Appeal from the Circuit Court of Cook County 97 L 7536 The Honorable Kathy Flanagan, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
Defendant-appellant, Jackson Park Hospital (JPH), appeals from the trial court's order compelling it to disclose certain documents and its order finding JPH in contempt of court for failing to turn over those documents to the plaintiff-appellee, Kenya Rounds, special administrator of the estate of Deonte Warren, deceased. The issues presented for review are: (1) whether the trial court erred in compelling the production of the documents where the defendant claims they were generated within the scope of the attorney-client privilege; and (2) whether the trial court erred in finding JPH in contempt of court and imposing a fine of $100 for its good-faith refusal to turn over documents it believed to be privileged.
We affirm the discovery order and direct the trial court to vacate the contempt order.
Plaintiff, Kenya Rounds, sought to recover damages for the alleged medical malpractice of JPH and other defendants arising out of the delivery of her fetus, Deonte Warren, on May 28, 1996. Plaintiff alleged that: JPH was negligent in discharging Rounds from JPH after she presented the clinical signs and symptoms of placental abruption; JPH failed to inform the attending obstetrical physician of Rounds' signs and symptoms before she was discharged and transferred to St. Bernard Hospital; JPH failed to perform an emergency cesarean section on Rounds; JPH failed to utilize available obstetrical techniques which would have resulted in Deonte's delivery before his death; and JPH failed to appropriately respond to the clinical signs of vaginal bleeding, a firm uterus, and Deonte's fetal status. Rounds alleged that, as a result of JPH's negligence, Deonte suffered injuries that resulted in his death.
In its answer, JPH admitted that it provided nursing and medical treatment to Rounds and that Drs. Saric and Koganti provided treatment to Rounds on May 28, 1996. JPH denied that Rounds was assessed with vaginal bleeding, leaking amniotic fluid, and had a firm uterus. JPH further denied that either Saric or Koganti ordered and/or allowed Rounds to be discharged from JPH and transferred to St. Bernard. Finally, JPH denied all allegations of wrongdoing and negligence.
In its response to Rounds' request for production of documents, JPH claims that it produced more than 350 pages of documents. In response to Rounds' request for documents containing the "opinions, theories, conclusions, or estimates" regarding Rounds' physical condition and Deonte's birth, JPH responded that it had certain nursing incident reports and another document prepared by nurse Edith Nwankwo regarding the sequence of events of Rounds' transfer from JPH to St. Bernard's Hospital. JPH asserted that these documents were made in anticipation of litigation and were otherwise protected by section 8-2101 of the Code of Civil Procedure (the Medical Studies Act) (735 ILCS 5/8-2101) (West 1998)) and, therefore, withheld them from disclosure pursuant to the attorney-client privilege and the Medical Studies Act.
On January 9, 1998, JPH was granted leave to file its response to Rounds' first supplemental request for production. JPH claims that it provided to Rounds more than 290 additional pages of documents, excluding the nurses' incident reports and Nwankwo's statement. In December of 1999, nurse Frye was deposed. During Frye's deposition, the following was elicited by plaintiff's counsel:
"Q: Did you fill out an incident report?
A: Because I was instructed to.
Q: Who instructed you to?
Q: When did she instruct you to fill out an ...