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Webb v. Mount Sinai Hospital and Medical Center of Chicago

March 29, 2004

[5] YOLANDA WEBB, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ASHLEY WEBB, A MINOR, DECEASED, PLAINTIFF-APPELLEE,
v.
MOUNT SINAI HOSPITAL AND MEDICAL CENTER OF CHICAGO, INC., AND KEITH WILLIAMS, DEFENDANTS-APPELLANTS.



[6] Appeal from the Circuit Court of Cook County 00 L 8586 Honorable Randye A. Kogan, Judge Presiding

[7] The opinion of the court was delivered by: Justice McBRIDE

[8]  In this case we consider the propriety of the trial court's determination that documents withheld from discovery by defendants were not privileged under that part of the Code of Civil Procedure commonly known as the Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2000))(the Act). In response to plaintiff's discovery requests, defendants claimed that certain documents were privileged because they were part of an internal peer-review conducted by the Risk Management Committee at Mount Sinai Hospital and Medical Center of Chicago, Inc. (Mt. Sinai). After an in camera review of the documents and consideration of the affidavits, briefs, and arguments offered by the parties, the trial court found that the documents were not privileged and ordered that defendants produce them. Defendants asked the trial court to reconsider its decision. The trial court denied that motion and found defendants in contempt of court for their failure to produce the documents. The trial court additionally fined defendants $50. Payment of the fine was stayed pending disposition of appeal.

[9]  On July 28, 2000, plaintiff filed a complaint against defendants, two additional doctors, and another medical facility, seeking damages under the Illinois Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2000)) and the Illinois Survival Act (755 ILCS 5/27-6 (West 2000)). The complaint alleged that Ashley Webb was admitted to Mt. Sinai on July 28, 1998, "as an in-patient to rule out hepatitis and treatment for dehydration." Williams was one of her treating physicians. Ashley Webb died at Mt. Sinai on July 29, 1998. The complaint alleged her death was due to defendants' negligence. The case was removed to the federal district court, where the claims against all defendants except Mt. Sinai and Williams were dismissed. Finding that it lacked jurisdiction over the claims, the district court remanded the case to the circuit court.

[10]   During discovery, plaintiff served interrogatories and requests to produce on defendants. In response to several inquiries, defendants explained that they possessed certain documents responsive to the requests but that those documents were privileged under the Act. The documents at issue in this appeal are a "Patient Safety Digest Professional Peer Review Occurrence Summary" (Occurrence Summary) authored by Lori Notowitz, R.N., M.J., the former director of risk management at Mt. Sinai, and four memoranda "from" Notowitz "to" the Risk Management Committee (collectively the memoranda). The memoranda summarized her interviews with four doctors, including Williams. Two of the memoranda were dated August 4, 1998. The other two were dated July 29, 1998.

[11]   Upon receiving defendants' objections, plaintiff filed a "Motion for Ruling on Defendants' Medical Studies and Work Product Objections," requesting in camera review of the documents. Rather than immediately offering the documents for in camera review, defendants offered the affidavit of Notowitz. According to the affidavit, in July and August 1998, Notowitz was the director of risk management for Mt. Sinai. Part of her duties was "to improve patient care and safety" at Mt. Sinai "through risk management techniques, which included, among other things, [her] participation in peer review committees." She was also responsible "for loss prevention and managing claims" and was "in the decision-making chain in settling claims against" Mt. Sinai. She was also a member of the Risk Management Committee, which "was a peer review committee composed largely of physicians, including the President of the Medical Staff." The purpose of the committee "was to review patient care incidents and related systems issues in an effort to improve patient safety, the quality of patient care, and to reduce morbidity and mortality." Notowitz prepared the documents at issue in this case and interviewed the various doctors mentioned in those documents "at the specific direction of the Risk Management Committee *** only after that Committee had received a report of Ashley Webb's death less than 24 hours after her admission to the Hospital and after that Committee had undertaken a formal review of that occurrence." The documents were "utilized solely for the purposes of the investigation of the Risk Management Committee ***. They were presented solely to the Risk Management Committee ***. They were utilized solely for peer review, patient safety, and quality improvement purposes." They were kept separate from any litigation files and were not shared with Mt. Sinai's attorneys.

[12]   In reply, plaintiff claimed that defendants' affidavit was insufficient to show that the privilege applied. Specifically, plaintiff complained that the evidence failed to show "when the 'peer review' or 'quality improvement committee' first met to begin investigating Ashley Webb's death." The trial court ordered defendants to file supplemental affidavits and provide the documents for in camera review.

[13]   Notowitz's second affidavit added that "[p]atient care incidents requiring review by the Risk [M]anagement Committee were brought to the attention of the Committee by a variety of sources, including individual Committee members and department peer review committees" and that "where an event occurred between scheduled meetings of the Risk Management Committee, the Chairman of that committee had the authority to initiate an investigation and review of the occurrence" on behalf of the committee. On July 29, 1998, after being notified of Ashley Webb's death, the Chairman of the Risk Management Committee instructed Notowitz "to initiate an investigation and review of the occurrence" on behalf of the committee. The memoranda documenting Notowitz's interviews with doctors Perkins, Chaparro, Williams, and Ojo were prepared to "utilize in the preparation" of the Occurrence Summary. "The memoranda themselves were not distributed to members of the Risk Management Committee. In fact, they were shared with nobody." Notowitz maintained minutes of all of the meetings of the Risk Management Committee, but she was unaware of what became of those minutes after she left Mt. Sinai and "relinquished control of them to [her] successor." She did not recall the date of the meeting of the Risk Management Committee in which she discussed her findings and recommendations in relation to Ashley Webb. She remembered, however, that a meeting had occurred.

[14]   After reviewing the affidavits and the documents, the trial court concluded that the documents were not privileged under the Act. The court explained:

[15]   "Inspection of the actual documents undoubtedly reveals that their purpose encompassed 'an effort to improve patient safety, the quality of patient care, and to reduce morbidity and mortality.' However, this inspection also reveals that the processes of peer-review and quality improvement were not the sole purpose of their generation. Each of the documents authored by Notowitz clearly anticipates litigation. The Peer Review Occurrence Summary advises the Risk Management Committee that 'the risk of litigation is high.' Each memo pertaining to an interview begins, 'You have asked me to review the care of Ashley Webb to identify any issues of liability or potential patient safety.' Regardless as to whether these documents were ever used in a peer-review process, such statements indicate that they were, at least in part, created to render legal opinions or weigh potential liability risk. Thus, since they were not generated specifically for peer-review, these documents are not protected by the privilege allowed by the Illinois Medical Studies Act." (Emphasis added.)

[16]   Defendants filed a motion for reconsideration of the trial court's order. Alternatively, defendants sought an amended order limiting production to redacted documents or a contempt order that would allow defendants to appeal the trial court's order.

[17]   After plaintiff filed her response to defendants' motion for reconsideration, the trial court granted defendants' request for additional time to file a supplemental affidavit. Specifically, the trial court instructed defendants that in order to reconsider its findings, the trial court sought information regarding Notowitz's use of the phrases "liability" and "litigation" in the documents and proof that "the peer review took place."

[18]   In her third affidavit, Notowitz corrected a previous erroneous statement that the president of the medical staff was chairman of the Risk Management Committee and indicated that the chairman was the vice president of medical affairs at Mt. Sinai. Notowitz explained that the only functions of the Risk Management Committee were "peer review and patient safety." The committee "did not review or evaluate liability issues or exposure to possible future litigation" in this or any other case "because other Hospital committees were charged specifically with addressing those issues." The committee had authorized its chairman to act on its behalf and "initiate investigation and review of an occurrence" when such an occurrence happened between regularly scheduled committee meetings. On "7/28/98," Notowitz informed the chairman of Ashley Webb's death, and the chairman instructed her "to initiate an investigation and review of the occurrence" on behalf of the committee. The full committee did not meet before Notowitz began her investigation.

[19]   With regard to the references in the memoranda to issues of liability, Notowitz explained:

[20]   "Insofar as [the memoranda] contain introductory language suggesting that I was to review the care of Ashley Webb to identify 'any issues of liability,' that language was included at the specific instruction of Hospital counsel as being necessary to preserve the materials as privileged. Notwithstanding that language, however, I did not conduct these interviews or prepare these memoranda or Exhibit A for the purpose of evaluating potential liability risk or weighing exposure in possible future litigation. Nor did the Risk Management ...


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