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Chicago Trust Co. v. Cook County Hospital

July 30, 1998

CHICAGO TRUST COMPANY, AS GUARDIAN OF THE ESTATE OF DONALD MACON, A DISABLED PERSON, PLAINTIFF-APPELLEE,
v.
COOK COUNTY HOSPITAL, A MUNICIPAL CORPORATION; COUNTY OF COOK, A MUNICIPAL CORPORATION AND BODY POLITICAL; BOARD OF COMMISSIONERS OF COOK COUNTY, A MUNICIPAL CORPORATION; PURITAN-BENNETT CORPORATION, A FOREIGN CORPORATION; AND HUDSON RESPIRATORY CARE, INC., A FOREIGN CORPORATION, DEFENDANTS, AND THE OFFICE OF THE STATE'S ATTORNEY OF COOK COUNTY, CONTEMNOR-APPELLANT.



The opinion of the court was delivered by: Justice Wolfson

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.

HONORABLE LYNN M. EGAN, JUDGE PRESIDING.

In this case we review Cook County Hospital's claims that certain of its documents are confidential and that the trial court should not have ordered the Hospital to produce them during discovery in a civil case.

Cook County Hospital (the Hospital) appeals the trial court's July 25, 1997, order. The court found the Hospital in contempt for refusing to produce certain documents requested in discovery by Chicago Trust Company, guardian of the estate of Donald Macon. The Hospital contends the Medical Studies Act protects against disclosure of all of these documents, and that the attorney-client privilege prevents disclosure of two of them. We agree with the trial court that all the documents should be produced.

FACTS

Donald Macon (Macon) was admitted to Cook County Hospital (the Hospital) on August 16, 1995, and placed on a ventilator. Two days later, Macon accidentally became disconnected from the ventilator. Deprived of oxygen, Macon lapsed into a coma and suffered brain damage. Macon is now a non-verbal, non-responsive quadriplegic.

Chicago Trust Company (Chicago Trust) filed a medical malpractice/products liability complaint on behalf of Macon's estate against, inter alia, the Hospital. The complaint alleged the Hospital failed to provide adequately trained staff members and failed to operate the ventilator properly.

During the course of discovery, Chicago Trust requested documents from the Hospital. The Hospital filed its objections to this request, along with a privilege log, which identified 28 documents withheld from production under the Medical Studies Act (see 735 ILCS 5/8-2101 et seq. (West 1992 & Supp. 1997)) and the attorney-client privilege (see 134 Ill. 2d R. 201(b)(2)).

Of these 28 documents, the trial court eventually ordered the Hospital to produce 13 of them. The Hospital later waived its privilege claims on four of these 13 documents. The parties dispute nine documents, two of which are duplicates.

Document 2--dated August 18, 1995, and entitled "Situational Report"--was authored by Lisanna Jose, a respiratory therapist at the Hospital. This document describes Jose's conduct on the date of Macon's accident.

Document 4--dated August 19, 1995, and entitled "Incident Report"-- was authored by Corazon Allegre, a registered nurse at the Hospital, and an unidentified person named Maureen Moravitz. This document describes Allegre's conduct on the date of Macon's accident and orders the person completing it to "RETURN TO DEPT. OF RISK MANAGEMENT." Macon's inpatient notes, written by a Dr. Campos, state: "Aware of incident report and accident occurred last night."

Document 5/attachment 3--dated September 5, 1995, and entitled "MEMORANDUM RE: VENTILATOR CIRCUITS WITH IN-LINE NEBULIZERS"--was authored by Dr. Phillip Bodenstab, the Hospital's Medical Director of Respiratory Care. This document, addressed to nine doctors and "All Department Chairpersons," notifies its recipients that ventilators may disconnect during certain procedures and advises preventative measures.

Document 5/attachment 4--dated August 30, 1995, and entitled "GUIDELINES WHEN USING PARALYTIC AGENTS FOR MECHANICAL VENTILATION"--was authored by Dr. Corey Franklin, the Hospital's Director of MICU. This document, addressed to physicians, nurses, respiratory therapists, and pharmacists, provides tips for patient care during ventilation.

Document 5/attachment 5--dated September 6, 1995,--was authored by Dr. Franklin. This document, addressed "To: MICU Attendings," S. Karno, and B. Reilly, reviews the scheduling rules governing attending physicians' rounds over weekends.

Document 18--dated September 1995, and entitled "Minutes of meeting re: action plan for three shifts"--has no named author. This document, actually a series of three substantially identical two-page documents, apparently represents the minutes from three nursing "MINI-MEETING[S]" for three nursing shifts. This document was signed and dated by several persons, probably nurses at the Hospital who attended these meetings.

Document 20--dated September 7, 1995, and entitled "Memorandum to staff re: action plan"--was authored by Dr. Frank Brown, Director of the Hospital's Division of Respiratory Care. This document, addressed to the "RESPIRATORY THERAPY STAFF," describes the corrective action initiated by the Respiratory Care Division to provide safe ventilation.

Document 22 is the same as document 5/attachment 3.

Document 26 is the same as document 5/attachment 4.

The trial court made a series of rulings regarding these documents, allowing the Hospital to supplement its privilege log and to amend its supporting affidavits.

The Hospital supported its assertions with an affidavit from Dr. Larry J. Goodman (Goodman), Medical Director of the Hospital and Chairman of the Hospital Oversight Committee (HOC), and four affidavits from Shellie Karno (Karno), an associate administrator and attorney with the Hospital.

Goodman's affidavit described the HOC as "*** a committee of administrative personnel and senior attending physicians *** responsible for the various clinical departments' oversight functions that reviews significant patient care and systems issues ***." The HOC "*** meets twice monthly and ad hoc for the purpose of reviewing patient care, systems issues and incidents in order to reduce patient mortality and morbidity ***." Goodman said the HOC "*** reports its findings and recommendations for corrective action to the Cook County Hospital Quality Assurance Committee [QAC]." Goodman said the incident reports in Macon's case were forwarded to the QAC.

According to Goodman, the incident reports "*** were prepared at the request of the [HOC]." Goodman finally noted:

"*** [T]hese [incident] reports were an integral part of the quality assurance process and part of the multiple Committee review process ***."

Karno's first affidavit echoed Goodman's affidavit, adding only:

"That at each phase of this [committee] process, the contents of the incident reports were analyzed, evaluated and discussed and recommendations were made regarding the contents of the incident reports."

Karno's second affidavit mirrored her first affidavit, except it identified the incident and situational reports in Macon's case as documents 1-5 in the Hospital's privilege log.

Karno's third affidavit did not substantively address the disputed documents, and only briefly mentioned documents 20 and 22: "*** Documents 19, 20 and 22 were the attachments to Document 21."

Karno's fourth affidavit addressed some of the disputed documents. After describing her job as attorney for the Hospital, Karno said:

"*** [A]s the attorney for Cook County Hospital, I requested that reports, such as those identified as Documents 1, 2, 3, 4 and 5, be prepared for the purpose of rendering legal opinions to the [HOC] regarding incidents such as this occurrence." (Emphasis added.)

Karno said, "I reviewed Documents 1, 2, 3, 4 and 5 and reported to the [HOC] regarding my legal opinions based on these Documents." (Emphasis added.) Karno also said:

"*** the [HOC] reviewed Documents 1, 2, 3, 4 and 5 and relied on those Documents in preparing its recommendations for action to be taken for the purpose of improving ...


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