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December 31, 1997


Appeal from Circuit Court of Sangamon County. No. 96L210. Honorable Leo J. Zappa, Jr., Judge Presiding.

Honorable James A. Knecht, J., Honorable Frederick S. Green, J. - Concur, Honorable Robert J. Steigmann, J. - Concur. Justice Knecht delivered the opinion of the court.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Doctor's Hospital, Ltd. (hospital), appeals from an order holding it in contempt and imposing a $500 sanction for refusing to turn over a document in discovery to plaintiff which the hospital contends is privileged from disclosure under sections 8-2101 and 8-2102 of the Medical Studies Act (Act) (735 ILCS 5/8-2101, 8-2102 (West 1996)). We reverse and remand.

In 1996, plaintiff filed a medical malpractice claim against defendant, Dr. Arthur Becan, over surgery and treatment Becan provided to one of plaintiff's rotator cuffs in 1994. The hospital was named as a respondent in discovery. During the course of discovery, plaintiff propounded a series of interrogatories to the hospital, only one of which is at issue here. Plaintiff requested:

"Any other document prepared by person [sic] other than a member of Respondent's medical staff which is critical of or complains about the performance or competence of Arthur Becan."

Citing the Act, the hospital objected, initially, on the basis of relevance.

Plaintiff subsequently filed a motion to compel production. In response, the hospital again objected on the basis of the Act. The hospital specifically identified the existence of a September 12, 1994, letter from Robert B. Ambrose, M.D., Morristown, N.J., claiming it was a "reference letter which was generated at the request of the Doctor's Hospital Credentialing Committee" and was, therefore, privileged. The hospital also offered the court an option stating "if the court desires, Doctor's Hospital will make the Dr. Ambrose letter available for an in camera inspection."

In a subsequent docket entry, the trial court, after reviewing the authority cited by both sides, found no privilege existed and granted plaintiff's motion to compel production of the letter within 14 days. The court did not, however, take the hospital up on its offer to examine the document in camera.

The hospital then filed a motion to supplement the record with the affidavit of Karen Senger and moved the court to reconsider its prior order requiring production. The affidavit of Senger stated she was the risk manager of the hospital, had Personal knowledge of the files concerning the application for appointment to the medical staff of Dr. Becan, and had personal knowledge of the documents kept regarding the credentialing process at the hospital.

Senger then averred that the files contained a July 19, 1994, letter from the hospital to Morristown Memorial Hospital in New Jersey requesting an evaluation of Dr. Becan for the credentialing committee at the hospital. The file also contained a response to that letter from Dr. Ambrose dated September 12, 1994. The affidavit concluded that the letter "clearly indicates that it is a response to the correspondence received from Doctor's Hospital on behalf of Doctor's Hospital's credentialing committee." The hospital argued the document was privileged because it was produced at the request of the credentialing committee for use in a determination of whether permanent privileges should be extended to Dr. Becan, who had been granted temporary privileges at the time he treated plaintiff.

In a written response, plaintiff stated, initially, she had no objection to defendant's request to supplement the record with the affidavit of Senger. However, she argued the existence of the affidavit provided no basis for the court to modify its prior decision.

After a hearing, the court granted the motion to supplement but denied the motion to reconsider. Counsel for defendant indicated the hospital would not comply with the turnover order and suggested that it should be found in contempt to test the validity of the ruling by appeal. The trial court then found the hospital in direct civil contempt and imposed a $500 sanction that was stayed pending appeal.

Initially, we consider a question of procedure. On appeal, plaintiff has moved to file supplemental authorities suggesting that the Senger affidavit was not properly before the trial court because it was not attached to the original response to the motion to compel and was only offered with the hospital's motion for reconsideration. We need not resolve this issue on the merits, however, because plaintiff has waived this argument. Not only did plaintiff fail to object to consideration of the affidavit, she expressly acquiesced in it being filed when counsel indicated there was no objection to it being considered. The affidavit is, therefore, ...

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