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Daley v. Teruel

Court of Appeals of Illinois, First District, Fourth Division

June 28, 2018

TERRI DALEY, Independent Administrator of the Estate of Rosalie Galmore Jones, deceased, Plaintiff-Appellee,
v.
KEVIN TERUEL, RN; VICTORIA HALL, RN; and INGALLS MEMORIAL HOSPITAL, Defendants, Ingalls Memorial Hospital, Defendant-Contemnor-Appellant.

          Appeal from the Circuit Court of Cook County. No. 15 L 11684 Honorable Moira S. Johnson, Judge Presiding.

          PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.

          OPINION

          BURKE PRESIDING JUSTICE

         ¶ 1 Plaintiff Terri Daley, as independent administrator of the estate of Rosalie Galmore Jones, deceased, sued defendants Kevin Teruel, RN; Victoria Hall, RN; and Ingalls Memorial Hospital (Ingalls) (collectively, defendants) for medical malpractice. During discovery, in response to one of plaintiff's written interrogatories and a request to produce, Ingalls claimed a privilege on certain documents based on the federal Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act) (42 U.S.C. § 299b-21 et seq. (2012)). Plaintiff subsequently filed a motion to compel the production of the documents, which the Cook County circuit court granted. Ingalls refused, based on the Patient Safety Act and sought a contempt finding in order to facilitate appellate review. The court found Ingalls in contempt, and Ingalls appealed.

         ¶ 2 In this appeal, Ingalls contends that the documents constitute patient safety work product under the Patient Safety Act and the federal law preempts the circuit court's production order. We agree with both contentions, and accordingly, we reverse and remand the matter for further proceedings.

         ¶ 3 I. BACKGROUND

         ¶ 4 A. The Patient Safety Act

         ¶ 5 The Patient Safety Act (Pub. L. No. 109-41, 119 Stat. 424 (codified at 42 U.S.C. § 299b-21 et seq.)) established a voluntary reporting system of patient safety information by health care providers designed to analyze and improve patient safety and the quality of health care. Patient Safety and Quality Improvement, 73 Fed. Reg. 70, 732, 70, 732 (Nov. 21, 2008) (to be codified at 42 C.F.R. pt. 3). In order to encourage the voluntary reporting, the law provides privilege and confidentiality protections for patient safety information (id.), known as "patient safety work product," a broad set of information, such as data, reports, records, and written statements, that could help improve patient safety and the quality of health care. 42 U.S.C. § 299b-21(7)(A) (2012)). Health care providers share this information with patient safety organizations, which are federally certified groups who collect and analyze patient safety work product and, in turn, recommend strategies to improve patient safety and the quality of health care. Id. §§ 299b-21(4), 299b-24; S. Rep. No. 108-196, at 5 (2003). Because the privilege and confidentiality protections are essential to the functioning of the system created by the Patient Safety Act, health care providers who disclose patient safety work product can face monetary fines of up to $10, 000 per disclosure. 42 U.S.C. § 299b-22(f)(1) (2012).

         ¶ 6 B. The Litigation

         ¶ 7 Plaintiff's February 2016 amended complaint frames this appeal. Her lawsuit alleged that defendants committed medical malpractice when they failed to adequately monitor and treat the blood glucose levels of Rosalie Galmore Jones over the course of November 17 and 18, 2013. As a result of defendants' alleged negligence, plaintiff asserted that Jones suffered injuries that caused or contributed to her eventual death in October 2014.

         ¶ 8 Ingalls and Teruel filed an answer, denying any negligence. Hall filed a motion to dismiss based on her noninvolvement in Jones's care, though the record is unclear whether that motion was resolved prior to this appeal. All the meanwhile, the parties were conducting discovery.

         ¶ 9 In one of plaintiff's written interrogatories, she asked Ingalls to state whether the incident identified in the complaint was reported to, or investigated by, any hospital or governmental committee, agency, or body. Ingalls objected, as the interrogatory sought privileged information and directed plaintiff to an attached privilege log, in which it claimed privilege on six documents: incident review No. 25472, incident review No. 25753, complaint No. 5101, complaint No. 5478, the security department incident report, and the privilege file of Dr. Rita Oganwu. Concerning the first five documents, Ingalls claimed that they were privileged under the Illinois Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2016)) and the federal Patient Safety Act (42 U.S.C. § 299b-21 et seq. (2012)). Concerning the file of Dr. Oganwu, Ingalls claimed it was privileged under Illinois's Health Care Professional Credentials Data Collection Act (410 ILCS 517/1 et seq. (West 2016)).

         ¶ 10 Additionally, in one of plaintiff's requests to produce, she asked Ingalls to produce any documents that describe statements made by Jones, her family, anyone with knowledge of the events at issue in the complaint, or anyone investigating the events at issue in the complaint. In response, Ingalls stated that it had turned over several responsive documents already and directed plaintiff to an attached privilege log, in which it claimed privilege on the same six documents on the same bases as it did in its response to plaintiff's interrogatory.

         ¶ 11 Plaintiff subsequently filed a motion to compel the production of the allegedly privileged documents, arguing that, "[i]n light of Illinois broad discovery rules, if there is any doubt" about whether the documents should be produced, they should be produced. The circuit court ordered Ingalls to articulate the reasons for its claims of privilege and provide the documents for an in camera review.[1] Shortly thereafter, Ingalls produced the security department incident report and the privilege file of Dr. Rita Oganwu for plaintiff, and it accordingly updated its privilege log to include only the four remaining documents. Ingalls provided the remaining documents for the court's review.

         ¶ 12 All four documents contain the heading "Healthcare Safety Zone Portal" on the top of the page, and all four bear the name "Clarity Group, Inc. Copyright" at the bottom of the page. Generally, incident review No. 25472 detailed an incident that occurred on November 18, 2013, and its aftermath involving Jones's blood glucose levels while she was hospitalized at Ingalls. The document appears to have been created on December 5, 2013. Incident review No. 25753 detailed an incident involving Jones that occurred while she was hospitalized at Ingalls, but does not relate to her blood glucose treatment around November 17 and 18, 2013. The document appears to have been created on January 8, 2014. Complaint No. 5101 detailed an in-person complaint made by Gladys Galmore, the daughter of Jones, to an employee at Ingalls regarding the treatment administered to Jones on November 18, 2013. Galmore's complaint itself was received by Ingalls on December 4, 2013, and it appears the report was created on December 11, 2013. Lastly, complaint No. 5478 detailed an incident not relevant to this appeal.

         ¶ 13 Ingalls also responded to the circuit court's order and plaintiffs motion, arguing that, under the Medical Studies Act and the Patient Safety Act, the documents were privileged. Under the Patient Safety Act, Ingalls posited that the documents constituted patient safety work product, as they were assembled for submission to a patient safety organization for the purpose of improving patient safety and the quality of health care.

         ¶ 14 Ingalls attached an affidavit from Linda Conway, its associate general counsel, who averred that, in 2009, Ingalls contracted with Clarity Patient Safety Organization (Clarity), a federally certified patient safety organization, to conduct activities to improve the hospital's patient safety and quality of health care pursuant to the Patient Safety Act. Conway asserted that the documents at issue were created, prepared, and generated for submission to Clarity for those purposes. According to Conway, the documents were patient safety work product, and the healthcare safety zone portal provided the means for Ingalls to report such work product to Clarity.

         ¶ 15 Plaintiff did not reply to Ingalls's filing.

         ¶ 16 On November 28, 2016, following a hearing on plaintiffs motion to compel, the circuit court granted the motion in part and denied the motion in part, requiring Ingalls to disclose only the portions of the documents that it had circled, which were parts of incident review No. 25472, incident review No. 25753, and complaint No. 5101. The court determined that the information it circled was "obtained prior to the peer review" and thus discoverable. Ingalls's attorney posited that, while that may be the standard under the Illinois Medical Studies Act, it was not under the federal Patient Safety Act, which required only that the work product be assembled for purposes of reporting to a patient safety organization and actually be reported. The circuit court responded that, unless the information in the documents had been tendered to plaintiff in some other form, such as medical records, Ingalls could not broadly assert a privilege on the information circled in the documents. The court observed that the documents contained "some of plaintiff's medical history" and conversations with her family and that Ingalls could not simply use the documents in peer review for purposes of shielding them from disclosure. The court, however, ordered complaint No. 5478 not to be disclosed in its entirety.

         ¶ 17 Ingalls filed a motion to reconsider, focusing its argument entirely on the documents being privileged under the Patient Safety Act. Ingalls attached a supplemental affidavit from Conway, who averred that Ingalls maintained a patient safety evaluation system for purposes of collecting information in order to report it to Clarity. She additionally stated that the information contained in incident review No. 25472, incident review No. 25753, and complaint No. 5101 was assembled, developed, and prepared "solely" for submission to Clarity and that Ingalls reported the documents to Clarity through its healthcare safety zone portal. Conway added that the documents were not Jones's original medical records and Ingalls had produced all original medical records to plaintiff. Conway asserted that the documents had never been removed from the patient safety evaluation system for any purpose other than for internal quality purposes and they had not been reported to, or investigated by, any other agency or organization other than Clarity. Lastly, she stated that there were no other reports pertaining to the incidents alleged in plaintiff's complaint that were collected or maintained separately from Ingalls's patient safety evaluation system.

         ¶ 18 Plaintiff did not file a response, but during the hearing on the motion to reconsider, her attorney asserted that this was because he was "not privy" to the documents and thus could not adequately address the Patient Safety Act's application to them. The circuit court denied Ingalls's motion. Thereafter, Ingalls refused to comply with the court's production order and requested that the court find it in "friendly contempt" in order to facilitate appellate review of the privilege issue. The court subsequently found Ingalls in contempt and imposed a sanction of $1.

         ¶ 19 Ingalls timely appealed the circuit court's order finding it in contempt pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016), which provides for the appeal of contempt orders imposing monetary sanctions. When a party appeals a contempt order based on a discovery violation, the underlying discovery order also becomes subject to appellate review. Harris v. One Hope United, Inc., 2015 IL 117200, ¶ 6.

         ¶ 20 During the pendency of this appeal, we allowed the Illinois Health and Hospital Association, the American Medical Association, the Alliance for Quality Improvement and Patient Safety, the Illinois State Medical Society, and Clarity to file a joint amicus curiae brief in support of Ingalls. We also allowed the Illinois Trial Lawyers Association to file an amicus curiae brief in support of plaintiff.

         ¶ 21 II. ANALYSIS

         ¶ 22 On appeal, Ingalls contends that the circuit court erred in ordering the disclosure of the documents because they constitute patient safety work product and are privileged under the plain language of the Patient Safety Act. Ingalls further contends that the Patient Safety Act's privilege protection on such work product preempts the court's production order.

         ¶ 23 A. Whether the Documents Constitute Patient Safety Work Product

         ¶ 24 1. Discovery Generally

         ¶ 25 We begin by addressing the propriety of the circuit court's discovery order, which compelled the production of incident review No. 25472, incident review No. 25753, and complaint No. 5101. In plaintiff's brief, she does not identify on what basis she had a right to the documents, but in her motion to compel filed in the circuit court, she argued that they should be discoverable because of "Illinois broad discovery rules." Presumably plaintiff was referring to our supreme court rules on discovery, particularly Rule 201(b), which defines the scope of discovery in civil cases. See Ill. S.Ct. R. 201(b) (eff. July 1, 2014). Under the rule, "full disclosure" is the default discovery rule with only a few delineated exceptions, and a party may obtain discovery "regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts." Ill. S.Ct. R. 201(b)(1) (eff. July 1, 2014).

         ¶ 26 One such exception to the full disclosure requirement is privileged documents. Ill. S.Ct. R. 201(b)(2) (eff. July 1, 2014). Privileges are created "to protect interests outside the truth-seeking process," and therefore, they must "be strictly construed as exceptions to the general duty to disclose." Klaine v. Southern Illinois Hospital Services, 2016 IL 118217, ¶ 15. The burden of establishing the applicability of a privilege is on the party seeking to invoke it, here Ingalls. Eid v. Loyola University Medical Center, 2017 IL App (1st) 143967, ¶ 40. A party may meet this burden by submitting the allegedly privileged materials for an in camera review or by submitting affidavits setting forth facts sufficient to establish ...


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