United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY T. GILBERT, Magistrate Judge.
This matter is before the Court on Plaintiff Magdalena Cornejo's ("Plaintiff's") revised Motion to Compel [DE#63] production of documents being withheld from production by Defendant Mercy Hospital and Medical Center ("Defendant") in response to Plaintiff's discovery requests. Defendant asserts the documents are privileged under the Illinois Medical Studies Act, 735 ILCS 5/8-2101 ("Act"), which the Supreme Court of Illinois has said is intended "to ensure that members of the medical profession will effectively engage in self-evaluation of their peers in the interest of advancing the quality of health care." Roach v. Springfield Clinic, 157 Ill.2d 29, 40, 623 N.E.2d 246, 251 (1993). For the reasons discussed below, the Court holds that although some of the documents being withheld by Defendant are privileged, Defendant has not met its burden of showing that the majority of documents it is withholding are protected by the Act. Accordingly, Plaintiff's Motion to Compel is granted in part and denied in part.
Plaintiff alleges, among other things, that Defendant was negligent in caring for Plaintiff and her unborn child while Plaintiff was hospitalized at Mercy Hospital and Medical Center and, as particularly germane to the documents that are the subject of the instant dispute, Defendant failed to provide competent, capable, qualified physicians and nurses, and to supervise them properly. Complaint [DE#63-1] at ¶¶ 26-27. Plaintiff requested documents from Defendant relevant to these allegations and Defendant objected to producing a large number of the documents requested citing the Act.
Plaintiff first filed a Motion to Compel production of documents Defendant was withholding on September 17, 2013 [DE#37]. Judge Feinerman granted in part and entered and continued in part that earlier motion on September 23, 2013 [DE#39]. He ordered Defendant to produce or log documents being withheld by October 21, 2013, and to submit the withheld documents for in camera review. ( Id. ) That date was later extended to November 6, 2013 [DE#46]. The parties then tried to resolve the case themselves, but they were unsuccessful [DE#50].
Judge Feinerman referred Plaintiff's Motion to Compel [DE#37] to the Magistrate Judge then assigned to this case on March 19, 2014. ( Id. ) The case was reassigned to this Magistrate Judge on March 26, 2014 [DE#53]. This Court reviewed the documents being withheld and Defendant's privilege log and found the privilege log to be sorely lacking. At a preliminary hearing on April 30, 2014, the Court ordered Defendant to tender to Plaintiff "a new privilege log with a clearer and more specific description of the documents being withheld, the reason they are being withheld and the date each document was created" [DE#57]. The Court also ordered Defendant to submit to the Court for in camera review the revised privilege log and the documents still being withheld, and also to review more carefully the documents it was withholding to determine that they were being withheld in good faith under the Act. ( Id. )
Defendant subsequently produced to Plaintiff a number of additional documents and tendered a new privilege log, but continued to stand on its assertion of privilege with respect to other documents, prompting Plaintiff to renew her Motion to Compel on June 16, 2014 [DE#63]. Defendant filed a response on July 10, 2014 [DE#70] and Plaintiff filed a reply in support of her renewed Motion to Compel on July 21, 2014 [DE#71].
The Court finds Defendant's privilege log still is woefully deficient and Defendant has not met its burden of showing that most of the documents it is withholding are protected from disclosure by the Act. The Court has reviewed all the documents that Defendant is withholding in camera. Even without adequate help from Defendant, the Court can determine from the face of some documents that they are privileged. As for the bulk of the documents that Defendant is withholding, however, Defendant has failed to establish that they come within the protection of the Act and the Court cannot infer from the face of those documents nor from Defendant's conclusory, boilerplate and frequently inaccurate privilege log that they are so protected. Therefore, those documents must be produced to Plaintiff. The Court explains its reasoning below.
The purpose of the Act is "to advance the quality of health care by ensuring that members of the medical profession effectively engage in a peer-review process." Toth v. Jensen, 272 Ill.App.3d 382, 385. 649 N.E.2d 484, 486 (1st Dist. 1995). The Act is premised on the belief that, absent the privilege, "physicians would be reluctant to sit on peer-review committees and engage in frank evaluations of their colleagues." Roach, 157 Ill.2d at 40, 623 N.E.2d at 251 (1993); Richter v. Diamond, 108 Ill.2d 265, 269, 483 N.E.2d 1256, 1258 (1985). Accordingly, the "Act protects documents which arise from the workings of a peer-review committee and which are an integral part, but not the result, of the peer-review process." Toth, 272 Ill.App.3d at 385, 649 N.E.2d at 486 (citation omitted). The Act also "protects against disclosure of the mechanisms of the peer-review process, including information gathering and deliberations leading to the ultimate decision rendered by a peer-review committee." Anderson v. Rush-Copley Med. Ctr., Inc., 385 Ill.App.3d 167, 174, 894 N.E.2d 827, 834-35 (2d Dist. 2008) (citing Pietro v. Marriott Senior Living Servs., Inc., 348 Ill.App.3d 541, 549, 810 N.E.2d 217, 224).
The Act does not protect all information used for internal quality control. Grandi v. Shah, 261 Ill.App.3d 551, 557, 633 N.E.2d 894, 899 (2d Dist. 1994). Rather, it protects documents "generated specifically for the use of a peer-review committee." Chicago Trust Co. v. Cook Cnty. Hosp., 298 Ill.App.3d 396, 402, 698 N.E.2d 641, 646 (4th Dist. 1998). See also Roach, 157 Ill.2d at 39, 623 N.E.2d at 250 ("What the law actually protects is not information of a hospital's medical staff, but information 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...'") (emphasis original). Documents created in the ordinary course of business, to weigh potential liability risk, or for later corrective action by hospital staff are not privileged, even if they are later used by a committee in a peer-review process. Chicago Trust Co., 298 Ill.App.3d at 406, 698 N.E.2d at 649. As the Illinois Supreme Court explained, "If the simple act of furnishing a committee with earlier-acquired information were sufficient to cloak that information with the statutory privilege, a hospital could effectively insulate from disclosure virtually all adverse facts known to its medical staff, with the exception of those matters actually contained in a patient's records." Roach, 157 Ill.2d at 41, 623 N.E.2d at 251.
Further, the Act "does not protect against disclosure of information generated before a peer-review process begins or after it ends." Ardisana v. Nw. Cmty. Hosp., Inc., 342 Ill.App.3d 741, 748, 795 N.E.2d 964, 971 (1993). The hospital committee must be engaged in the peer-review process before the privilege attaches. Grandi, 261 Ill.App.3d at 557, 633 N.E.2d at 899.
Whether the privilege created by the Act applies is a question of law, but whether particular materials are part of a medical study or internal peer review or quality control process is a factual question. Ardisana, 342 Ill.App.3d at 746, 795 N.E.2d 964 at 969. As the party seeking to invoke the privilege, Defendant bears the burden of establishing that the privilege applies as a matter of fact and law, and the burden of any failure to make a complete record necessary for the Court to make those determinations. Grandi, 261 Ill.App.3d at 557, 633 N.E.2d at 898. The party asserting the privilege may support its claim either by submitting the withheld documents for in camera inspection or by submitting affidavits setting forth facts sufficient to establish the applicability of the Act to the withheld documents. Ardisana, 342 Ill.App.3d at 748, 795 N.E.2d 964 at 971.
As discussed above, Defendant initially submitted to the Court in camera hundreds of documents it claimed were privileged under the Act. The documents were accompanied by a privilege log comprised of largely vague and uninformative descriptions of the withheld documents and boilerplate language parroting the Act. The privilege log offered no context for the documents being withheld and Defendant submitted no other information aside from the documents themselves to provide that context. Under these circumstances, the Court could have ordered Defendant to produce to Plaintiff nearly every document Defendant was withholding. The Court instead gave Defendant a second opportunity ...