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January 21, 1994


Appeal from the Circuit Court of Madison County. No. 89-L-7. Honorable A.A. Matoesian, Judge Presiding.

As Corrected February 4, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Goldenhersh*, Maag**, Welch

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiffs, George F. May, Sr., by the guardian of his person and estate, Mary Kay May, and Mary Kay May, individually, filed a 20-count complaint against defendants, Wood River Township Hospital (hospital), R. Anthony Marrese, M.D., Ei Shun Lin, M.D., Wen K. Pan, M.D., Bone and Joint Surgeons, Inc., and Metropolitan Pain and Anesthesiology Consortium, on January 4, 1989. The counts of plaintiffs' complaint directed against the hospital alleged that it was negligent in providing care to George F. May, Sr., and that it was negligent in granting staff privileges to Dr. Marrese. The matter comes before this court by way of interlocutory appeal by defendant hospital of an order entered by the circuit court of Madison County on November 15, 1991. This order ruled on a motion to compel answers to interrogatories filed by plaintiffs and a motion for protective order filed by the hospital in connection with certain deposition questioning of Dr. Marrese and Eugene Cowsert, the hospital's former president. We affirm.

The hospital asserted a privilege pursuant to the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 8-2101 to 8-2105) (theAct), in response to certain of plaintiffs' interrogatories which were in question in the motion to compel. The hospital further asserted that deposition questioning of Dr. Marrese or Mr. Cowsert concerning conversations that took place between them prior to the date Dr. Marrese was granted staff privileges should not be permitted because the conversations were privileged pursuant to the Act. The hospital submitted a memorandum of law and an affidavit of the current president in support of its opposition to the interrogatories and in support of its motion for protective order. In that affidavit, the president stated that the hospital made Dr. Marrese a member of the associate staff in December 1983. Attached to the affidavit were copies of the hospital's bylaws in force at that time. The affiant further stated that all documents in his possession concerning granting of associate staff privileges to Dr. Marrese "are being kept in the course of internal quality control," and that the "granting and reviewing of staff privileges at [the hospital] is done to maintain and improve the quality of patient care." Following argument on November 15, 1991, the trial court denied the hospital's motion for protective order and granted plaintiffs' motion to compel, ordering the hospital to answer all plaintiffs' interrogatories "regarding any material or information generated by anyone on the Hospital's Executive Committee or from any other source so long as it was information generated or made before the date when Dr. Marrese was granted Associate Staff privileges."

The hospital sought leave to appeal from the November 15, 1991, order of the circuit court of Madison County, pursuant to Supreme Court Rule 308(b) (134 Ill. 2d R. 308(b)). This court granted leave to appeal on January 3, 1992. The question of law certified by the trial court under Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)) in its November 15, 1991, order, is stated as follows:

"Whether Sec. 8-2101 et seq. [of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 8-2101 et seq.)] provides any protection or in any way applies to the work, or communication of and between members of a Hospital's Committee charged with the responsibility for granting medical staff privileges to a Doctor, in this case [Wood River Township Hospital's] Executive Committee, whether or not said Committee work is aimed at internal quality control, or improving patient care at the Hospital."

The trial court ruled in its November 15, 1991, order that nothing related to work done or communications between executive committee members during their meetings or Discussions related to Dr. Marrese is protected by the Act, nor are the minutes of the committee protected so long as this information existed or was created before the actual decision to grant privileges to Dr. Marrese. The court further stated that no privilege exists under the Act as to review of a physician's qualification for medical staff privileges before said physician is actually on the hospital's staff.

Section 8-2101 provides, in pertinent part:

"All information, interviews, reports, statements, memoranda or other data of * * * committees of licensed or accredited hospitals or their medical staffs, including * * * Executive Committees * * * 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, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges * * *." (Ill. Rev. Stat. 1991, ch. 110, par. 8-2101.)

Our supreme court has found that the purpose of this legislation is "to ensure the effectiveness of professional self-evaluation, by members of the medical profession, in the interest of improving the quality of health care." ( Jenkins v. Wu (1984), 102 Ill. 2d 468, 480, 468 N.E.2d 1162, 1168.) The supreme court also noted that the 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." ( Jenkins, 102 Ill. 2d at 480, 468 N.E.2d at 1168.) The supreme court has also stated:

"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. To promote these goals the legislature provided that any materials used in such studies or programs shall be confidential." Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937, 942.

Plaintiffs argue that peer review was not involved in the instant case because the materials sought in discovery concerned actions taken by the executive committee prior to the time Dr. Marrese was granted staff privileges. The hospital urges on appeal, however, that no Illinois case has interpreted the Act as being inapplicable to the credentialing process and notes that one court has held otherwise, citing Mennes v. South Chicago Community Hospital (1981), 100 Ill. App. 3d 1029, 427 N.E.2d 952. The reviewing court held in Mennes that discovery requests for all material regarding the granting of privileges to doctors who were defendants in a malpractice action is confidential and not subject to discovery under the Act. ( Mennes, 100 Ill. App. 3d at 1031, 427 N.E.2d at 953.) The court noted in Mennes that if all staff appointment material could be ...

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