                                Illinois Official Reports

                                        Appellate Court



            Klaine v. Southern Illinois Hospital Services, 2014 IL App (5th) 130356



Appellate Court           CAROL KLAINE and KEITH KLAINE, Plaintiffs-Appellees, v.
Caption                   SOUTHERN ILLINOIS HOSPITAL SERVICES, d/b/a St. Joseph
                          Memorial Hospital and Memorial Hospital of Carbondale,
                          Defendant-Appellant (Frederick Dressen and Southern Illinois
                          Medical Services, d/b/a Center for Medical Arts, Defendants).

District & No.            Fifth District
                          Docket No. 5-13-0356



Filed                     August 6, 2014



Held                       The trial court’s orders in a medical malpractice case requiring
(Note: This syllabus defendant physician to produce certain documents, including his
constitutes no part of the applications for staff privileges and lists of procedures performed by
opinion of the court but defendant, were affirmed with some modifications, including the
has been prepared by the redaction of references in the report of the medical consulting
Reporter of Decisions company retained by defendant hospital to conduct external peer
for the convenience of reviews of its physicians, which were protected by the Medical
the reader.)               Studies Act, as well as references to patient information in the
                           application for staff privileges, which were also protected; further, the
                           order finding defendant in contempt and assessing a penalty was
                           vacated.



Decision Under            Appeal from the Circuit Court of Williamson County, No. 11-L-163;
Review                    the Hon. Brad K. Bleyer, Judge, presiding.



Judgment                  Affirmed as modified in part and vacated in part; cause remanded.
     Counsel on               Kara L. Jones and John C. Ryan, both of Feirich/Mager/Green/Ryan,
     Appeal                   of Carbondale, for appellant.

                              Thomas Q. Keefe, Jr., of Keefe & Keefe, P.C., of Belleville, for
                              appellees.



     Panel                    JUSTICE SPOMER delivered the judgment of the court, with opinion.
                              Presiding Justice Welch and Justice Chapman concurred in the
                              judgment and opinion.

                                                OPINION

¶1          The defendant, Southern Illinois Hospital Services, doing business as St. Joseph Memorial
       Hospital and doing business as Memorial Hospital of Carbondale, appeals the July 9, 2013,
       order of the circuit court of Williamson County which found it to be in contempt of court for
       failing to produce documents to the plaintiffs, Carol and Keith Klaine, and which assessed a $1
       “friendly contempt” penalty in order to facilitate this interlocutory appeal pursuant to Illinois
       Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010). The circuit court entered its order upon the
       defendant’s motion after it reviewed all of the relevant documents in camera and found, in a
       letter to the parties dated May 7, 2013, that documents labeled “Group Exhibit F” and “Group
       Exhibit J” were not privileged and ordered the defendant to produce them.1
¶2          On appeal, the defendant raises the following issues with regard to “Group Exhibit F,”
       which consists of “Health Care Professional Credentialing and Business Data Gathering
       Form[s]” (applications for staff privileges) which were submitted to the defendant by
       Frederick Dressen, D.O., another defendant in the underlying medical malpractice action, but
       not a party to this appeal: (1) whether Dr. Dressen’s December 1, 2011, application for staff
       privileges is irrelevant to this malpractice action pursuant to the standard set forth in Illinois
       Supreme Court Rule 201(b)(1) (eff. Jan. 1, 2013), and thus, undiscoverable; (2) whether the
       applications for staff privileges contained in “Group Exhibit F” are privileged under section
       15(h) of the Illinois Health Care Professional Credentials Data Collection Act (the Data
       Collection Act) (410 ILCS 517/15(h) (West 2012)); and, in the alternative (3) whether certain
       information within the applications for staff privileges should be redacted because the
       information is privileged under section 8-2102 of the Illinois Code of Civil Procedure (the
       Medical Studies Act) (735 ILCS 5/8-2102 (West 2012)), section 11137 of the federal Health
       Care Quality Improvement Act (42 U.S.C. § 11137 (2012)), section 1320d of the federal
       Health Insurance Portability and Accountability Act (42 U.S.C. § 1320d (2012)), and the
       physician-patient privilege as codified in section 8-802 of the Illinois Code of Civil Procedure
       (735 ILCS 5/8-802 (West 2012)).
¶3          With regard to “Group Exhibit J,” which consists of lists of procedures performed by Dr.
       Dressen, the defendant argues that such documents are privileged pursuant to section 8-2102

             1
           The circuit court also found documents labeled “Group Exhibit B” were privileged and had to be
       produced, but the defendant is not appealing that ruling.

                                                   -2-
     of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)). Finally, the defendant argues
     that, irrespective of whether this court finds the contested documents to be privileged, this
     court should vacate the finding of contempt and assessment of the monetary penalty, because it
     refused to tender the contested documents in good faith. For the following reasons, we affirm
     the circuit court’s discovery order as embodied in its May 7, 2013, letter to the parties, with the
     following modifications: (1) references to the Greeley Report and its findings that are
     contained in the December 1, 2011, application for staff privileges, “Group Exhibit F” at
     MHCPL 37, 38, and 39, shall be redacted; and (2) any references to identifying patient
     information, contained within the applications for staff privileges contained in “Group Exhibit
     F” and the “Surgeon Case Histories” contained in “Group Exhibit J,” should be produced in
     compliance with the provisions of 45 C.F.R. § 164.512(e) (2012). In addition, we vacate the
     July 9, 2013, order that found the defendant to be in contempt and assessed a monetary penalty,
     and remand this cause for further proceedings.

¶4                                              FACTS
¶5       The plaintiffs filed an amended complaint in the circuit court of Williamson County on
     August 10, 2012, alleging medical malpractice on the part of Dr. Dressen during a gallbladder
     removal procedure that took place on February 2, 2011, causing a colon perforation and two
     additional procedures to resection the colon and create an ileostomy. In addition to the claims
     against Dr. Dressen, the plaintiffs alleged causes of action against the defendant for negligent
     credentialing of Dr. Dressen. On March 18, 2013, the plaintiffs filed a motion to compel the
     defendant to produce certain documents in discovery, and the defendant filed a response with a
     privilege log specifying that certain documents that were responsive to the plaintiffs’
     discovery requests were privileged.
¶6       The circuit court conducted an in camera review of the documents that the defendant
     claimed were privileged, which were submitted to the circuit court under seal and remain under
     seal on appeal. On May 7, 2013, the circuit court ruled that all of the documents were
     privileged with the exception of “Group Exhibit B,” “Group Exhibit F,” and “Group Exhibit
     J,” and this ruling was embodied in a letter to the parties on that date. On May 23, 2013, the
     defendant filed a motion to reconsider as to “Group Exhibit F” and “Group Exhibit J,” which
     the circuit court denied on June 10, 2013. On June 26, 2013, the defendant filed a motion for a
     finding of contempt in order to facilitate an immediate appeal from the circuit court’s order
     pursuant to the terms of Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010). On July 9,
     2013, the circuit court granted the motion and assessed a $1 “friendly contempt” penalty. The
     defendant filed a timely notice of appeal. Additional facts necessary to our analysis of the
     various issues on appeal may be set forth throughout this opinion.

¶7                                              ANALYSIS
¶8       We begin with a discussion of our standard and scope of review. First, we note that the
     plaintiffs did not file a brief on appeal. First Capitol Mortgage Corp. v. Talandis Construction
     Corp., 63 Ill. 2d 128 (1976), provides a framework for our review in such a case. The order of
     the circuit court cannot be reversed pro forma for the appellee’s failure to file a brief as
     required by rule, because a circuit court’s considered judgment should not be set aside without
     some consideration of the merits of the appeal. Id. at 131. Although we are not required to
     serve as an advocate for the plaintiffs, we may only reverse the order of the circuit court if the

                                                  -3-
       defendant’s brief demonstrates prima facie reversible error and the contentions of the brief find
       support in the record. See id.
¶9         Because the defendant is appealing a finding of direct civil contempt from noncompliance
       with a discovery order, we must necessarily review the propriety of the discovery order.
       Cangelosi v. Capasso, 366 Ill. App. 3d 225, 227 (2006). In fact, requesting that the circuit
       court enter a contempt order is a proper procedure to seek immediate appeal of a discovery
       order, which is otherwise not subject to interlocutory appeal as a matter of right. Anderson v.
       Rush-Copley Medical Center, Inc., 385 Ill. App. 3d 167, 185 (2008). If the discovery order is
       improper, the finding of contempt must be reversed. Cangelosi, 366 Ill. App. 3d at 227. If we
       find that the discovery order should be upheld, we may nevertheless vacate the finding of
       contempt and assessment of a monetary penalty if we find that the defendant’s refusal to
       produce the documents at issue was not contemptuous of the circuit court’s authority but rather
       was made in good faith based on sound legal arguments for purposes of effectuating an
       interlocutory appeal. Anderson, 385 Ill. App. 3d at 186.
¶ 10       Generally, discovery rulings are reviewed for an abuse of discretion, but the applicability
       of a privilege is reviewed de novo. Cangelosi, 366 Ill. App. 3d at 227. However, whether
       specific materials are part of an internal quality control or a specific medical study as set forth
       in section 8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)) is a factual
       determination, which will not be reversed on review unless it is against the manifest weight of
       the evidence. Anderson, 385 Ill. App. 3d at 174. With these standards in mind, we will address
       the discoverability of the documents at issue in turn.

¶ 11                                         1. “Group Exhibit F”
¶ 12                a. Relevancy of December 1, 2011, Application for Staff Privileges
¶ 13        “Group Exhibit F” consists of three applications for staff privileges, which were submitted
       by Dr. Dressen and dated February 19, 2009, August 13, 2010, and December 1, 2011. We
       begin our review of the discoverability of these documents by considering the defendant’s
       argument that the December 1, 2011, application for staff privileges is not discoverable
       because it is not relevant to the plaintiffs’ claims. We begin by noting that our review of the
       record reveals that the defendant raised the issue of the December 1, 2011, application for staff
       privileges for the first time in its motion to reconsider. There is authority in Illinois for the
       proposition that arguments first raised in a motion to reconsider are deemed forfeited and
       cannot be raised on appeal. See American Chartered Bank v. USMDS, Inc., 2013 IL App (3d)
       120397, ¶ 13; see also Sewickley, LLC v. Chicago Title Land Trust Co., 2012 IL App (1st)
       112977, ¶ 36. Although the circuit court has discretion to consider a new issue raised for the
       first time in a motion to reconsider when the party has a reasonable explanation for why it did
       not raise the issue earlier in the proceedings (see Delgatto v. Brandon Associates, Ltd., 131 Ill.
       2d 183, 195 (1989)), the record contains no such explanation. Accordingly, we find that the
       defendant has forfeited this issue on appeal.
¶ 14        Forfeiture aside, because this is not an issue of privilege, but one of relevance, our standard
       of review is for an abuse of discretion. See Cangelosi, 366 Ill. App. 3d at 227. Illinois Supreme
       Court Rule 201(b)(1) (eff. Jan. 1, 2013) defines the scope of discovery in civil cases and has
       been interpreted to allow discovery of all information that would be admissible at trial as well
       as information which is reasonably likely to lead to admissible evidence. Manns v. Briell, 349
       Ill. App. 3d 358, 361 (2004). The defendant argues that the information contained in Dr.

                                                    -4-
       Dressen’s December 1, 2011, application for staff privileges is irrelevant to the plaintiffs’
       negligent credentialing claims because the application was submitted after Dr. Dressen’s
       allegedly negligent treatment of Carol Klaine and therefore could not have been considered by
       the defendant’s credentialing committee prior to the events at issue. After considering the
       defendant’s argument, we find that the circuit court may have reasonably found that
       information contained within the application could contain information reasonably likely to
       lead to admissible evidence of the plaintiffs’ claims, such as information regarding Dr.
       Dressen’s treatment of Carol Klaine. Accordingly, we find the circuit court did not abuse its
       discretion in this regard.

¶ 15                                      b. The Data Collection Act
¶ 16       Having given consideration to the defendant’s arguments with regard to the relevancy of
       the December 1, 2011, application for staff privileges contained in “Group Exhibit F,” we turn
       now to the defendant’s argument that all of the applications for staff privileges contained in
       “Group Exhibit F” are privileged pursuant to section 15(h) of the Data Collection Act (410
       ILCS 517/15(h) (West 2012)). The Data Collection Act authorizes the Illinois Department of
       Public Health to establish a uniform hospital credentials form that includes the credential data
       commonly requested by hospitals for purposes of credentialing and requires health care
       professionals to complete these forms when applying for appointment to the medical staff of a
       hospital. 410 ILCS 517/15(a)(3), (e) (West 2012). The Data Collection Act further provides, in
       relevant part, as follows:
                “Any credentials data collected or obtained by the *** hospital shall be confidential, as
                provided by law, and otherwise may not be redisclosed without written consent of the
                health care professional ***. *** [A]ny redisclosure of credentials data contrary to this
                Section is prohibited.” 410 ILCS 517/15(h) (West 2012).
¶ 17       It is this section upon which the defendant bases its claim of privilege. Our analysis of this
       issue requires a determination of whether the above-quoted language creates a privilege
       against discovery of all applications for staff privileges created under the Data Collection Act.
       We find that it does not. When construing a statutory provision, this court must “ ‘ascertain and
       give effect to the true intent and meaning of the legislature.’ ” TTX Co. v. Whitley, 295 Ill. App.
       3d 548, 553 (1998) (quoting Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 194
       (1992)); City of Decatur v. American Federation of State, County, & Municipal Employees,
       Local 268, 122 Ill. 2d 353, 364 (1988). “Privileges are strongly disfavored because they are in
       derogation of the search for truth [citation] and must be strictly construed as an exception to the
       general duty to disclose [citation].” People ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d
       745, 749 (1997). For this reason, there is no general principle under Illinois law that provides
       that information that is otherwise discoverable is privileged because it is confidential. Id. at
       753. Our courts have been reluctant to expand or create such privileges because while the
       courts value policies that favor the admission of all relevant and reliable evidence which
       directly assists the judicial function of ascertaining the truth, it is the responsibility of the
       legislature to promote policies aimed at balancing broader social goals that may conflict in
       some way with the judicial function. Id. at 751 (quoting People v. Sanders, 99 Ill. 2d 262, 271
       (1983)).
¶ 18       With the aforementioned principles in mind, we must look only to the language of section
       8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)) to determine that where

                                                    -5-
       the legislature has intended to create a privilege, it has done so explicitly. That section provides
       that material generated under that act “shall not be admissible as evidence, nor discoverable in
       any action of any kind in any court or before any tribunal, board, agency or person.”
       (Emphasis added.) 735 ILCS 5/8-2102 (West 2012). The section goes on to provide that “[t]he
       disclosure of any such information *** shall not waive or have any effect upon its
       confidentiality, nondiscoverability, or nonadmissibility.” (Emphases added.) 735 ILCS
       5/8-2102 (West 2012). It is clear from the language of these sections that confidentiality,
       discoverability, and admissibility are distinct concepts and when the legislature means to
       provide for the nondiscoverability of confidential information, it does so explicitly.
¶ 19       For the aformentioned reason, we decline to follow the rationale of our colleagues in the
       First District in TTX Co. v. Whitley, 295 Ill. App. 3d 548, 555 (1998), which held that the
       confidentiality provision in section 917(a) of the Illinois Income Tax Act (Tax Act) (35 ILCS
       5/917(a) (West 1994)) prohibited discovery of information contained in tax returns because
       that section did not contain an exception for disclosure in judicial proceedings. As the First
       District recognized, where the courts have held that documents subject to confidentiality
       provisions in state statutes could not be disclosed during discovery or at trial, the plain
       language of those statutes specifically stated that the confidential documents were
       inadmissible in court. TTX Co., 295 Ill. App. 3d at 556. Nevertheless, the First District chose to
       impose a nondiscoverablity provision where none existed. Id. (citing Niven v. Siqueira, 109 Ill.
       2d 357, 366 (1985) (interpreting section 8-2102 of the Medical Studies Act (Ill. Rev. Stat.
       1983, ch. 110, ¶ 8-2102)); Arnold v. Thurston, 240 Ill. App. 3d 570, 574 (1992) (interpreting
       section 11-412 of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95½, ¶ 11-412)); People v.
       Ellis, 128 Ill. App. 3d 180, 183 (1984) (interpreting section 1900 of the Unemployment
       Insurance Act (Ill. Rev. Stat. 1983, ch. 48, ¶ 640))). We also note that this interpretation of
       section 917(a) of the Tax Act (35 ILCS 5/917(a) (West 1994)) was unnecessary, as the court
       ultimately determined that the information that was sought was irrelevant to the issues in the
       case. TTX Co., 295 Ill. App. 3d at 557.
¶ 20       In summary, we decline to follow the First District’s decision in TTX Co. to impose a
       privilege where the legislature has imposed a duty of confidentiality and hold that a privilege
       does not exist unless the legislature makes an explicit provision to that end. It has not done so
       with regard to applications for staff privileges created pursuant to the Data Collection Act, and
       accordingly, the circuit court did not err in its order finding the applications for staff privileges
       are not privileged.

¶ 21                                c. References to Greeley Report
¶ 22       Having found that the applications for staff privileges contained in “Group Exhibit F” are
       not privileged, we must consider, in turn, the defendant’s arguments that specific information
       contained within the applications for staff privileges must be redacted. First, the defendant
       argues that references made to findings contained in a report issued by the Greeley Company
       that are contained within Dr. Dressen’s December 1, 2011, application for staff privileges on
       pages MHCPL 37, 38, and 39 must be redacted because they are privileged pursuant to section
       8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)). According to affidavits
       contained in the record, the Greeley Company is a medical consulting company that the
       defendant retains to conduct external peer reviews of its physicians when it is deemed
       appropriate by the defendant’s medical staff quality oversight committee (MSQOC) or other

                                                     -6-
       committees. The MSQOC is a standing committee which is responsible for overseeing the
       accountability and effectiveness of the individual peer-review committees and for developing
       systematic approaches to evaluating and improving physician performance.
¶ 23       In June 2011, the peer-review committee recommended that Dr. Dressen be referred to the
       MSQOC for a “Focused Professional Practice Evaluation” (FPPE). The MSQOC approved the
       FPPE of Dr. Dressen at its meeting on June 22, 2011, and requested the Greeley Company to
       conduct that FPPE. Greeley finalized the report regarding the peer review of Dr. Dressen in
       September 2011, and it was subsequently reviewed by a focus subgroup of members of the
       MSQOC and peer-review committees. The documents exchanged between the Greeley
       Company and the defendant, as well as the report prepared by the Greeley Company, were
       produced to the circuit court for in camera inspection, and the circuit court concluded that
       these documents were privileged pursuant to section 8-2102 of the Medical Studies Act (735
       ILCS 5/8-2102 (West 2012)), which provides, inter alia, that information and documents used
       by a hospital in the course of internal quality control are not discoverable in any action.
¶ 24       We agree with the defendant that the references to the findings of the Greeley Report that
       are contained in the December 1, 2011, application for staff privileges on pages MHCPL 37,
       38, and 39 of the privilege log are privileged and must be redacted. See Ardisana v. Northwest
       Community Hospital, Inc., 342 Ill. App. 3d 741, 747 (2003) (the Medical Studies Act protects
       documents and information that arise from the workings of a peer-review committee as well as
       a peer-review committee’s recommendations and internal conclusions). However, only the
       reference to the Greeley Report and its finding should be redacted. The other information on
       these pages which relates to the status, revocation, modification, or restriction of Dr. Dressen’s
       privileges, and Dr. Dressen’s characterization of the reasons therefor, aside from the findings
       of the Greeley Report, are not privileged and are not to be redacted. See id. (results of a
       peer-review committee, taking the form of ultimate decisions made or actions taken by that
       committee, or the hospital, including the revocation, modification, or restriction of privileges,
       are not privileged).

¶ 25                        d. References to National Practitioner Data Bank
¶ 26       The defendant next argues that information within Dr. Dressen’s applications for staff
       privileges that refers to information that was reported to the National Practitioner Data Bank
       (NPDB) is privileged under section 11137 of the Health Care Quality Improvement Act (42
       U.S.C. § 11137 (2012)). The Health Care Quality Improvement Act creates the NPDB, to
       which medical malpractice insurance carriers, boards of medical examiners, and health care
       entities are required to report information respecting the payment of claims, disciplinary
       actions, and other adverse information respecting a health care professional. See 42 U.S.C.
       §§ 11131 to 11134 (2012). The act further requires that each hospital request such information
       from the NPDB for each health care practitioner who applies for privileges or staffing. 42
       U.S.C. § 11135 (2012).
¶ 27       Section 11137 of the Health Care Quality Improvement Act provides that information
       reported under that act is considered confidential and shall not be disclosed except in narrowly
       enumerated situations. 42 U.S.C. § 11137 (2012). It is pursuant to this provision that the
       defendant claims that Dr. Dressen’s references, within his applications for staff privileges, to
       information reported to the NPDB should be redacted. However, section 11137 further
       provides that “[n]othing in this subsection shall prevent the disclosure of such information by a

                                                   -7-
       party which is otherwise authorized, under applicable State law, to make such disclosure.” 42
       U.S.C. § 11137(b)(1) (2012). Pursuant to this language, we find that, although the NPDB and
       reporting entities are required to keep reported information confidential as a general rule,
       under Illinois discovery rules, the defendant is authorized, and is in fact required, to produce
       this information with respect to the plaintiffs’ negligent credentialing claim. For this reason,
       we find that this information is not to be redacted from Dr. Dressen’s applications for staff
       privileges.
¶ 28                       e. Information Regarding Treatment of Other Patients
¶ 29       The defendant’s next argument on appeal regarding information contained in Dr. Dressen’s
       applications for staff privileges that are set forth in “Group Exhibit F” is that any information
       regarding Dr. Dressen’s care and treatment of other patients must be redacted because it is
       privileged under the Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C.
       § 1320d et seq. (2012)) and the regulations promulgated thereunder. In the defendant’s brief,
       defendant’s counsel states to this court that “[n]one of the Code of Federal Regulations allow
       for the disclosure of the private health information of any of Dr. Dressen’s other patients in this
       lawsuit.” Our review of HIPAA regulations leads to a different conclusion. First, much of the
       information for which the defendant is claiming privilege does not contain “ ‘individually
       identifiable health information’ ” and is therefore not protected information under HIPAA. See
       In re Zyprexa Products Liability Litigation, 254 F.R.D 50, 54 (E.D.N.Y. 2008) (quoting 45
       C.F.R. § 164.514(a) (2008)). Furthermore, a cursory review of the scope of HIPAA reveals
       that, pursuant to HIPAA regulations, there are many circumstances in which “ ‘[a] covered
       entity may use or disclose protected health information without the written authorization of the
       individual ... or the opportunity for the individual to agree or object’ ” (id. at 53 (quoting 45
       C.F.R. § 164.512 (2008))). These regulations contain an explicit standard governing the
       disclosure of protected health information for judicial and administrative proceedings that the
       defendant’s counsel failed to cite to this court. See 45 C.F.R. § 164.512(e) (2012). The
       information contained within Dr. Dressen’s applications for staff privileges is clearly
       discoverable under the provisions of that section, either by a court order expressly authorizing
       the disclosure of the information or with a qualified protective order as defined by that section.
       Accordingly, we will not order the information to be redacted and trust that the parties will see
       that the provisions of this regulation are followed.

¶ 30                  f. Information Regarding Dr. Dressen’s Medical Condition
¶ 31       The defendant next argues that information regarding Dr. Dressen’s medical condition that
       is contained within his applications for staff privileges is protected by the physician-patient
       privilege, which provides that “[n]o physician or surgeon shall be permitted to disclose any
       information he or she may have acquired in attending any patient in a professional character,
       necessary to enable him or her professionally to serve the patient.” 735 ILCS 5/8-802 (West
       2012). Here, the information that the defendant seeks to have redacted consists of Dr.
       Dressen’s own responses to questions in his applications regarding whether he has a medical
       condition, physical defect, emotional impairment, or substance abuse issue which in any way
       impairs or limits his ability to practice medicine with reasonable skill and safety. The
       physician-patient privilege “ ‘exists as to “any information” acquired by a physician in a
       professional capacity which is “necessary” to enable him to “serve” his patient.’ ” Kraima v.
       Ausman, 365 Ill. App. 3d 530, 533-34 (2006) (quoting Pritchard v. SwedishAmerican

                                                    -8-
       Hospital, 191 Ill. App. 3d 388, 404 (1989), quoting Geisberger v. Willuhn, 72 Ill. App. 3d 435,
       437 (1979)). The information the defendant seeks to redact is Dr. Dressen’s own assessment of
       his physical and mental condition, and in no way relates to information acquired by a physician
       in a professional capacity for the purposes of diagnosing or treating Dr. Dressen as a patient.
       For this reason, we find the physician-patient privilege does not apply to this information and
       will not order the information to be redacted.

¶ 32                                          2. “Group Exhibit J”
¶ 33        Having determined that the documents in “Group Exhibit F” are discoverable with
       references to the findings of the Greeley Report redacted, we now consider the defendant’s
       argument that the documents contained in “Group Exhibit J” are privileged under section
       8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)). Although the question of
       whether a discovery privilege applies is a matter of law, which we review de novo, the question
       of whether specific materials fall within the purview of a “medical study” pursuant to section
       8-2102 of the Medical Studies Act (735 ILCS 5/8-2102 (West 2012)) is a factual question
       within that legal determination, subject to reversal on review only if it is against the manifest
       weight of the evidence. Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d 741,
       746 (2003).
¶ 34        The documents contained within “Group Exhibit J” contain “procedure summaries” for Dr.
       Dressen from the years 2007 through 2011. The documents contain a list of procedures
       performed by Dr. Dressen during these years and indicate how many of the procedures Dr.
       Dressen performed. Along with the procedure summaries, there are two pages, located at
       MHCPL 669 and 670, entitled “Surgeon Case History,” which contain more specific
       procedure data, including date, name of procedure, and patient name.
¶ 35        In support of its claim of privilege with regard to these documents, the defendant submitted
       affidavits from its medical staff manager and from the senior corporate director of patient
       relations. Because the burden of establishing a privilege under the Medical Studies Act is on
       the party seeking to invoke it, we must set forth these affidavits in detail in order to determine
       if the affidavits set forth sufficient facts to establish the applicability of the Medical Studies
       Act to the documents set forth in “Group Exhibit J.” See Ardisana, 342 Ill. App. 3d at 746.
¶ 36        According to the affidavit of the medical staff manager, the system credentialing
       committee is a standing committee for the defendant. When a physician with current staff
       privileges with the defendant requests reappointment, “documentation would be generated
       regarding the physician’s practice over the previous appointment period,” including physician
       profiles and a list of procedures that have been performed over that period. According to the
       affidavit of the medical staff manager, physician profiles are prepared “for the use of” the
       system credentialing committee for use in reappointments, as well as “for the use of” the
       MSQOC as part of ongoing professional practice evaluations that are conducted by that
       committee. According to the affidavit of the senior corporate director of patient relations,
       physician profiles are prepared “for the use of” the MSQOC and also prepared “by the
       Credentialing Committee” for their use in the reappointment of physicians to the medical staff.
       The affidavit of the senior corporate director of patient relations also states that “risk incident
       data is also compiled by the MSQOC for the use of both the MSQOC and the Credentialing
       Committee for the evaluation of physicians.” Neither of the affidavits specifically identifies
       the documents in “Group Exhibit J,” which are entitled “Surgeon Case Histories,” and the

                                                    -9-
       affidavit of the senior corporate director of patient relations does not specify which documents
       represent the “risk incident data” that is compiled by the MSQOC. Similarly, in its brief on
       appeal, the defendant refers to “risk incident data” in relation to “Group Exhibit J,” but does
       not specify which documents contain “risk incident data.”
¶ 37        As a matter of law, we recognize that section 8-2101 of the Medical Studies Act (735 ILCS
       5/8-2101 (West 2012)) applies to information and reports generated by the defendant’s
       credentialing committee in the process of the granting or denying of staff privileges, as this
       process is a part of the internal quality control of the hospital. See Stricklin v. Becan, 293 Ill.
       App. 3d 886, 889-90 (1997); see also May v. Wood River Township Hospital, 257 Ill. App. 3d
       969, 976-77 (1994) (Welch, J., dissenting). While the question of whether the act’s privilege
       applies is a question of law that is reviewed de novo, the question of whether the specific
       materials contained in “Group Exhibit J” are part of an internal quality control “ ‘is a factual
       question’ ” on which the defendant bears the burden. Webb v. Mount Sinai Hospital & Medical
       Center of Chicago, Inc., 347 Ill. App. 3d 817, 825 (2004) (quoting Berry v. West Suburban
       Hospital Medical Center, 338 Ill. App. 3d 49, 53-54 (2003)). In addition, the defendant bears
       the burden of any failure to make a complete record. Id. at 826 (quoting Grandi v. Shah, 261
       Ill. App. 3d 551, 557 (1994)). The circuit court’s factual determination of whether the
       documents at issue were part of an internal quality control will not be reversed unless it is
       against the manifest weight of the evidence. Id. (quoting Berry, 338 Ill. App. 3d at 54). A
       decision is against the manifest weight of the evidence if an opposite conclusion is clearly
       apparent or if the trial court’s findings appear to be unreasonable, arbitrary, or not based on the
       evidence. Id. (quoting Freese v. Buoy, 217 Ill. App. 3d 234, 244 (1991)).
¶ 38        In interpreting section 8-2101 of the Medical Studies Act, the Illinois Supreme Court has
       held that the purpose of the privilege set forth in that section is to ensure the effectiveness of
       professional self-evaluation, by members of the medical profession, in the interest of
       improving quality health care and is premised on the belief that, absent 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) (quoting
       Jenkins v. Wu, 102 Ill. 2d 468, 480 (1984)). To that end, information that is generated by a
       committee of a hospital engaged in any form of internal quality control during the process of
       peer review is privileged. See Roach v. Springfield Clinic, 157 Ill. 2d 29, 40 (1993). However,
       information that is obtained prior to the initiation of a peer-review process is not transformed
       into “information of” a peer-review committee merely because the information is reported to
       that body sometime later. Id. at 41. This is because “[i]f 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. For this reason, blanket conclusions that information was generated at
       the request of a reviewing committee are not enough to invoke the protections of the Medical
       Studies Act. Cretton v. Protestant Memorial Medical Center, Inc., 371 Ill. App. 3d 841,
       856-57 (2007).
¶ 39        Applying these principles to the documents contained in “Group Exhibit J,” we find that
       the affidavits that the defendant submitted in support of its claim of privilege do not set forth
       sufficient facts to mandate a finding that the privilege attaches to these documents. A review of
       the affidavits does not establish that the information contained within the documents,

                                                   - 10 -
       consisting of a history of the procedures Dr. Dressen performed at the defendant’s facilities,
       would not have been kept in the ordinary course of the defendant’s business prior to the
       credentialing committee and MSQOC commencing a peer-review process. As set forth above,
       the fact that the information was furnished to these committees in the form of a summary report
       does not transform the information, which is otherwise discoverable, into privileged
       information. The documents contain raw data with regard to procedures that Dr. Dressen
       performed and contain no data reflecting any physician’s evaluation of Dr. Dressen’s
       performance. For these reasons, we find that the defendant failed to meet its burden to prove
       that the documents contained in “Group Exhibit J” were initiated, created, prepared, or
       generated by a peer-review committee, rather than in the ordinary course of the defendant’s
       business to later be used by a committee in the peer-review process. See Chicago Trust Co. v.
       Cook County Hospital, 298 Ill. App. 3d 396, 406 (1998). Accordingly, we affirm that part of
       the circuit court’s order that required the defendant to provide “Group Exhibit J” to the
       plaintiffs. However, we note that MHCPL 669 and 670 contain identifying patient information
       and modify the order to require compliance with the provisions of 45 C.F.R. § 164.512(e)
       (2012).

¶ 40                                     3. The Contempt Order
¶ 41       Having considered all of the issues raised on appeal with regard to the defendant’s claims
       of privilege, the final issue we must address is whether the contempt order should be vacated.
       Requesting the circuit court to enter a contempt order is a proper procedure to seek immediate
       appeal of a discovery order. Green v. Lake Forest Hospital, 335 Ill. App. 3d 134, 139 (2002).
       In such situations, where the party sought the order in good faith and was not contemptuous of
       the circuit court’s authority, we may vacate the contempt order even when we find that the
       circuit court’s discovery order was proper. Webb, 347 Ill. App. 3d at 828. We find this to be
       such a case and therefore vacate the circuit court’s July 9, 2013, order, which found the
       defendant to be in contempt of court for failing to produce the contested documents to the
       plaintiffs and assessed a monetary penalty.

¶ 42                                        CONCLUSION
¶ 43       For the foregoing reasons, we affirm the circuit court’s discovery order as embodied in its
       May 7, 2013, letter to the parties, with the following modifications: (1) references to the
       Greeley Report and its findings that are contained in the December 1, 2011, application for
       staff privileges, “Group Exhibit F” at MHCPL 37, 38, and 39, shall be redacted; and (2) any
       references to identifying patient information, contained within the applications for staff
       privileges in “Group Exhibit F” and the “Surgeon Case Histories” contained in “Group Exhibit
       J,” should be produced in compliance with the provisions of 45 C.F.R. § 164.512(e) (2012). In
       addition, we vacate the July 9, 2013, order that found the defendant to be in contempt and
       assessed a monetary penalty, and remand this cause for further proceedings.

¶ 44      Affirmed as modified in part and vacated in part; cause remanded.




                                                 - 11 -
