plaintiff filed a motion to compel, arguing that the May 9, 2012,
       report was authored neither for the purpose of internal quality control nor by an internal quality
       control committee. Meadowbrook opposed the motion and gave the report to the trial court for
       its in camera review. In support of its objection, Meadowbrook filed an affidavit of Patricia
       Stambaugh, its administrator at the time of Laura’s fall. Stambaugh averred that, as
       Meadowbrook’s administrator, she was familiar with Meadowbrook’s quality assurance
       protocols. Meadowbrook’s quality assurance process required the completion of internal
       quality-assurance-investigation reports relating to incidents or accidents involving resident
       injuries. These reports were prepared for the purpose of being considered by Meadowbrook’s
       quality assurance committee and/or its fall committee. (The fall committee met to determine
       ways that the risk of resident falls might be reduced.) The quality assurance committee met on
       a quarterly basis, and the fall committee met on a weekly basis.
¶5          On October 15, 2015, following a hearing and the trial court’s in camera review of the
       report, the trial court ordered Meadowbrook to disclose the report. The trial court found that
       the report was simply factual and that it did not contain recommendations for improvement.
       The trial court further noted that there was no indication that the report had been reviewed by
       any committee.


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¶6          On December 17, 2015, after Meadowbrook continued to refuse to disclose the report, the
       trial court found Meadowbrook in contempt. Meadowbrook appealed from that order. That
       appeal was docketed in this court as appeal No. 2-16-0042.
¶7          Thereafter, while updating discovery, Meadowbrook discovered six written witness
       statements that were prepared during the course of its internal investigation. It provided the
       plaintiff with a supplemental privilege log that included the statements, and it then filed a
       motion for a protective order. In support of its motion, Meadowbrook attached an affidavit of
       Stambaugh. She stated that the statements were prepared pursuant to Meadowbrook’s quality
       assurance practices. On April 6, 2016, the trial court denied Meadowbrook’s motion and ruled
       that the statements were not privileged. After Meadowbrook indicated that it would refuse to
       comply with the trial court’s order, the trial court held Meadowbrook in contempt.
       Meadowbrook appealed from that order. That appeal was docketed in this court as appeal No.
       2-16-0268. On May 5, 2016, this court consolidated Meadowbrook’s two appeals for review.

¶8                                              ANALYSIS
¶9          On appeal, Meadowbrook argues that the trial court erred in ordering disclosure of the May
       9, 2012, report and the six witness statements. Meadowbrook argues that the report and the
       statements were privileged under both the Medical Studies Act and the Quality Assurance Act.
¶ 10        The burden of establishing a privilege is on the party seeking to invoke it. Roach v.
       Springfield Clinic, 157 Ill. 2d 29, 41 (1993). The standard of review depends on the question
       that was answered in the trial court. Chicago Trust Co. v. Cook County Hospital, 298 Ill. App.
       3d 396, 401 (1998). “Where, as here, the defendant challenges an order compelling discovery
       of information that the defendant believes to be subject to a statutory discovery privilege, the
       question is one of statutory construction, which is purely a question of law.” Klaine v. Southern
       Illinois Hospital Services, 2016 IL 118217, ¶ 13. Thus, our review is de novo. Id.
¶ 11        This case is governed by the Quality Assurance Act (745 ILCS 55/1 et seq. (West 2014)).
       The Quality Assurance Act provides that proceedings and communications of a peer-review or
       a quality-assessment-and-assurance committee at a long-term care facility shall be privileged
       and confidential. 745 ILCS 55/4 (West 2014). No Illinois appellate court opinion has yet
       interpreted the Quality Assurance Act. We note, however, that the Quality Assurance Act
       contains language similar to that in the Medical Studies Act and covers a similar subject.
       Whereas the Quality Assurance Act pertains to quality assurance committees at long-term care
       facilities, the Medical Studies Act pertains to quality assurance committees at medical
       facilities such as hospitals. Under the in pari materia doctrine, statutes covering the same
       subject should be interpreted harmoniously. Holly v. Montes, 231 Ill. 2d 153, 161-62 (2008).
       Accordingly, we believe that it is appropriate to construe the Quality Assurance Act the same
       way that our courts have construed the Medical Studies Act.
¶ 12        The purpose of the Medical Studies Act is 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 Medical Studies Act 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.
       Richter v. Diamond, 108 Ill. 2d 265, 269 (1985). Documents generated specifically for the use
       of a peer-review committee receive protection under the Medical Studies Act. Toth v. Jensen,
       272 Ill. App. 3d 382, 385 (1995). However, the Medical Studies Act does not protect against

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       disclosure of information generated before the peer-review process began. Chicago Trust, 298
       Ill. App. 3d at 403.
¶ 13        This case is controlled by our supreme court’s decision in Roach and the First District’s
       decision in Chicago Trust. In Roach, the parents of a child with birth defects brought a medical
       malpractice claim against the hospital where the child was born and against the mother’s
       obstetricians. The child’s birth defects allegedly resulted from problems with the mother’s
       anesthesia. After the child’s birth, the hospital’s chief of anesthesiology spoke with a nurse and
       a nurse anesthetist about the cause of the defects. These conversations occurred well before the
       monthly meeting of the hospital’s peer-review committee. The parents sought to compel the
       chief of anesthesiology to disclose the content of these conversations. The hospital objected,
       citing the Medical Studies Act. The hospital asserted that, because the chief of anesthesiology
       was on the peer-review committee, his communications were privileged. The supreme court
       rejected the hospital’s argument, holding that where the committee is composed of the
       hospital’s medical staff, the committee must be involved in the peer-review process before the
       privilege will attach. Roach, 157 Ill. 2d at 40. The supreme court 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.” Id.
                at 41.
¶ 14        In Chicago Trust, a hospital patient’s ventilator accidently became disconnected. He then
       lapsed into a coma and suffered brain damage. The plaintiff filed a malpractice action against
       the hospital and sought discovery of certain incident and situation reports that hospital staff
       members created shortly after the ventilator accident. The hospital refused to disclose the
       reports. The hospital asserted that the reports were prepared at the request of the “Hospital
       Oversight Committee” and were an integral part of the quality assurance process. Chicago
       Trust, 298 Ill. App. 3d at 400. The trial court ordered that the reports be disclosed. After the
       hospital still refused to produce the reports, the trial court held the hospital in contempt. Id. at
       398-401.
¶ 15        On appeal, the reviewing court held that the trial court properly ruled that the reports at
       issue should be disclosed. Id. at 406. The court explained that documents initiated, created,
       prepared, or generated by a peer-review committee are privileged under the Medical Studies
       Act; conversely, documents that are created in the ordinary course of the hospital’s medical
       business or for later corrective action by the hospital staff are not. Id. at 402-03. The court
       specifically rejected the hospital’s suggestion that its oversight committee could invoke the
       Medical Studies Act’s protection by declaring in advance that all incident documents prepared
       by the hospital staff were part of the peer-review process. Id. at 406. The court explained:
                “The Hospital’s position goes too far. Such a policy, if effective, would swallow the
                rule. The [Medical Studies] Act would not create exceptions to disclosure. It would
                make everything confidential, except for the patient’s own medical records.” Id.
¶ 16        Here, Meadowbrook raises the same argument as did the hospital in Chicago Trust.
       Meadowbrook argues that the report and the witness statements made following the incident
       should be privileged because the report and the statements were eventually reviewed by the
       quality assurance committee. As Meadowbrook’s argument is clearly without merit under the


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       Medical Studies Act (Roach, 157 Ill. 2d at 41; Chicago Trust, 298 Ill. App. 3d at 404), it is also
       without merit under the Quality Assurance Act.
¶ 17        Meadowbrook insists that the report and the statements at issue were created only so that
       they could be reviewed by its quality assurance committee. Meadowbrook maintains that, if
       not for the existence of the quality assurance committee, the documents at issue would have
       never been created. As such, it contends, the documents should be privileged. Meadowbrook’s
       argument is unpersuasive. These documents are the same type of documents that the courts
       ordered disclosed in Roach and Chicago Trust. To adopt Meadowbrook’s argument would
       circumvent the holdings in Roach and Chicago Trust and allow Meadowbrook to keep
       everything privileged except a resident’s own medical records. That, we decline to do.
¶ 18        Meadowbrook further contends that, as the plaintiff did not submit any counteraffidavits,
       the affidavits it presented must be accepted as true. Although there is support for
       Meadowbrook’s legal proposition (Flannery v. Lin, 176 Ill. App. 3d 652, 657-58 (1988)), it
       does not advance Meadowbrook’s argument. In her affidavits, Stambaugh made clear that the
       report and the statements at issue were made prior to any peer-review committee meeting.
¶ 19        Finally, we note that “a contempt citation is an appropriate method for testing the propriety
       of a discovery order.” Id. at 655. Here, the record reveals that Meadowbrook was not
       contemptuous of the trial court’s authority. Rather, its refusal was made in good faith, as it
       merely sought appellate review of its unsuccessful assertions of privilege. Accordingly, we
       vacate the trial court’s findings of contempt. See People ex rel. Birkett v. City of Chicago, 292
       Ill. App. 3d 745, 756 (1997).

¶ 20                                          CONCLUSION
¶ 21        The trial court correctly overruled Meadowbrook’s objections to producing the disputed
       report and witness statements. The contempt orders are vacated. We remand the cause to the
       trial court for proceedings consistent with this opinion.

¶ 22      Affirmed in part and vacated in part.
¶ 23      Cause remanded.




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