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                                    Appellate Court                             Date: 2017.10.25
                                                                                14:08:49 -05'00'




                  Grosshuesch v. Edward Hospital, 2017 IL App (2d) 160972



Appellate Court         ABIGAIL KIERSTEN GROSSHUESCH, Independent Administrator
Caption                 of the Estate of Isabella Kitsen Zormelo, Deceased, Plaintiff-
                        Appellee, v. EDWARD HOSPITAL, DU PAGE NEONATOLOGY
                        ASSOCIATES, S.C., MICHAEL J. FITZGERALD, LESLIE
                        FAROLAN, DEANNA L. HOLLEMAN-DURAY, ROBERT F.
                        COVERT, and RAJEEV S. DIXIT, Defendants (Edward Hospital,
                        Defendant-Appellant).



District & No.          Second District
                        Docket No. 2-16-0972



Filed                   September 5, 2017



Decision Under          Appeal from the Circuit Court of Du Page County, No. 15-L-464; the
Review                  Hon. Ronald D. Sutter, Judge, presiding.



Judgment                Affirmed in part and vacated in part; cause remanded.


Counsel on              Hugh C. Griffin, Matthew W. McElligott, and Mary N. Nielsen, of
Appeal                  Hall Prangle & Schoonveld, LLC, of Chicago, for appellant.

                        Christopher P. Ford, of Law Office of Christopher P. Ford, of
                        Chicago, for appellee.
     Panel                    JUSTICE SCHOSTOK delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hudson and Justice Birkett concurred in the
                              judgment and opinion.


                                               OPINION

¶1          Defendant Edward Hospital claims that certain of its documents are confidential and that
       the circuit court of Du Page County should not have ordered it to produce them during
       discovery in a civil case. Edward Hospital insists that the Medical Studies Act (735 ILCS
       5/8-2101 et seq. (West 2014)) protects those documents from disclosure. We agree with the
       trial court that all the documents at issue should be produced.

¶2                                           BACKGROUND
¶3         On October 13, 2013, the plaintiff, Abigail Kiersten Grosshuesch, was admitted to Edward
       Hospital. She was 30 weeks’ pregnant, and the baby, Isabella Kitsen Zormelo, was born that
       day. Isabella suffered from numerous medical issues, including necrotizing entercolitis.
       Isabella died on November 1, 2013.
¶4         In December 2013, the plaintiff contacted Edward Hospital’s patient advocate and
       expressed concern about the care and treatment rendered to her and Isabella. Pursuant to
       Edward Hospital’s medical staff quality committee (MSQC) charter and its peer-review policy
       (both enacted in 2008), the plaintiff’s concern in conjunction with Isabella’s death constituted
       “review indicators” resulting in a referral to the MSQC. Nancy Rosenbery, in her capacity as
       the MSQC liaison, consulted two expert peer reviewers—each a member of the hospital’s
       medical staff with the same specialty as the physician whose care was being reviewed. One
       peer reviewer reviewed and commented on the obstetrical care given to the plaintiff, and one
       peer reviewer commented on the neonatal care given to Isabella. Rosenbery then entered her
       notes on each peer reviewer’s input, including the reviewer’s conclusion and/or requests for
       additional information, into an electronic database on February 24 and 25, 2014. The MSQC
       considered these notes when it met on March 5 and April 2, 2014.
¶5         On October 31, 2014, the plaintiff filed a complaint against Edward Hospital and other
       defendants. As pertinent to this appeal, on October 21, 2015, the plaintiff filed a second
       amended complaint, which included two counts. Count I was a wrongful-death action, seeking
       to recover for Isabella’s death. Count II was a survival action, seeking to recover for injuries
       sustained by Isabella between the date of her birth and the date of her death. The plaintiff
       subsequently issued a written discovery request to Edward Hospital, seeking all
       documentation regarding the care of Isabella. Edward Hospital refused to disclose the notes
       Rosenbery authored on February 24 and 25, 2014, asserting that they were privileged pursuant
       to the Medical Studies Act.
¶6         On March 3, 2016, the plaintiff filed a motion to compel an in camera inspection of the
       allegedly privileged documents.
¶7         On August 3, 2016, the trial court conducted a hearing on the plaintiff’s motion. In support
       of its claim of privilege, Edward Hospital submitted the affidavit of Christine Koman, the

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       system claims counsel for Edward-Elmhurst Health. She stated that the MSQC, in conjunction
       with Edward Hospital’s medical executive committee of the medical staff, promulgated the
       peer-review policy. The purpose of that policy was to improve the overall quality of care
       rendered and to reduce morbidity and mortality. She further stated that, after the plaintiff
       expressed her concerns about the care that she and Isabella had received, the matter was
       referred to the MSQC for peer review pursuant to the peer-review policy. Koman concluded
       that the information and conclusions resulting from the peer-review investigation—which
       were later provided to the MSQC for its consideration and evaluation, consistent with the
       peer-review policy—were part of the internal quality-control process and therefore privileged.
¶8          At the close of the hearing, the trial court ruled that the notes Rosenbery had authored on
       February 24 and 25, 2014, which contained information acquired before the MSQC met, must
       be produced because Koman’s affidavit was insufficient to raise a privilege. The trial court
       explained that there was nothing in Koman’s affidavit showing when the MSQC requested the
       investigation to begin or which member of the MSQC requested the investigation to begin. The
       trial court further found that Koman’s affidavit did not establish that the MSQC was engaged
       in the peer-review process for this occurrence prior to the March 2014 meeting.
¶9          On August 19, 2016, Edward Hospital filed a motion to reconsider and supported it with a
       second affidavit from Koman. In that affidavit, Koman stated that the MSQC had instructed
       Rosenbery, in her capacity as the MSQC liaison, to assist it by coordinating the investigation
       into the plaintiff’s concerns for the purpose of quality control and improvement and the
       reduction of morbidity and mortality. As part of her investigation, Rosenbery worked with
       consultants who reviewed the care that the plaintiff and Isabella had received. On February 24
       and 25, 2014, Rosenbery authored notes based on her investigation. Koman further asserted
       that Rosenbery’s notes “served an integral function in the peer review gathering and decision
       making process and serve as documentation vital to the process of improving the quality and
       care rendered at Edward Hospital.”
¶ 10        On October 12, 2016, following a hearing, the trial court denied Edward Hospital’s motion
       to reconsider.
¶ 11        On October 26, 2016, after Edward Hospital continued to refuse to disclose Rosenbery’s
       notes, the trial court found Edward Hospital in contempt and imposed a fine of $1 per day until
       Edward Hospital complied with the trial court’s order. Edward Hospital appeals from that
       order.

¶ 12                                            ANALYSIS
¶ 13       On appeal, Edward Hospital argues that the trial court erred in ordering disclosure of
       Rosenbery’s notes from February 24 and 25, 2014, because those notes are privileged under
       the Medical Studies Act. Specifically, Edward Hospital contends that the MQSC’s peer-review
       policy provides that, if certain indicators are met (such as the death of a patient and a concern
       raised about that death), then an investigation begins. Edward Hospital insists that, because the
       peer-review policy authorized the investigation, everything that was discovered through that
       investigation is privileged under the Medical Studies Act.
¶ 14       Whether the Medical Studies Act’s privilege applies is a question of law, which is
       reviewed de novo; however, whether specific materials are part of an internal quality-control
       process “is a factual question,” on which the defendant bears the burden. Berry v. West
       Suburban Hospital Medical Center, 338 Ill. App. 3d 49, 53-54 (2003). The trial court’s factual

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       determination will not be reversed “unless it is against the manifest weight of the evidence.” Id.
       at 54. A decision is against the manifest weight of the evidence if it is unreasonable, arbitrary,
       or not based upon the evidence. Freese v. Buoy, 217 Ill. App. 3d 234, 244 (1991).
¶ 15        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
       disclosure of information generated before the peer-review process began. Chicago Trust Co.
       v. Cook County Hospital, 298 Ill. App. 3d 396, 403 (1998).
¶ 16        We find that Edward Hospital’s argument is contrary to over 20 years of precedent
       establishing that the Medical Studies Act cannot be used to conceal relevant evidence that was
       created before a quality-assurance committee or its designee authorized an investigation into a
       specific incident. See, e.g., Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993); Chicago Trust,
       298 Ill. App. 3d 396; Berry, 338 Ill. App. 3d 49; Kopolovic v. Shah, 2012 IL App (2d) 110383;
       Lindsey v. Butterfield Health Care II, Inc., 2017 IL App (2d) 160042; Nielson v.
       SwedishAmerican Hospital, 2017 IL App (2d) 160743.
¶ 17        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
       anesthesiologist 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 contents 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 32-40. 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.
¶ 18        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. 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. Chicago Trust, 298 Ill. App. 3d at 398-401.

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¶ 19       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.
¶ 20       In Berry, the plaintiff sought to compel the defendant hospital to produce a letter written to
       the chair of the hospital’s obstetrics and gynecology department by a physician involved in the
       incident at issue, regarding the facts of the incident. The hospital claimed that the letter was
       privileged under the Medical Studies Act and refused to produce it. Specifically, the hospital
       argued that the submission of such letters or reports was the prescribed method of initiating the
       internal quality-control process at the hospital. The appellate court rejected this argument,
       finding that the letter was not privileged as a report or statement used in the course of internal
       quality control, because the hospital’s procedure did not transform letters or reports written by
       doctors into “information of” a quality-control committee, as required under the Medical
       Studies Act. Berry, 338 Ill. App. 3d at 51-54. “Even if the *** letter notified [the department
       chair, as a representative] of the investigatory committee[,] of a potential quality control issue,
       the [Medical Studies] Act’s privilege does not apply because the *** letter was information of
       the Hospital’s staff rather than information of any committee, peer-review or otherwise.” Id.
       The appellate court commented that the physician who wrote the letter could not successfully
       argue that she was acting on behalf of the department or a quality-control committee when she
       wrote the letter because the department clearly was not aware of the incident until after it
       received the letter and it did not meet to discuss the letter until months after the letter was
       written. Id. at 56.
¶ 21       In Kopolovic, this court held that a memorandum written by an anesthesiologist who was
       not a member of any peer-review or quality-control committee, expressing his concerns about
       alleged deception concerning a recent surgical procedure by a plastic surgeon, was not
       privileged under the Medical Studies Act. Kopolovic, 2012 IL App (2d) 110383, ¶ 36. The
       memo was written at the suggestion of the president and another member of the board of the
       defendant surgical center, and it was addressed to the board, the consulting committee (the
       center’s peer-review and credentialing committee), and the surgeon. Id. ¶ 7. We rejected the
       anesthesiologist’s argument that the memo was privileged because he sought to bring to light
       practices that he viewed as unethical. Id. ¶ 21. We noted that the case law (Roach and Grandi v.
       Shah, 261 Ill. App. 3d 551 (1994)) held that the privilege applied to information generated or
       created by a committee already engaged in the peer-review or quality-control process with
       regard to the incident at issue. Kopolovic, 2012 IL App (2d) 110383, ¶¶ 24-26. Even though the
       content of the memo was in harmony with the promotion of quality control, it could not be
       privileged where it was not generated by a committee of the type described in the statute. Id.
       ¶ 26. We also rejected the anesthesiologist’s argument that, because he was advised to write
       the memo by members of the board, he was engaged in ongoing quality control and, thus, the

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       memo must be considered information of the board. Id. ¶ 27. We expressed two reasons for our
       holding. First, citing Roach, Berry, and Anderson v. Rush-Copley Medical Center, Inc., 385 Ill.
       App. 3d 167 (2008), we noted chronology. Specifically, we determined that, when the memo
       was written, the board was not already engaged in the peer-review or quality-control process
       regarding the incident at issue. Kopolovic, 2012 IL App (2d) 110383, ¶¶ 28-30. Second,
       relying on Roach and Pietro v. Marriott Senior Living Services, Inc., 348 Ill. App. 3d 541
       (2004), we concluded that the actions of individual board members are not actions of the board
       as a whole and that the evidence did not reflect that the board members were authorized by the
       board to investigate, “outside the review process conducted at monthly meetings,” the
       anesthesiologist’s concerns before he wrote his memo. Kopolovic, 2012 IL App (2d) 110383,
       ¶¶ 31-32.
¶ 22       In Lindsey, in a negligence action against a nursing home, this court construed the
       Long-term Care Peer Review and Quality Assessment and Assurance Protection Act (745
       ILCS 55/1 et seq. (West 2014)) by looking at Medical Studies Act case law and held, following
       Roach and Chicago Trust, that internal quality-assurance investigation reports relating to
       incidents or accidents involving resident injuries and required under a nursing home’s
       quality-assurance process for consideration only by the quality-assurance committee were not
       privileged. Lindsey, 2017 IL App (2d) 160042, ¶¶ 11-13. We explained that a policy “declaring
       in advance” that reports are part of the peer-review process “ ‘goes too far,’ ” as the reports at
       issue constituted earlier-acquired information and were made before any peer-review
       committee met. Id. ¶¶ 15, 16 (quoting Chicago Trust, 298 Ill. App. 3d at 406).
¶ 23       This court most recently revisited the Medical Studies Act in Nielson. There, the plaintiff
       underwent a scheduled outpatient surgery at the defendant’s hospital in Belvidere to remove a
       vaginal cyst. During the surgery, the plaintiff’s bladder was injured. The plaintiff was then
       transported on an emergency basis to the defendant’s hospital in Rockford for surgical repair
       of her bladder. Three nurses involved either in the plaintiff’s original or second surgery each
       prepared a quality control report (QCR) between December 17 and 20, 2013. The defendant’s
       director of risk management averred that the defendant’s medical staff bylaws established
       various quality-assurance committees, including the quality and safety committee (QA/I). The
       QA/I requested that certain medical information be collected on its behalf in the form of QCRs.
       The QA/I developed the QCR template in 1999 in an effort to comply with the Medical Studies
       Act. QCRs were gathered at the direction and (standing) request of the QA/I. Nielson, 2017 IL
       App (2d) 160743, ¶¶ 4-9.
¶ 24       On January 29, 2015, the plaintiff filed a suit against the defendant, sounding in
       negligence. The plaintiff subsequently sought to compel the defendant to produce the three
       QCRs. The defendant refused, arguing that the documents were protected from discovery
       pursuant to the Medical Studies Act. The trial court ordered the defendant to disclose the
       documents. Id. ¶¶ 22-24.
¶ 25       On appeal, this court affirmed. We determined that the QCRs at issue were effectively
       incident reports because they did not commence an investigation and because they were used
       for the dual purposes of quality assurance and risk management. We therefore explained that,
       in light of the holdings in Roach, Lindsey, Chicago Trust, Kopolovic, and Berry, which
       preclude designating in advance that certain materials are generated by and for a
       quality-assurance or peer-review committee, and in light of the case law holding that the


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       statutory privilege does not apply where the materials are used for the dual purposes of quality
       assurance and risk management, the QCRs were not privileged. Id. ¶¶ 75, 80.
¶ 26        Based on the foregoing authorities, the Medical Studies Act does not insulate from
       discovery documents that were generated before a peer-review committee or its designee
       authorized an investigation of a specific incident. Thus, there is no merit to Edward Hospital’s
       claim that the policies its MSQC enacted in 2008 were sufficient to shield from discovery
       Rosenbery’s notes on the peer-reviewers’ input regarding the care that the plaintiff and Isabella
       received in 2013.
¶ 27        Edward Hospital attempts to distinguish the above cases on the basis that they involved
       different types of documents than are at issue here. Specifically, Edward Hospital argues that
       those cases involved a hallway conversation (Roach), a memorandum (Kopolovic), a letter
       written outside the peer-review process (Berry), witness statements (Lindsey), incident reports
       (Chicago Trust), or dual-purpose reports (Nielson). By contrast, the hospital insists,
       Rosenbery’s notes on the peer reviewers’ input are more similar to the information that was
       found to be privileged in Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d
       741 (2003), Eid v. Loyola University Medical Center, 2017 IL App (1st) 143967, and
       Anderson, 385 Ill. App. 3d 167.
¶ 28        The distinctions that Edward Hospital is trying to draw are without significance. The fact
       remains that the documents at issue herein, like those in the foregoing authorities, were
       generated before any peer-review committee or its designee authorized an investigation into a
       specific incident. Furthermore, we find the hospital’s reliance on Ardisana, Eid, and Anderson
       to be misplaced.
¶ 29        In Ardisana, the trial court directed a hospital to provide, for an in camera review, a
       privilege log, a copy of the documents in dispute, and a copy of the complaint. Ardisana, 342
       Ill. App. 3d at 744. The hospital filed the requested documents and, in addition, filed the
       affidavit of its risk manager. Id. The risk manager’s affidavit indicated that the documents at
       issue were generated in conjunction with investigations by the general surgery quality audit
       and anesthesia quality improvement audit committees. She identified the following documents
       as being privileged:
                    “1. A quality management worksheet prepared for the surgical quality audit
               committee, dated February 23, 2000, and minutes of audit committee meetings held on
               February 23 and April 19, 2000, at which plaintiff’s care was discussed.
                    2. A quality management worksheet prepared for the anesthesia department quality
               audit committee dated May 10, 2000, minutes of an audit committee meeting held May
               10, 2000, and a letter from the chairman of the audit committee to Dr. Subhash Balaney
               dated June 5, 2000, requesting certain additional information about plaintiff’s care.” Id.
¶ 30        The trial court ruled that all of the disputed documents were discoverable, in part because
       the hospital failed to establish when the peer-review process commenced and ended. Id.
       Thereafter, the hospital filed a motion to reconsider, attaching additional affidavits with
       information regarding the start and end dates of the internal review processes and information
       as to the steps taken to preserve the confidentiality of the documents generated during the
       process. Id. at 745. On appeal, the reviewing court reversed for two reasons. First, the
       reviewing court held that the documents at issue were privileged on the basis that they
       constituted recommendations, not results used in the course of internal quality control. Id. at
       747. Second, the reviewing court determined that the documents were privileged because they

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       “served an integral function in the peer-review information-gathering and decision-making
       process,” noting that an affidavit showed that they were generated in the process of
       investigations by the committees and solely for their use. Id. at 748. In so ruling, the reviewing
       court explicitly noted that the Medical Studies Act does not protect against disclosure of
       information generated before a peer-review process begins or after it ends. Id.
¶ 31        Here, Edward Hospital points to the language in Ardisana that refers to results being
       discoverable but recommendations not being discoverable, and it argues that recommendations
       are at issue here. It also argues that Ardisana is analogous because that case involves
       documents, like those here, that “served an integral function in the peer-review
       information-gathering and decision-making process.” Id. The hospital’s argument, however,
       overlooks the context of Ardisana. In Ardisana, the reviewing court explained that the
       privilege does not attach to documents generated before a peer-review process begins or after it
       ends. Id. Thus, it is apparent that the reviewing court found that the documents at issue were
       privileged because they were created while the quality audit committee was meeting or before
       its investigation had ended. As such, the instant case is distinguishable from Ardisana because
       the documents at issue here were produced before the MSQC authorized an investigation into
       the incident at issue.
¶ 32        In Eid, the reviewing court held that information generated for use by a hospital
       peer-review committee was privileged where a committee designee, pursuant to his authority
       under hospital bylaws, began an investigation of a patient’s treatment and instructed another
       committee member to collect information. Eid, 2017 IL App (1st) 143967, ¶ 39. Specifically,
       after a child died following surgery, the hospital’s risk manager, who was also a member of the
       peer-review committee, began contacting individuals to preserve records. She also contacted
       the chair of the peer-review committee, who instructed her to investigate the incident on the
       committee’s behalf, from a quality perspective. Id. ¶ 16. The chair averred that the committee
       directed and empowered individuals to assemble information about incidents and to report the
       information back to the committee for its use in evaluating and improving the quality of patient
       care. The risk manager, he further averred, was such a designee in this instance. Id. ¶¶ 17-18.
       The First District upheld the trial court’s finding that the privilege applied to documents
       generated by the risk manager after she obtained the chair’s directive on the committee’s
       behalf. Id. ¶ 39. The court noted that the 1995 amendment to the Medical Studies Act provided
       that “ ‘designees’ ” could create or generate information covered by the statute. Id. ¶ 43. Thus,
       if the risk manager and the chair were designees under the Medical Studies Act, the documents
       were privileged. Id. ¶ 44. In assessing this question, the court rejected the plaintiffs’ argument
       that the privilege does not apply to information generated before the peer-review committee,
       acting as a whole, either becomes aware of an incident or is engaged in the peer-review
       process. Id. ¶ 49. The court noted that the statute was amended after the Roach decision and
       that subsequent cases citing Roach either do not acknowledge the 1995 amendment or do not
       involve situations where an individual was authorized to act on behalf of a peer-review
       committee. Id. (citing Chicago Trust, Pietro, Anderson, and Kopolovic). The court held that
       the privilege applied to the documents generated by the risk manager after she obtained the
       chair’s directive on the committee’s behalf, where the risk manager’s and the chair’s affidavits
       established that the committee was a peer-review committee covered by the Medical Studies
       Act and where the chair used his authority to commence the committee’s investigation after
       being informed that the incident at issue might warrant peer-review proceedings. Id. ¶ 53.


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¶ 33       Eid thus stands for the proposition that, where a member of a peer-review committee,
       acting on its behalf, authorizes an investigation by a designee into a potential quality issue, any
       documents generated thereafter as part of the investigation are privileged. It is distinguishable
       from this case because a designee was not declared in Eid until after the committee became
       aware of the incident and authorized the investigation. Here, Edward Hospital is relying on
       policies its MSQC enacted five years before the incident at issue to support its claim that
       certain documents should be privileged.
¶ 34       In Anderson, the decedent died after being admitted to the defendant hospital. Nine days
       later, the hospital’s peer-review committee met to address the medical care that the decedent
       had received. Anderson, 385 Ill. App. 3d at 169. The hospital’s risk manager testified in her
       discovery deposition that the members of the committee were assigned to conduct research
       concerning issues involving the decedent’s medical care and that this research resulted in
       locating and using medical journal articles related to the decedent’s medical care. Id. at 171.
       The plaintiff sought to have the hospital disclose the medical journal articles that the
       committee had relied upon. The trial court agreed that the medical journal articles were not
       privileged under the Medical Studies Act because those articles had not been generated by a
       hospital committee in formulating its recommendations. Id. On appeal, this court reversed. Id.
       at 178. We explained that the medical journal articles were privileged because they reflected
       the committee’s internal review process, including information-gathering and deliberations.
       Id. at 175. We additionally found that, as “the medical journal articles could not reference the
       care administered to decedent, because they existed before [she] sought treatment,” “applying
       the privilege to the medical journal articles would not frustrate the [Medical Studies] Act’s
       goal of improved patient care, because doing so would not conceal any ‘adverse facts’ known
       to defendant’s medical staff about decedent’s care.” Id. at 177.
¶ 35       Anderson is distinguishable from the instant case because in that case the peer-review
       committee had already started its investigation when it located the articles in question. In the
       present case, when Rosenbery wrote her notes, the MSQC was not engaged in an investigation
       of the care that the plaintiff and Isabella had received.
¶ 36       Finally, we note that “a contempt citation is an appropriate method for testing the propriety
       of a discovery order.” Flannery v. Lin, 176 Ill. App. 3d 652, 655 (1988). Here, the record
       reveals that Edward Hospital 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 finding of contempt. See
       People ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d 745, 756 (1997).

¶ 37                                         CONCLUSION
¶ 38      The decision of the circuit court of Du Page County requiring Edward Hospital to produce
       the disputed documents is affirmed. The contempt order is vacated. We remand for
       proceedings consistent with this opinion.

¶ 39      Affirmed in part and vacated in part; cause remanded.




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