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Brown v. Advocate Health and Hospitals Corp.

Court of Appeals of Illinois, First District, Fifth Division

September 15, 2017

ANTHONY BROWN, Individually and as Independent Representative of the Estate of Joyce R. Hobson, Deceased, Plaintiff-Appellee,
v.
ADVOCATE HEALTH AND HOSPITALS CORPORATION, d/b/a Advocate South Suburban Hospital and Advocate Medical Group; OLALEKAN SOWADE, M.D.; ERIK SWENSON, M.D.; JAMES O'DONNELL, M.D.; AGOP TEPELI, M.D.; GUPTA, M.D., S.C.; and SURGICAL SPECIALISTS, S.C., Defendants (Advocate Health and Hospitals Corporation, d/b/a Advocate South Suburban Hospital, Defendant-Appellant).

          Rule 23 order filed July 28, 2017

          Motion to publish allowed August 28, 2017

         Appeal from the Circuit Court of Cook County, No. 13-L-4430; the Hon. Kathy M. Flanagan, Judge, presiding. Review

          Garrett L. Boehm, Jr., and Tammy L. Wade, of Johnson & Bell, Ltd., of Chicago, for appellant.

          Vivian Tarver-Varnado, of AMB Law Group, LLC, of Chicago, for appellee.

          PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.Justice Lampkin concurred in the judgment and the opinion. Justice Gordon dissented, with opinion.

          OPINION

          REYES JUSTICE

         ¶ 1 Advocate Health and Hospitals Corporation, d/b/a Advocate South Suburban Hospital (Advocate), a defendant in a medical malpractice action, violated an order of the circuit court of Cook County by refusing to produce certain insurance-related documents for in camera inspection. The circuit court held Advocate in "friendly contempt" and imposed a $100 fine, which allowed Advocate to file this interlocutory appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016). As discussed herein, we (i) affirm the judgment of the circuit court directing Advocate to produce certain documents for in camera inspection and (ii) vacate the order finding Advocate in contempt and imposing a monetary penalty.

         ¶ 2 BACKGROUND

         ¶ 3 Joyce R. Hobson, after being hospitalized and undergoing multiple medical procedures at Advocate, experienced cardiopulmonary arrest and died on May 23, 2011. Anthony Brown, as the administrator of her estate, filed a medical malpractice action against Advocate and other defendants in 2013.

         ¶ 4 The plaintiff issued discovery requests seeking copies of Advocate's insurance policies. Advocate responded that there is no policy to produce because it is a self-insured entity. Pursuant to multiple court orders, Advocate was directed to produce its insurance policies. The circuit court also entered a protective order, which provided that any insurance documents produced by Advocate would remain strictly confidential and solely be used for purposes of this litigation.

         ¶ 5 The plaintiff filed a motion to compel, seeking compliance with the previous court orders and for sanctions pursuant to Illinois Supreme Court Rule 219 (eff. July 1, 2002). According to the plaintiff, Advocate had produced a "few pages of a document that was 99% blank."[1] In a court order entered on June 7, 2016, Advocate was directed "to tender its full trust agreement related to the substance of the [motion to compel] and an unredacted copy of the endorsement previously tendered for in camera inspection on or before June 14, 2016."

         ¶ 6 During a hearing on June 14, 2016, Advocate represented that it had previously disclosed $12.5 million in coverage for the plaintiff's claim pursuant to a self-insured retention and trust. Advocate continued to refuse to produce the trust agreement or related documents and asked to be held in "friendly contempt." At the conclusion of the hearing, the circuit court directed the following statements to Advocate's counsel:

"[J]ust so I can have it clear, you now are stating in open court that you are asking me to enter a friendly contempt citation against [Advocate] for purposes of appealing my order requiring [Advocate] to produce to me, for in camera inspection, a copy of the self-insured trust agreement plus any endorsements showing who is covered, under what circumstances people are covered, if employees are covered, all the normal and customary ...

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