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Ardisana v. Northwest Community Hospital

August 11, 2003


Appeal from the Circuit Court of Cook County No. 01 L 986 Honorable Kathy M. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Smith


Defendant Northwest Community Hospital (Northwest) appeals from a circuit court order holding it in contempt for refusing to produce certain documents requested in discovery by plaintiff Richard Ardisana. Northwest contends that the documents in question are protected from discovery under section 8-2101 of the Code of Civil Procedure (735 ILCS 5/8-2101 (West 1998)) (the Medical Studies Act or the Act).

Factual Background

The underlying action in this case arises out of medical care provided to plaintiff at Northwest from November 11, 1999, through January 10, 2000. In his second amended complaint, plaintiff alleges in pertinent part that he underwent a surgical procedure at Northwest on November 11, 1999, to remove a growth from his colon. In the days following that surgery, plaintiff developed gastric reflux, vomiting and abdominal bleeding. The vomiting caused wound evisceration, necessitating repair surgery done under general anesthesia on November 16, 1999. Plaintiff aspirated vomit during the latter surgery and subsequently developed aspiration pneumonia.

Plaintiff's complaint further alleges that employees, agents and/or apparent agents of Northwest, including the surgeon (Dr. Robert Aki) and the anesthesiologist for the second surgery (Dr. Subhash Balaney), were negligent in various respects that caused the wound evisceration and the aspiration pneumonia, which in turn led to severe and permanent damage to his lungs.

In the course of discovery, plaintiff filed a supplemental request to produce, asking in part that Northwest produce the following documents:

"Any and all writings, memos or documents pertaining to any conclusions or final recommendations for any peer review process, including the Department of Surgery, pertaining to Richard Ardisana. If any materials are claimed to be privileged, please provide a privilege log identifying the document and its date."

Northwest objected on the ground that the documents it had were privileged pursuant to the Medical Studies Act. The trial court directed Northwest to provide for its in camera review a privilege log stating the basis for each claim of privilege, a copy of the documents listed in the log, and a copy of the complaint. Northwest filed the requested documents, as well as the affidavit of its risk manager, Karla Ford, in which it was averred that the documents provided for in camera inspection "were generated in conjunction with investigations by the General Surgery Quality Audit and Anesthesia Quality Improvement Audit Committees. These documents were prepared solely for those two committees and by these committees. The documents referenced in the privilege log under Roman numerals I and II were used exclusively by those committees and were shared with no one outside of those committees. The sole exception is the letter sent to Dr. Balaney, which was sent to him but arose exclusively from the committee's investigation and requested information for the exclusive use of the committee."

The attached privilege log identified two pertinent groups of documents :

1. A quality management worksheet prepared for the surgical quality audit committee, dated February 23, 2000, and minutes of audit committee meetings held on February 23 and April 19, 2000, at which plaintiff's care was discussed.

2. A quality management worksheet prepared for the anesthesia department quality audit committee dated May 10, 2000; minutes of an audit committee meeting held May 10, 2000, and a letter from the chairman of the audit committee to Dr. Subhash Balaney dated June 5, 2000, requesting certain additional information about plaintiff's care.

Plaintiff did not file a written response to Northwest's objections. The trial court issued a written memorandum decision on June 11, 2002, in which it ruled that all of the material claimed by Northwest to be privileged was discoverable. Specifically, the court held that only material that was generated during the temporal parameters of the peer-review process was privileged and that Northwest had failed to establish when the process in this case commenced and ended. Additionally, the court found that the internal conclusions and recommendations of the committees constituted "results," which are not privileged under the Act.

On June 24, 2002, Northwest filed a motion to reconsider. *fn1 To that motion were attached two additional affidavits. The first was that of Cynthia Dougherty, R.N., who was director of Northwest's quality measurement and improvement (QMI) department when the medical care at issue was provided. Ms. Dougherty averred that the quality review in this case commenced shortly after plaintiff's discharge and was triggered by the fact that it met established screening criteria set by the departments of surgery and anesthesia. She outlined ...

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