                                   2018 IL App (1st) 171107

                                                                              SIXTH DIVISION
                                                                                  July 27, 2018

                                         No. 1-17-1107

                                        IN THE

                             APPELLATE COURT OF ILLINOIS

                               FIRST JUDICIAL DISTRICT


BARRY MNOOKIN, Independent Executor of        )
the Estate of Millicent E. Mnookin, Deceased, )            Appeal from the
                                              )            Circuit Court of
        Plaintiff-Appellee,                   )            Cook County.
                                              )
        v.                                    )
                                              )
NORTHWEST COMMUNITY HOSPITAL,                 )            No. 15 L 11868
an Illinois Corporation; MIDWEST ANESTHESIA )
PARTNERS, LTD., an Illinois Corporation; SYED )
AHMED, M.D., Individually; KAREN LEIDER, )
R.N., Individually; BARBARA SLAGER, R.N.,     )
Individually; VALARIE LAWRY, R.N.,            )
Individually; WOMANCARE, P.C., an Illinois    )
Corporation; and SHERI MERCHANT, M.D.,        )            Honorable
Individually,                                 )            Moira Susan Johnson,
                                              )            Judge Presiding.
        Defendants                            )
                                              )
(Northwest Community Hospital, Defendant-     )
Appellant).                                   )


       JUSTICE CONNORS delivered the judgment of the court, with opinion.
       Justices Cunningham and Delort concurred in the judgment and opinion.

                                           OPINION

¶1     Plaintiff, Barry Mnookin, independent executor of the Estate of Millicent E. Mnookin,

deceased, filed a medical malpractice and wrongful death action against Northwest Community

Hospital (NCH) and other defendants. Plaintiff alleged that after decedent underwent surgery at

NCH, she went into cardiac arrest and subsequently passed away. During discovery, plaintiff
No. 1-17-1107


served written interrogatories and a request for production of documents on NCH. NCH

presented a privilege log, asserting a privilege to the listed documents, premised on the Medical

Studies Act (Act) (735 ILCS 5/8-2101 et seq. (West 2014)). Plaintiff moved for an in camera

inspection of the documents listed in NCH’s privilege log, asking the trial court to make a

determination on discoverability. After conducting an in camera review of the documents

identified in the privilege log, the trial court overruled NCH’s claim of privilege under the Act as

to 17 of the documents and sustained NCH’s claim of privilege as to 7 of the documents. NCH

then moved for a finding of “friendly” contempt, in order to appeal the trial court’s ruling on the

production of the disputed documents. The trial court entered an order holding NCH in civil

contempt pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) for its failure to

produce the 17 documents in question and sanctioned NCH $500. NCH now appeals. For the

following reasons, we reverse the trial court’s discovery order, vacate the contempt order, and

remand for further proceedings.

¶2                                       BACKGROUND

¶3     On May 13, 2015, the decedent, while under general anesthesia, allegedly suffered a drop

in oxygen levels and cardiac arrest during a surgical procedure at NCH. The decedent was taken

to the intensive care unit (ICU) and subsequently passed away on May 28, 2015.

¶4     On November 20, 2015, plaintiff filed suit against NCH; Dr. Syed Ahmed, the

anesthesiologist during the decedent’s surgery; and other defendants. Plaintiff alleged various

acts of negligence by Dr. Ahmed, as an employee, agent, or apparent agent of NCH, during the

surgery. Plaintiff sent NCH requests for production of documents, and in response, NCH filed a

privilege log and then later an amended privilege log. In the amended privilege log, NCH

identified 24 separate documents (Document Nos. 1 through 24) as privileged and protected



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No. 1-17-1107


under the Act. Document No. 1 was titled “Quality Management Worksheet Confidential Peer

Review Information, Anesthesia and Pain Medicine.” Document No. 2 was titled “Quality

Management Worksheet, Confidential Peer Review Information Obstetrics/Gynecology.”

Document No. 3 was titled “OB/GYN Quality Improvement Audit Committee Minutes.”

Document Nos. 4, 5, and 6 were titled “Anesthesia Quality Improvement Audit Committee

Minutes.” Document Nos. 7, 8, and 9 were titled “NCH Medical Staff Quality Committee

Minutes.” Document No. 10 was titled “Sentinel Event Measures of Success Draft Report.”

Document No. 11 was titled “Sentinel Event Measures of Success Summary Report.” Document

Nos. 12 through 16 were titled “Root Cause Analysis Framework.” Document No. 17 was titled

“Patient Safety Event Debriefing Meeting Notes Pursuant to Root Cause Analysis Investigation.”

Document No. 18 was titled “Organization Self Report to the Joint Commission.” Document

Nos. 19 through 23 were titled “Meeting Notes Pursuant to Root Cause Analysis Investigation.”

Document No. 24 was titled “Summary Report to the Joint Commission for Sentinel Event

Number 224628.”

¶5     On September 23, 2016, plaintiff filed a motion asking the trial court to conduct an

in camera inspection of all the documents listed in NCH’s amended privilege log. On November

4, 2016, the trial court asked NCH to redact the portion of each privileged document for which

NCH claimed privilege. In response, NCH redacted the entire text of each document except for

printed headings. On December 5, 2016, a hearing was held on the privileged documents. At that

hearing, the trial court stated that it had gone through the “remainder of the documents that

defendants are claiming privilege; and in substance, I can agree with most of what it is that

they’re trying to claim falls under the [A]ct.” The trial court stated, “The concerns that I have fall




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No. 1-17-1107


with information that had to have been or should have been contained in medical records of some

sort that were then used in support of providing data to the group.” The trial court went on to say:

       “When I look at these forms and I see under, for example, root cause in some

       spots, there are places where it’s clear that information had to have been given

       from the medical records, and I want to be sure that those medical records had

       been tendered to the plaintiff, or where there is an indication of abstract, I want to

       know those records from which the abstract occurs, those record were given to the

       plaintiff.”

¶6     The trial court then held a brief recess and afterward stated that it wanted NCH to provide

it with more information and set a new hearing date.

¶7     On December 22, 2016, plaintiff requested that NCH produce “all non-privileged

documentation regarding any and all morbidity and mortality conferences held regarding [the

decedent].” NCH filed a response to the motion that included affidavits from Katie Viggiano,

Tiffany Ferguson, Claudia Ronayne, and Dr. Alan Loren, all attesting to the privileged nature of

the documents described in the amended privilege log. The contents of these affidavits will be

discussed in more detail below, but we will briefly discuss them here.

¶8     Ronayne, the executive director of service excellence of NCH, stated in her affidavit that

the Department of Service Excellence is the quality department of NCH that is responsible for

overseeing and implementing activities of the hospital relating to quality improvement, peer

review, patient safety and outcomes, and accreditation and certification. She stated that her

responsibilities include leading the Quality and Patient Safety Committee, which is a committee

whose charge is to monitor, initiate, guide, and coordinate organization-wide quality assessment

and improvement and patient safety activities. It is an internal quality committee of the hospital



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No. 1-17-1107


formed for the purpose of internal quality control and patient safety. Ronayne also ensures

compliance with external regulatory agencies and external reporting, including reporting to the

Joint Commission, an independent organization that accredits and certifies health care

organizations across the country.

¶9     Ronayne also stated in her affidavit that she is familiar with the peer review process that

takes place within the various departments of NCH. Each medical staff department has a

department-specific quality committee to provide a mechanism for monitoring and evaluating the

quality and appropriateness of patient care rendered by physicians within the department. Each

department has established indicators for peer review by the department-specific quality

committee. The Department of Anesthesia has indicators for peer review which are quality

screening criteria, and when one is met, it triggers the peer review process within the department.

The Department of Obstetrics and Gynecology also has indicators for peer review, and when one

is met, it triggers the peer review process within the department. The indicators for review for

both departments were attached to Ronayne’s affidavit and included triggers like death and

adverse outcomes.

¶ 10   Ronayne further stated in her affidavit that based on the circumstances surrounding the

decedent’s care, one or more of the indicators for review established by the two departments

were met. As a result, this triggered the initiation of peer review processes within each

department that were conducted by the Anesthesia Quality Improvement Audit Committee and

the OB/GYN Quality Improvement Audit Committee, two peer review committees providing a

mechanism for monitoring and evaluating the quality and appropriateness of patient care

rendered by physicians.




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No. 1-17-1107


¶ 11   Viggiano, a quality improvement resource specialist in the Department of Service

Excellence of NCH, stated in her affidavit that she provides support for medical staff peer review

quality initiatives and activities, performs ongoing reviews of cases and events that meet quality

review indicators, monitors monthly reporting for case identification, and monitors the

performance of case reviews and support of department-specific quality improvement

committees. In her role as a quality improvement resource specialist, she assembles information

and prepares data at the direction and for the use of the OB/GYN Quality Improvement Audit

Committee through the creation of quality management worksheets. Viggiano stated that the

Medical Staff Quality Committee is another committee of NCH that is an internal quality

committee formed for the purpose of internal quality control and patient safety. The committee

has the authority to conduct internal review and investigation of incidents relating to peer review,

quality and patient safety, and medical staff education.

¶ 12   Ferguson stated in her affidavit that at the time of the incident, she was a quality

improvement resource specialist in the Department of Service Excellence at NCH. In that role,

she provided support for medical staff peer review quality initiatives and activities, performed

ongoing reviews of cases and events that met quality review indicators, monitored monthly

reporting for case identification, and monitored the performance of case reviews and support of

department-specific quality improvement committees. In her role as quality improvement

specialist, she assembled information and prepared data at the direction of the Anesthesia Quality

Improvement Audit Committee through the creation of quality management worksheets.

¶ 13   Dr. Loren, NCH’s chief medical officer, stated in his affidavit that he was a member of

the Quality Committee of the Board of Directors of NCH at the time of the incident, as well as a

member of the Quality and Patient Safety Committee of NCH. Dr. Loren stated that he was



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No. 1-17-1107


authorized to direct the performance of root cause analysis investigations of patient care, which

are done for the purpose of improving the quality of patient care and reducing the risk of similar

events occurring in the future.

¶ 14   On January 20, 2017, the court held another hearing regarding the privileged documents.

Defense counsel argued that once the privilege was established for the documents under the Act,

all information, statements, interviews, or anything contained in those documents is afforded the

protection of the Act. Defense counsel noted that he had provided the affidavits of individuals

that averred those documents were prepared at the request of and for the use of the Anesthesia

Quality Improvement Audit Committee and the OB/GYN Quality Improvement Audit

Committee.

¶ 15   The trial court stated that it

       “wanted to be sure that what defendants are not doing in these cases is taking information

       that is in a medical record, generating some piece of paper and giving it to the peer

       review and then not disclosing the information to the plaintiff saying we have a privilege,

       and we used this information and you can’t have it.”

Defense counsel argued that was not the standard, stating:

       “The documents we have provided to your Honor for review are notes taken and the

       framework documents taken during the root cause analysis meetings and discussions that

       occurred during those meetings and the things that people said during those meetings,

       which is the entire purpose of the Act, so which is to encourage frank discussion among

       peers about what happened, what does everybody remember, and that’s the whole

       purpose of the Act.”




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No. 1-17-1107


The trial court stated that it would “overrule the privilege, and you can bring your motion for

[Illinois Supreme Court Rule] 308(a) language.”

¶ 16   On February 10, 2017, another hearing was held in this matter. Defense counsel stated

that after the last hearing, plaintiff’s counsel agreed to submit a list of any of the documents that

plaintiff conceded was privileged. Plaintiff’s counsel then submitted a list identifying Document

Nos. 3 through 9, which represented the meeting minutes from the quality control meetings that

were held on this matter.

¶ 17   On March 10, 2017, defense counsel asked the trial court to hold him in friendly

contempt, arguing that it was the most expeditious way to get the issue of privilege to this court.

The trial court responded:

       “The way I’ve been handling it lately is instead of the friendly contempt, which the

       Appellate Court does not like, they don’t like friendly contempt, I’ve been finding that

       the defendant is willful and contumacious and enter a $100 per day sanction. This is a[n]

       [Illinois Supreme Court Rule] 219(c) sanction as opposed to a finding of contempt.”

The trial court stated, “So I’m finding willful and contumacious behavior for failing to obey the

motion to compel under 219(c). I’m entering a $100 a day sanction against you to compel you

and coerce you to comply.”

¶ 18   On April 7, 2017, the trial court entered an order stating that due to NCH’s refusal to

produce the documents in question, the court would hold NCH in civil contempt pursuant to

Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) for failure to comply with the orders

entered on February 10, 2017, and March 10, 2017. The trial court reduced the daily sanction

entered on March 10, 2017, from $100 per day to $500 total, and “that amount shall be purged

upon the production of documents within 35 days.” NCH then filed a notice of appeal pursuant



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No. 1-17-1107


to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016), appealing the trial court’s April 7,

2017, order holding NCH in civil contempt for failing to produce Document Nos. 1, 2, and 10

through 24 of its amended privilege log.

¶ 19                                         ANALYSIS

¶ 20    On appeal, NCH contends that under the plain language of the Act, NCH’s amended

privilege log, Document Nos. 1, 2, and 10 through 24 are privileged and protected from

discovery in their entirety. Plaintiff responds that the trial court properly ruled that the

documents in question were not exempt from discovery by a purported privilege under the Act.

The Act provides in pertinent 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 *** 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).




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No. 1-17-1107


¶ 21   Section 8-2102 of the Act provides that such privileged material “shall not be admissible

as evidence, nor discoverable in any action of any kind in any court.” Id. § 8-2102. The purpose

of the 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 Act is premised on the belief that, absent the privilege, physicians might

be reluctant to sit on peer review committees and engage in frank evaluations of their colleagues.

Roach v. Springfield Clinic, 157 Ill. 2d 29, 40 (1993).

¶ 22   However, the Act was “never intended to shield hospitals from potential liability.”

Anderson v. Rush-Copley Medical Center, Inc., 385 Ill. App. 3d 167, 174 (2008). “ ‘[N]ot every

piece of information a hospital staff acquires is nondiscoverable, even if it is acquired by a peer-

review committee.’ ” Frigo v. Silver Cross Hospital & Medical Center, 377 Ill. App. 3d 43, 65

(2007) (quoting Giangiulio v. Ingalls Memorial Hospital, 365 Ill. App. 3d 823, 835 (2006)). The

Act protects documents that arise from the workings of a peer review committee, “which are an

integral part, but not the result, of the peer-review process.” Toth v. Jensen, 272 Ill. App. 3d 382,

385 (1995). Information generated prior to the commencement of the peer review process but

later disclosed to a peer review committee is not privileged under the Act. Grandi v. Shah, 261

Ill. App. 3d 551, 556 (1994). The Act “protects against disclosure of the mechanisms of the peer-

review process, including information gathering and deliberations leading to the ultimate

decision rendered by a peer-review committee, but does not protect against the discovery of

information generated before the peer-review process begins or information generated after the

peer-review process ends.” Pietro v. Marriott Senior Living Services, Inc., 348 Ill. App. 3d 541,

549 (2004).




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No. 1-17-1107


¶ 23   The burden of establishing a privilege under the Act is on the party seeking to invoke it,

which is NCH in this case. Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d

741, 746 (2003). This burden may be met by submitting the materials alleged to be privileged for

an in camera inspection, or by submitting affidavits setting forth facts sufficient to establish the

applicability of the privilege to the particular documents being withheld. Ekstrom v. Temple, 197

Ill. App. 3d 120, 127 (1990). Whether a discovery privilege applies is a matter of law, subject to

de novo review. Webb v. Mount Sinai Hospital & Medical Center of Chicago, Inc., 347 Ill. App.

3d 817, 825 (2004). However, “whether specific materials are part of an internal quality control

or a medical study 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.

¶ 24   In the case at bar, NCH submitted several affidavits. NCH also submitted the documents

in question for in camera inspection by the trial court. Upon review of the submitted affidavits

and the documents in question, which were filed under seal, we find that NCH met its burden of

proof to establish the applicability of the medical studies privilege to the documents in question.

We will now discuss each of those documents in turn.

¶ 25                             Quality Management Worksheets

¶ 26   The first two documents at issue (Document Nos. 1 and 2) are titled: “Quality

Management Worksheet, Confidential Peer Review Information, Anesthesia and Pain,” and

“Quality Management Worksheet, Confidential Peer Review, Obstetrics/Gynecology.” This

court examined similar documents under seal in Ardisana, a case that also involved NCH, and

found that a quality management worksheet prepared for the surgical audit committee and a

quality management worksheet prepared for the anesthesia department quality audit committee,

both constituted privileged documents under the Act. Ardisana, 342 Ill. App. 3d at 748.



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No. 1-17-1107


Specifically, this court found that “each of the documents establishes, by its own content, that it

served an integral function in the peer-review information-gathering and decision-making

process.” Id. The court found that it was clear from the quality management/improvement

worksheets’ content that “they were authored for the use of a peer-review committee and are thus

entitled to protection from disclosure.” Id. at 749. In making its decision, this court noted that

NCH had provided the affidavit of its risk manager, which stated that the documents in question

were generated in the process of investigations by the general surgery quality improvement audit

and anesthesia quality improvement committees, were prepared solely for those two committees,

and were used exclusively by those two committees. Id. at 748. The court noted that “[w]hen the

facts within an affidavit are not contradicted with a counteraffidavit, they must be taken as true.”

Id.

¶ 27   Similarly here, we have reviewed the two quality control worksheets and the

accompanying affidavits of Ferguson, who authored the first document, and Viggiano, who

authored the second document. We conclude that these two worksheets served an integral

function in the peer review information-gathering and decision-making process.

¶ 28   According to Ferguson’s affidavit, the quality improvement resource specialist at the

time, the Anesthesia Quality Improvement Audit Committee is the peer review committee

specific to the Department of Anesthesia, and it provides a mechanism for monitoring and

evaluating the quality and appropriateness of patient care. Ferguson stated that she was familiar

with certain peer review activities that took place as a result of the care of the decedent and that a

Department of Anesthesia peer review began shortly after the death of decedent on May 28,

2015. Ferguson stated that the peer review was triggered by decedent’s death as meeting one of

the “established indicators for review by the Anesthesia Quality Improvement Audit



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No. 1-17-1107


Committee.” Ferguson stated that the document in question was “prepared by me at the direction

of and for the exclusive use of the Anesthesia Quality Improvement Audit Committee.”

¶ 29   Viggiano, a quality improvement resource specialist at NCH, stated in her affidavit that

she authored the second document in the amended privilege log, titled “Quality Management

Worksheet, Confidential Peer Review, Obstetrics/Gynecology.” She stated that the OB/GYN

Quality Improvement Audit Committee is the peer review committee specific to the Department

of Obstetrics and Gynecology. The committee also directs and empowers one or more

individuals to assemble information about the patient care events. Viggiano stated that she

assembles information and prepares data at the direction and for the use of the committee

through the creation of quality management worksheets. Viaggiano stated that the peer review

was triggered by the decedent’s death as meeting one of the established indicators for review by

the committee.

¶ 30   We find, based on the information contained in these affidavits, and on our own review

of the first two documents on NCH’s amended privilege log, that NCH has met its burden of

proof to show that the quality management worksheets were authored for the use of peer-review

committees and are thus entitled to protection from disclosure. See id. at 749.

¶ 31                          Joint Commission Documents

¶ 32   The next documents at issue in NCH’s amended privilege log that we will discuss are the

joint commission documents (Document Nos. 10, 11, 18, and 24). Document No. 10 is titled

“Sentinel Event Measures of Success Draft Report,” Document No. 11 is titled “Sentinel Event

Measures of Success Summary Report,” Document No. 18 is titled “Organization Self Report to

the Joint Commission,” and Document No. 24 is titled, “Summary Report to the Joint

Commission for Sentinel Event Number 224628.”



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No. 1-17-1107


¶ 33   In support of its claim of privilege, NCH submitted the affidavit of Ronayne, the

executive director of service excellence of NCH. Ronayne stated that the Department of Service

Excellence is the quality department of NCH which is responsible for overseeing and

implementing activities of the hospital relating to quality improvement, peer review, patient

safety, and accreditation and certification. Ronayne stated that her predecessor was Tricia Elliott,

who held the position during the incident in question. Ronayne stated that she was familiar with

the file maintained by the Department of Service Excellence, which concerns the investigation of

the care rendered to the decedent. Ronayne stated that NCH is accredited by the Joint

Commission. Ronayne noted in her affidavit that the Joint Commission adopted a sentinel event

policy in 1996 to help hospitals that experience serious adverse events improve safety and learn

from those sentinel events. The purpose of reporting a sentinel event to the Joint Commission is

to prevent similar patient safety events in the future and to improve the quality of care. Ronayne

averred that the reporting of an event to the Joint Commission by NCH is within the scope of the

Quality and Patient Safety Committee. Ronayne stated that she was familiar with the report made

to the Joint Commission by Elliott. Ronayne indicated that Document Nos. 10, 11, 18, and 24

were generated by Elliott pursuant to the authority granted to her and her staff by the Quality and

Patient Safety Committee. Ronayne stated: “Document 18 is the initial report made to The Joint

Commission on May 15, 2015; Document 24 is the Summary Report to the Joint Commission;

Document 10 is a draft of Ms. Elliott’s summary report to the Joint Commission; and Document

11 is a follow up Summary Report to The Joint Commission.”

¶ 34   After reading Ronayne’s affidavit and reviewing the sealed documents in question, we

find that they are not discoverable. In Niven, 109 Ill. 2d at 362, our supreme court addressed the

issue of whether the Joint Commission had to produce certain documents including, “ ‘all other



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No. 1-17-1107


documents, records and other papers and instruments of writing regarding or relating to

Northwestern Memorial Hospital.’ ” Northwestern Memorial Hospital and the Joint Commission

objected on the basis of the Act. Our supreme court noted that the purpose of the 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. Id. at 366. Our supreme court found that

“allied medical societies” listed in the Act can “only refer to those medical societies which are

closely related to the purposes of the Act, i.e., those medical societies that engage in studies or

programs designed to further the purposes of the Act.” Id. Our supreme court found that a

common understanding of the term “medical society” would “certainly include the Joint

Commission, which is, as its name implies, a joint undertaking of several established medical

societies.” Id. at 366-67. The court found that the materials sought by the plaintiffs were gathered

“as part of a program designed to improve quality control and patient care” and that therefore

“the materials fall under the protection of the Act.” Id. at 367.

¶ 35   Likewise in the case at bar, we find that these Joint Commission documents are protected

under the Act because “the legislature intended the disclosure of confidential materials to the

Joint Commission to be an activity protected by the confidentiality guarantees of section 8-2101

[of the Act].” Id. at 367-68.

¶ 36                            Root Cause Analysis Documents

¶ 37   The final group of documents at issue are the root cause analysis documents, which

include Document Nos. 12 through 16, which are titled, “Root Cause Analysis Framework,”

Document No. 17, titled “Patient Safety Event Debriefing Meeting Notes Pursuant to Root Cause

Analysis Investigation,” and Document Nos. 19 through 23, titled, “Meeting Notes Pursuant to

Root Cause Analysis Investigation.” Ronayne stated in her affidavit that she and other members



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No. 1-17-1107


of the Department of Service Excellence are responsible for conducting root cause analysis

investigations of specific patient cases in order to investigate opportunities for quality

improvement, to identify patient safety issues, and to make recommendations for further

improvement based on the findings. Ronayne explained that a root cause analysis identifies

causal factors of the adverse outcome or variation in care and why they occurred, focusing

primarily on systems and processes. By identifying the root cause of an adverse event, patient

care is improved and recurrence is eliminated or mitigated. Ronayne stated that pursuant to

NCH’s quality improvement process, the decedent’s care was identified as an event which

necessitated a root cause analysis and Dr. Loren, chief medical officer and as a member of the

Quality and Patient Safety Committee, authorized Elliott and her department to initiate a root

cause analysis investigation, which began on May 14, 2015, a day after the decedent’s surgery.

Ronayne stated that Elliott and another member of her department, Bridget Bucholz, were

designated gather information regarding the incident and conduct a root cause analysis

investigation. Ronayne stated that Document Nos. 17, 19, 20, 21, 22, and 23 are the notes that

Bridget Bucholz took during meetings she conducted pursuant to this investigation on May 14,

May 18, May 19, May 20, and June 10, 2015. A review of these sealed documents reveals that

those are indeed her notes from those meetings. Ronayne stated that Document Nos. 12-16 were

generated by Bucholz to detail the investigation, deliberations, analysis, and conclusions of the

root cause analysis investigation. A review of those sealed documents reveals the same. Ronayne

stated that the root cause analysis investigation and meetings were performed in the course of

internal quality control as part of NCH’s quality improvement process.

¶ 38   Dr. Loren, the chief medical officer of NCH, stated in his affidavit that he was a member

of the Quality Committee of the Board of Directors of NCH at the time of the incident, as well as



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a member of the Quality and Patient Safety Committee of NCH. Dr. Loren stated that he was

authorized to direct the performance of root cause analysis investigations of patient care, which

are done for the purpose of improving the quality of patient care and reducing the risk of similar

events occurring in the future. Dr. Loren stated that on May 14, 2015, he was advised of the

occurrence with decedent. Attached to his affidavit was a memo dated May 14, 2015, directing

Elliot and her department to perform a full root cause analysis investigation into the event that

occurred involving the decedent.

¶ 39   The express language of the Act states that a privilege applies to

       “[a]ll 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 ***, 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

       ***.” 735 ILCS 5/8-2101 (West 2014).

The purpose of the Act “is to ensure that members of the medical profession will effectively

engage in self-evaluation of their peers in the interest of advancing the quality of health care.”

Roach, 157 Ill. 2d at 40. Here, we find that these root cause analysis documents fall squarely

within the express language of the Act and the purpose of the Act, as the documents were

generated by designees of the Quality and Patient Safety Committee in the course of internal

quality control for the purpose of reducing morbidity or mortality or for improving patient care.

¶ 40                                   Trial Court’s Concerns




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¶ 41    We briefly address the trial court’s comments that were made during the hearings on this

issue of the privilege log. During the January 20, 2017, hearing the trial court stated, “I’m talking

not about the actual piece of paper, but the information that’s contained therein, which,

obviously, in my opinion was created before the peer review occurred.” According to Viggiano

and Ferguson, the peer review began shortly after the decedent’s death on May 28, 2015. Our

review of the sealed documents does not reveal any peer review documents that were generated

before May 28, 2015. There are, however, root cause analysis investigation documents that were

generated before that date. Ronayne stated in her affidavit that the root cause analysis

investigation began on May 14, 2015, a day after the decedent’s surgery. Dr. Loren similarly

stated in his affidavit that he was advised on May 14, 2015 of an occurrence on May 13, 2015,

involving decedent’s care and that he ordered the root cause analysis investigation. Accordingly,

there are certainly documents in the privilege log that were generated before the peer review

process began, however, as discussed above, those documents are privileged, as they fall

squarely within the purview of the Act where they were generated by designees of the Quality

and Patient Safety Committee in the course of internal quality control for the purpose of reducing

morbidity or mortality or for improving patient care. 735 ILCS 5/8-2101 (West 2014).

¶ 42    Also during the January 20, 2017, hearing the trial court stated it

        “wanted to be sure that what defendants are not doing in these cases is taking information

        that is in a medical record, generating some piece of paper and giving it to the peer

        review and then not disclosing the information to the plaintiff saying we have a privilege,

        and we used this information and you can’t have it.”

It also stated, “my concern is, and I think I articulated it before, is that if the information that is

in the medical records is missing, observations, discussions between medical personnel, that was



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only disclosed in the peer review, then the plaintiff can’t even begin to ask those questions.

That’s a problem.” The court further stated,

       “if medical records don’t contain information that somehow somebody then went to the

       peer review and disclosed, that information was not generated in my opinion for purposes

       of the peer review, and that is what is being hidden from the plaintiff, and that is not what

       the case law sustains.”

¶ 43   We believe that through these statements the trial court was attempting to express the

same concerns expressed in Roach—that simple act of furnishing a peer review committee with

earlier-acquired information would not be sufficient to cloak that information with the statutory

privilege, otherwise a hospital would be able to effectively insulate from disclosure virtually all

adverse facts known to its medical staff, except for those matters actually contained in the

patient’s medical records. Roach, 157 Ill. 2d at 41-42. However, after careful examination of the

affidavits and their accompanying exhibits, as well as the sealed documents themselves, there is

nothing to suggest that NCH furnished a peer review committee with earlier-acquired

information in order to hide that information. Rather, it is evident that an internal investigation

was launched by peer review committees after the decedent’s surgery because the incident met

certain triggering criteria. The documents in question fall squarely within the Act’s description of

privileged documents, which include

       “[a]ll 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 ***, or their designees (but not the medical records

       pertaining to the patient), used in the course of internal quality control or of medical



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        study for the purpose of reducing morbidity or mortality, or for improving patient care.”

        735 ILCS 5/8-2101 (West 2014).

¶ 44	   Moreover, we note that plaintiff has received the decedent’s medical records and that

        “not only do medical malpractice plaintiffs have full and complete access to their own

        records, but they can also depose all persons involved in their treatment and engage

        experts to give opinions as to the quality of care received. Therefore, the denial of this

        information to such plaintiffs should have little impact on their ability to maintain their

        cause of action.” Jenkins v. Wu, 102 Ill. 2d 468, 479 (1984).

¶ 45    As a final matter, we note that the “results” of the peer review process are not privileged.

See Ardisana, 342 Ill. App. 3d at 747. Results of a peer review committee “take the form of

ultimate decisions made or actions taken by that committee, or the hospital, and include the

revocation, modification or restriction of privileges, letters of resignation or withdrawal, and the

revision of rules, regulations, policies and procedures for medical staff.” Id. “The

recommendations and internal conclusions of peer-review committees, which may or may not

lead to those results, are not discoverable.” (Emphasis in original.) Id. The only issue before us

is whether certain documents in the privilege log are privileged under the Act, and we have

determined that they are privileged. Any further inquiries into peer review results, names of

committee members, or other matters pertaining to this cause of action, we presume will take

place on remand.

¶ 46                                      CONCLUSION

¶ 47    For the foregoing reasons, we reverse the trial court’s discovery order, vacate the

contempt order, and remand for further proceedings.

¶ 48    Reversed in part and vacated in part.



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¶ 49   Cause remanded.




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