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Berry v. West Suburban Hospital Medical Center

March 24, 2003


Appeal from the Circuit Court of Cook County No. 99 L 13977 Honorable Michael J. Hogan, Judge Presiding.

The opinion of the court was delivered by: Justice Smith

Defendant-appellant West Suburban Hospital Medical Center (the Hospital) contends that a certain document plaintiffs requested in discovery is protected by sections 8-2101 through 8-2105 of the Code of Civil Procedure (735 ILCS 5/8-2101 et seq. (West 1998)) (hereinafter the Medical Studies Act or the Act). The Hospital contends that (1) the trial court should not have ordered it to produce that document and (2) this court should vacate the trial court's order finding the Hospital in contempt for refusing to produce that document. We affirm the trial court's finding that the document should be produced but vacate the trial court's finding of contempt.


Plaintiffs Martissa Berry and Jalen Charles filed a medical negligence complaint against defendants West Suburban Hospital Medical Center, Amy LaHood, M.D., Karla Clark, M.D., and Bertha Lopez, M.D., arising from the obstetrical care defendants provided to plaintiffs during labor and delivery. Plaintiffs alleged that on September 13, 1999, Berry was experiencing contractions and was admitted to the Hospital but then discharged with instructions to return when her contractions became more frequent. After Berry was readmitted to the Hospital on September 14, 1999, an emergency caesarean section was performed, and Charles was born with disabilities.

Plaintiffs alleged that Charles's disabilities resulted from defendants' negligence. Specifically, plaintiffs alleged that defendants negligently (1) discharged Berry on September 13, 1999, despite purported evidence of fetal distress; (2) failed to timely administer intrapartum antibiotics to Charles; (3) failed to monitor the progress of Berry's labor or Charles's well-being; and (4) failed to timely perform the emergency caesarean section.

During the course of discovery, plaintiffs requested documents from the Hospital. The Hospital disclosed the existence of four documents within the scope of plaintiffs' discovery request. One of the four was a letter from Dr. Lopez to Vasant Acharya, M.D., chairperson of the Hospital's department of obstetrics and gynecology, dated September 16, 1999 (September 16 letter). *fn1 The Hospital, however, declined to provide the documents, contending that the documents were protected from disclosure under the Act. Plaintiffs filed a motion to compel the documents and requested that the documents be made available for an in camera inspection by the trial court. Defendants filed in opposition a response that included the affidavits of Dr. Lopez and Dr. Acharya. Furthermore, defendants agreed to provide the documents to the trial court under separate, sealed cover for in camera inspection.

The September 16 letter at issue on appeal began: "Dr. Acharya: This note is to inform you of the events that occurred on the morning of September 14, 1999." Dr. Lopez then made factual statements relating to Berry's medical condition and the sequence of events surrounding her treatment while at the hospital. The September 16 letter was not addressed to and did not refer to any hospital investigatory committee.

In her affidavit dated October 5, 2001, Dr. Lopez stated that her purpose in writing the September 16 letter to Dr. Acharya was to "bring potential issues to his attention concerning quality improvement at the hospital for the purpose of reducing morbidity and mortality." According to Dr. Lopez, she understood that the issues raised in her letter would then be addressed by the Hospital's quality assurance committee. Dr. Lopez also understood that her letter to Dr. Acharya "would be privileged since it addressed internal quality assurance issues at the hospital."

In his affidavit dated October 29, 2001, Dr. Acharya stated that it was his duty to oversee quality assurance and improvement issues within the obstetrics and gynecology department and to oversee the department's quality management program. The program's purpose was to identify areas of care that needed improvement and to reduce morbidity and mortality within the department. As part of the program, the department reviewed various patient cases. According to Dr. Acharya, to facilitate the quality assurance process, department physicians and nurses were responsible for informing Dr Acharya, either verbally or in writing, of patient cases with potential quality assurance issues. Dr. Acharya stated that the "initial communication from the physician and/or nurse begins the quality assurance process," whereupon the "patient's chart is reviewed and the case is discussed at a monthly morbidity and mortality (M&M) review meeting" of the department. Dr. Acharya stated that the September 16 letter notified him of potential quality assurance issues in the care of Berry and began the quality assurance review of Berry's case.

The record does not include a transcript of the hearing on plaintiffs' motion to compel and does not indicate whether the trial court conducted an in camera inspection of the disputed discovery documents. On November 21, 2001, the trial court ordered the Hospital to produce the September 16 letter but denied plaintiffs' motion to compel production of the other three documents. After the Hospital refused to produce the September 16 letter, the trial court held the Hospital in contempt and fined it $10. This appeal followed. ANALYSIS

The Hospital contends on appeal that the September 16 letter is privileged under the Act because it triggered the internal quality control proceedings regarding Berry's case. The Hospital argues that the letter is privileged as a report or statement used in the course of internal quality control. We disagree. The Medical Studies Act Privilege

The Act provides:

"All information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner's professional competence, or other data of * * * committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, or their designees (but not the medical records pertaining to the patient), 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 or increasing organ and tissue donation, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges or agreements for services * * *." 735 ILCS 5/8-2101 (West 1998).

The Act further provides that such privileged material "shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, ...

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