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Nielson v. SwedishAmerican Hospital

Court of Appeals of Illinois, Second District

June 23, 2017

CONNIE F. NIELSON and DAVID A. NIELSON, Plaintiffs-Appellees,
SWEDISHAMERICAN HOSPITAL and AMANDA J. BUSH, Defendants SwedishAmerican Hospital, Defendant-Appellant.

         Appeal from the Circuit Court of Winnebago County. No. 15-L-30 Honorable Eugene G. Doherty, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Burke and Schostok concurred in the judgment and opinion.



         ¶ 1 In this interlocutory appeal, defendant, SwedishAmerican Hospital, challenges the trial court's order finding it in contempt for refusing to produce three quality control reports (QCRs) pertaining to surgery performed on plaintiff Connie F. Nielson. See Ill. S.Ct. R. 304(b)(5) (eff. Mar. 8, 2016) (order finding entity in contempt and imposing monetary penalty is appealable without special finding). Defendant argues that the QCRs are privileged under sections 8-2101 and 8-2102 of the Code of Civil Procedure (735 ILCS 5/8-2101, 8-2102 (West 2014)) (the Medical Studies Act or the Act), because they were submitted to a quality-assurance committee by the committee's designees, pursuant to the committee's standing request for such information whenever a defined "medical occurrence" has taken place. We affirm in part and vacate in part. ¶ 2 I. BACKGROUND

         ¶ 3 A. Surgeries

         ¶ 4 On December 17, 2013, Connie underwent scheduled outpatient surgery at defendant's hospital in Belvidere to remove a vaginal cyst. During the surgery, which was performed by codefendant, Dr. Amanda J. Bush, a board-certified gynecologist and employee of defendant, Connie's bladder was injured. Connie was transported on an emergency basis to defendant's hospital in Rockford for surgical repair of her bladder.

         ¶ 5 B. QCRs

         ¶ 6 Three nurses involved in either Connie's original or second surgery each prepared a QCR between December 17 and 20, 2013.

         ¶ 7 Beverly Merfeld, defendant's director of risk management, averred as follows. She is a member of the committee for quality improvement and safety (CQI), the board quality and safety leadership committee, and the medical-staff quality and safety committee (QA/I). Merfeld reports directly to the chief medical officer and vice president of quality services, who is also a member of the QA/I.

         ¶ 8 According to Merfeld, defendant's medical-staff bylaws establish various quality-assurance committees and subcommittees to conduct peer-review and quality-improvement activities. The CQI and QA/I and their subcommittees were established to reduce morbidity and mortality and to improve patient care. The activities of the quality-assurance committees and their subcommittees, as well as those of their designees, are treated confidentially.

         ¶ 9 The QA/I has requested that information on "medical occurrences" be collected on its behalf in the form of QCRs. The QA/I developed the QCR template in 1999 in an effort to comply with the Act, and it identified the occurrences for which it was proactively seeking information. QCRs are gathered at the direction and (standing) request of the QA/I and are forwarded to Merfeld in her capacity as a member of the CQI and QA/I.

         ¶ 10 Merfeld received the three QCRs concerning Connie's surgeries, and she reviewed them pursuant to defendant's "quality structure" via the quality-resource department (QRD), a designee of the QA/I that collects data for analysis by the QA/I's subcommittees. On January 24, 2014, the women's health quality and safety subcommittee of the QA/I (WHQS) reviewed the care at issue and reported its findings to the QA/I and the CQI. Merfeld averred that, as a result of the peer-review process concerning Connie's treatment, there were no actions taken regarding any physician privileges and no changes in defendant's policy, procedure, rules, or regulations.

         ¶ 11 In their affidavits, the nurses averred that they completed the QCRs at the request of the QA/I and forwarded the documents to Merfeld "in the Risk Management Department." They understood that the information would be kept confidential and was of the type that the QA/I was requesting for peer-review and quality-improvement purposes.

         ¶ 12 The QCR form provides as follows: "The QA/I Committee of the Medical Staff has determined that the 'Medical Occurrence' can affect patient morbidity and mortality; hence, the Committee requests that information be gathered for it and on its behalf in these instances. Such information is a quality-improvement tool and is confidential under the Illinois Medical Studies Act." As to nonmedical occurrences, the form provides that "[t]hese categories pertain to non-medical matters." The form contains checklists under the headings of medical and nonmedical occurrences. The list of medical occurrences includes the following: admission R/T output rx; behavioral, blood transfusion; code during treatment; complaint; discharge planning; equipment use related; fall/found on floor; infection; injury; lab test; medical record; medication; policy/procedure/practice; quality of services; and other. Nonmedical occurrences include: property loss/damage, slip and fall/nonpatient, legal action, vehicular accident, and injury/nonpatient. The person completing the form is instructed to consult the reverse side of the form, which contains definitions of the various terms. The term "legal action" is defined for both medical and nonmedical occurrences, even though it appears on only the list of nonmedical occurrences on the front of the form. "Legal action" is defined for medical occurrences as: "Any activities involving formal legal activities; such as subpoena for records or staff, lawsuits filed against the health system, employees, or medical staff which pertain to medical care issues." The term is defined in a substantially similar fashion for nonmedical occurrences: "Any activities involving formal legal activities by non-patients; such as subpoena for staff or employees, lawsuits filed against the Health System, its employees, medical staff, or the Hospital."

         ¶ 13 The form contains an area to describe the circumstance at issue, and it instructs the person completing the form to "Send to Risk Manager* or Administrator of SIR (Non-Medical), " with the risk manager described as being a member of the CQI and the QA/I.

         ¶ 14 C. Medical-Staff Quality-Improvement Plan and Medical-Staff Bylaws

         ¶ 15 Defendant's medical-staff quality-improvement plan for fiscal year 2013 provides that the medical staff and the board of directors direct the QRD to gather the information "that is used to evaluate patient morbidity and mortality." "Medical Staff Quality and Safety Subcommittees are responsible for the timely assessment of the data and evaluation and disposition of cases identified for peer review."

         ¶ 16 Defendant's medical-staff bylaws, dated November 2013, provide for various committees, including the QA/I. Section 12.6.b states, in relevant part:

"The membership of this Committee shall include the Chair of each clinical Department's Quality and Safety Subcommittee or their designees; a Chair to be selected by the President of the Medical Staff; and such other members as may be provided for in the Hospital's Quality and Safety Plan for Improving Organizational Performance.
The members shall monitor and evaluate objectively and systematically the quality, safety, and appropriateness of patient care provided by members of the Medical Staff. They *** shall receive and evaluate reports from individual quality and safety subcommittees and provide a forum for interdepartmental discussions. ***
Quality and Safety Committee meetings shall be scheduled at least bi-monthly; written records of its proceedings and activities shall be recorded and maintained by members of the Quality Resource Department; reported to the Medical Executive Committee on a routine basis, and reported to the Credentials Committee as necessary."

         ¶ 17 D. Policy-and-Procedure Manual

         ¶ 18 Defendant's policy-and-procedure manual contains a section concerning incident reporting. The document states that QCRs "will be used to communicate occurrences or variances affecting patients, physicians, visitors, volunteers, students, employee property, and [defendant's] property" and that the "information will be used to monitor, evaluate, and improve the quality and safety of services" that defendant provides. A QCR must be completed for each occurrence, variance, serious event, near miss, or sentinel event. The policy provides that any "employee, student, volunteer, visitor, or physician involved in, observing, or discovering an occurrence, " etc., must complete a QCR and submit it to his or her supervisor (if applicable) prior to the end of his or her shift.

         ¶ 19 The manual further provides that a "reportable occurrence or variance is any event which is not consistent with quality health care or normal operations, reflects recurring concerns or problems, or indicates the potential for a claim or lawsuit." (Emphasis added.) Where it is determined that an unanticipated outcome was preventable, the patient will not be billed for the costs associated with treatment related to the event, and the chief medical officer, the chief quality officer, and/or the chief financial officer will determine whether a bill write-off or payment is necessary. The manual further states that responsibility for certain costs "can only be determined after investigation of the occurrence by Risk Management or their designee." The manual also states that completed QCRs "should be sent to Risk Management as soon as possible to facilitate follow-up, investigation, resolution, and data collection." In the case of a sentinel event, for example, the chief medical officer or the chief quality officer "or his designee will determine if a *** team should be convened to conduct an investigation." The manual advises that QCRs are not to be made part of a patient's medical records or an employee's personnel file and that the responsibility for medical costs or lost or damaged items will be determined only after the risk-management department or its designee investigates the occurrence.

         ¶ 20 The manual further states that QCR forms are "a significant component of" defendant's quality-improvement program and that disclosure of the information in the forms, other than for quality review, is prohibited under the Act. However, the manual also states that the risk-management department "reviews all QCRs and conducts investigation of occurrences or variances which require more complete documentation, follow-up from a risk management perspective, or reporting under the Safe Medical Devices Act." Also, it provides that a "QCR may serve as a report to legal counsel to assist in the defense of a lawsuit or claim."

         ¶ 21 E. Lawsuit and Trial Court Order

         ¶ 22 On January 29, 2015, Connie and plaintiff David A. Nielson sued defendant and codefendant, alleging negligence and seeking to recover damages for Connie's bladder injury. Plaintiffs subsequently sought to compel defendant to produce the three QCRs. Defendant refused, arguing that the documents were protected from discovery by the Medical Studies Act. Defendant submitted the QCRs to the court for in camera review.

         ¶ 23 On May 31, 2016, the trial court granted plaintiffs' motion to compel. It initially noted that, pursuant to the statutory language, the QCRs appeared to constitute information of one of defendant's quality-assurance committees. However, it continued, ...

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