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Grosshuesch v. Edward Hospital

Court of Appeals of Illinois, Second District

September 5, 2017

ABIGAIL KIERSTEN GROSSHUESCH, Independent Administrator of the Estate of Isabella Kitsen Zormelo, Deceased, Plaintiff-Appellee,

         Appeal from the Circuit Court of Du Page County. No. 15-L-464 Honorable Ronald D. Sutter, Judge, Presiding.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Birkett concurred in the judgment and opinion.



         ¶ 1 The defendant Edward Hospital claims that certain of its documents are confidential and that the circuit court of Du Page County should not have ordered it to produce them during discovery in a civil case. Edward Hospital insists that the Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2014)) protects those documents from disclosure. We agree with the trial court that all the documents at issue should be produced.

         ¶ 2 BACKGROUND

         ¶ 3 On October 13, 2013, the plaintiff, Abigail Kiersten Grosshuesch, was admitted to Edward Hospital. She was 30 weeks' pregnant and the baby, Isabella Kitsen Zormelo, was born that day. Isabella suffered from numerous medical issues, including necrotizing entercolitis. Isabella died on November 1, 2013.

         ¶ 4 In December 2013, the plaintiff contacted Edward Hospital's patient advocate and expressed concern about the care and treatment rendered to her and Isabella. Pursuant to Edward Hospital's medical staff quality committee (MSQC) charter and its peer-review policy (both enacted in 2008), the plaintiff's concern in conjunction with Isabella's death constituted "review indicators" resulting in a referral to the MSQC. Nancy Rosenbery, in her capacity as the MSQC liaison, consulted two expert peer reviewers-each a member of the hospital's medical staff with the same specialty as the physician whose care was being reviewed. One peer reviewer reviewed and commented on the obstetrical care given to the plaintiff, and one peer reviewer commented on the neonatal care given to Isabella. Rosenbery then entered her notes on each peer reviewer's input, including the reviewer's conclusion and/or requests for additional information, into an electronic database on February 24 and 25, 2014. The MSQC considered these notes when it met on March 5 and April 2, 2014.

         ¶ 5 On October 31, 2014, the plaintiff filed a complaint against Edward Hospital and other defendants. As pertinent to this appeal, on October 21, 2015, the plaintiff filed a second amended complaint, which included two counts. Count I was a wrongful-death action, seeking to recover for Isabella's death. Count II was a survival action, seeking to recover for injuries sustained by Isabella between the date of her birth and the date of her death. The plaintiff subsequently issued a written discovery request to Edward Hospital, seeking all documentation regarding the care of Isabella. Edward Hospital refused to disclose the notes Rosenbery authored on February 24 and 25, 2014, asserting that they were privileged pursuant to the Medical Studies Act.

         ¶ 6 On March 3, 2016, the plaintiff filed a motion to compel an in camera inspection of the allegedly privileged documents.

         ¶ 7 On August 3, 2016, the trial court conducted a hearing on the plaintiff's motion. In support of its claim of privilege, Edward Hospital submitted the affidavit of Christine Koman, the system claims counsel for Edward-Elmhurst Health. She stated that the MSQC, in conjunction with Edward Hospital's medical executive committee of the medical staff, promulgated the peer-review policy. The purpose of that policy was to improve the overall quality of care rendered and to reduce morbidity and mortality. She further stated that, after the plaintiff expressed her concerns about the care that she and Isabella had received, the matter was referred to the MSQC for peer review pursuant to the peer-review policy. Koman concluded that the information and conclusions resulting from the peer-review investigation-which were later provided to the MSQC for its consideration and evaluation, consistent with the peer review policy-were part of the internal quality-control process and therefore privileged.

         ¶ 8 At the close of the hearing, the trial court ruled that the notes Rosenbery had authored on February 24 and 25, 2014, which contained information acquired before the MSQC met, must be produced because Koman's affidavit was insufficient to raise a privilege. The trial court explained that there was nothing in Koman's affidavit showing when the MSQC requested the investigation to begin or which member of the MSQC requested the investigation to begin. The trial court further found that Koman's affidavit did not establish that the MSQC was engaged in the peer-review process for this occurrence prior to the March 2014 meeting.

         ¶ 9 On August 19, 2016, Edward Hospital filed a motion to reconsider and supported it with a second affidavit from Komen. In that affidavit, Koman stated that the MSQC had instructed Rosenbery, in her capacity as the MSQC liaison, to assist it by coordinating the investigation into the plaintiff's concerns for the purpose of quality control and improvement and the reduction of morbidity and mortality. As part of her investigation, Rosenbery worked with consultants who reviewed the care that the plaintiff and Isabella had received. On February 24 and 25, 2014, Rosenbery authored notes based on her investigation. Komen further asserted that Rosenbery's notes "served an integral function in the peer review gathering and decision making process and serve as documentation vital to the process of improving the quality and care rendered at Edward Hospital."

         ¶ 10 On October 12, 2016, following a hearing, the trial court denied Edward Hospital's motion to reconsider.

         ¶ 11 On October 26, 2016, after Edward Hospital continued to refuse to disclose Rosenbery's notes, the trial court found Edward Hospital in contempt and imposed a fine of $1 per day until Edward Hospital complied with ...

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