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Mnookin v. Northwest Community Hospital

Court of Appeals of Illinois, First District, Sixth Division

July 27, 2018

BARRY MNOOKIN, Independent Executor of the Estate of Millicent E. Mnookin, Deceased, Plaintiff-Appellee,
v.
NORTHWEST COMMUNITY HOSPITAL, an Illinois Corporation; MIDWEST ANESTHESIA PARTNERS, LTD., an Illinois Corporation; SYED AHMED, M.D., Individually; KAREN LEIDER, R.N., Individually; BARBARA SLAGER, R.N., Individually; VALARIE LAWRY, R.N., Individually; WOMANCARE, P.C., an Illinois Corporation; and SHERI MERCHANT, M.D., Individually, Defendants(Northwest Community Hospital, Defendant-Appellant).

          Appeal from the Circuit Court of Cook County. No. 15 L 11868 Honorable Moira Susan Johnson, Judge Presiding.

          JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Cunningham and Delort concurred in the judgment and opinion.

          OPINION

          CONNORS JUSTICE

         ¶ 1 Plaintiff, Barry Mnookin, independent executor of the Estate of Millicent E. Mnookin, deceased, filed a medical malpractice and wrongful death action against Northwest Community Hospital (NCH) and other defendants. Plaintiff alleged that after decedent underwent surgery at NCH, she went into cardiac arrest and subsequently passed away. During discovery, plaintiff served written interrogatories and a request for production of documents on NCH. NCH presented a privilege log, asserting a privilege to the listed documents, premised on the Medical Studies Act (Act) (735 ILCS 5/8-2101 et seq. (West 2014)). Plaintiff moved for an in camera inspection of the documents listed in NCH's privilege log, asking the trial court to make a determination on discoverability. After conducting an in camera review of the documents identified in the privilege log, the trial court overruled NCH's claim of privilege under the Act as to 17 of the documents and sustained NCH's claim of privilege as to 7 of the documents. NCH then moved for a finding of "friendly" contempt, in order to appeal the trial court's ruling on the production of the disputed documents. The trial court entered an order holding NCH in civil contempt pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) for its failure to produce the 17 documents in question and sanctioned NCH $500. NCH now appeals. For the following reasons, we reverse the trial court's discovery order, vacate the contempt order, and remand for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 On May 13, 2015, the decedent, while under general anesthesia, allegedly suffered a drop in oxygen levels and cardiac arrest during a surgical procedure at NCH. The decedent was taken to the intensive care unit (ICU) and subsequently passed away on May 28, 2015.

         ¶ 4 On November 20, 2015, plaintiff filed suit against NCH; Dr. Syed Ahmed, the anesthesiologist during the decedent's surgery; and other defendants. Plaintiff alleged various acts of negligence by Dr. Ahmed, as an employee, agent, or apparent agent of NCH, during the surgery. Plaintiff sent NCH requests for production of documents, and in response, NCH filed a privilege log and then later an amended privilege log. In the amended privilege log, NCH identified 24 separate documents (Document Nos. 1 through 24) as privileged and protected under the Act. Document No. 1 was titled "Quality Management Worksheet Confidential Peer Review Information, Anesthesia and Pain Medicine." Document No. 2 was titled "Quality Management Worksheet, Confidential Peer Review Information Obstetrics/Gynecology." Document No. 3 was titled "OB/GYN Quality Improvement Audit Committee Minutes." Document Nos. 4, 5, and 6 were titled "Anesthesia Quality Improvement Audit Committee Minutes." Document Nos. 7, 8, and 9 were titled "NCH Medical Staff Quality Committee Minutes." Document No. 10 was titled "Sentinel Event Measures of Success Draft Report." Document No. 11 was titled "Sentinel Event Measures of Success Summary Report." Document Nos. 12 through 16 were titled "Root Cause Analysis Framework." Document No. 17 was titled "Patient Safety Event Debriefing Meeting Notes Pursuant to Root Cause Analysis Investigation." Document No. 18 was titled "Organization Self Report to the Joint Commission." Document Nos. 19 through 23 were titled "Meeting Notes Pursuant to Root Cause Analysis Investigation." Document No. 24 was titled "Summary Report to the Joint Commission for Sentinel Event Number 224628."

         ¶ 5 On September 23, 2016, plaintiff filed a motion asking the trial court to conduct an in camera inspection of all the documents listed in NCH's amended privilege log. On November 4, 2016, the trial court asked NCH to redact the portion of each privileged document for which NCH claimed privilege. In response, NCH redacted the entire text of each document except for printed headings. On December 5, 2016, a hearing was held on the privileged documents. At that hearing, the trial court stated that it had gone through the "remainder of the documents that defendants are claiming privilege; and in substance, I can agree with most of what it is that they're trying to claim falls under the [A]ct." The trial court stated, "The concerns that I have fall with information that had to have been or should have been contained in medical records of some sort that were then used in support of providing data to the group." The trial court went on to say:

"When I look at these forms and I see under, for example, root cause in some spots, there are places where it's clear that information had to have been given from the medical records, and I want to be sure that those medical records had been tendered to the plaintiff, or where there is an indication of abstract, I want to know those records from which the abstract occurs, those record were given to the plaintiff."

         ¶ 6 The trial court then held a brief recess and afterward stated that it wanted NCH to provide it with more information and set a new hearing date.

         ¶ 7 On December 22, 2016, plaintiff requested that NCH produce "all non-privileged documentation regarding any and all morbidity and mortality conferences held regarding [the decedent]." NCH filed a response to the motion that included affidavits from Katie Viggiano, Tiffany Ferguson, Claudia Ronayne, and Dr. Alan Loren, all attesting to the privileged nature of the documents described in the amended privilege log. The contents of these affidavits will be discussed in more detail below, but we will briefly discuss them here.

         ¶ 8 Ronayne, the executive director of service excellence of NCH, stated in her affidavit that the Department of Service Excellence is the quality department of NCH that is responsible for overseeing and implementing activities of the hospital relating to quality improvement, peer review, patient safety and outcomes, and accreditation and certification. She stated that her responsibilities include leading the Quality and Patient Safety Committee, which is a committee whose charge is to monitor, initiate, guide, and coordinate organization-wide quality assessment and improvement and patient safety activities. It is an internal quality committee of the hospital formed for the purpose of internal quality control and patient safety. Ronayne also ensures compliance with external regulatory agencies and external reporting, including reporting to the Joint Commission, an independent organization that accredits and certifies health care organizations across the country.

         ¶ 9 Ronayne also stated in her affidavit that she is familiar with the peer review process that takes place within the various departments of NCH. Each medical staff department has a department-specific quality committee to provide a mechanism for monitoring and evaluating the quality and appropriateness of patient care rendered by physicians within the department. Each department has established indicators for peer review by the department-specific quality committee. The Department of Anesthesia has indicators for peer review which are quality screening criteria, and when one is met, it triggers the peer review process within the department. The Department of Obstetrics and Gynecology also has indicators for peer review, and when one is met, it triggers the peer review process within the department. The indicators for review for both departments were attached to Ronayne's affidavit and included triggers like death and adverse outcomes.

         ¶ 10 Ronayne further stated in her affidavit that based on the circumstances surrounding the decedent's care, one or more of the indicators for review established by the two departments were met. As a result, this triggered the initiation of peer review processes within each department that were conducted by the Anesthesia Quality Improvement Audit Committee and the OB/GYN Quality Improvement Audit Committee, two peer review committees providing a mechanism for monitoring and evaluating the quality and appropriateness of patient care rendered by physicians.

         ¶ 11 Viggiano, a quality improvement resource specialist in the Department of Service Excellence of NCH, stated in her affidavit that she provides support for medical staff peer review quality initiatives and activities, performs ongoing reviews of cases and events that meet quality review indicators, monitors monthly reporting for case identification, and monitors the performance of case reviews and support of department-specific quality improvement committees. In her role as a quality improvement resource specialist, she assembles information and prepares data at the direction and for the use of the OB/GYN Quality Improvement Audit Committee through the creation of quality management worksheets. Viggiano stated that the Medical Staff Quality Committee is another committee of NCH that is an internal quality committee formed for the purpose of internal quality control and patient safety. The committee has the authority to conduct internal review and investigation of incidents relating to peer review, quality and patient safety, and medical staff education.

         ¶ 12 Ferguson stated in her affidavit that at the time of the incident, she was a quality improvement resource specialist in the Department of Service Excellence at NCH. In that role, she provided support for medical staff peer review quality initiatives and activities, performed ongoing reviews of cases and events that met quality review indicators, monitored monthly reporting for case identification, and monitored the performance of case reviews and support of department-specific quality improvement committees. In her role as quality improvement specialist, she assembled information and prepared data at the direction of the Anesthesia Quality Improvement Audit Committee through the creation of quality management worksheets.

         ¶ 13 Dr. Loren, NCH's chief medical officer, stated in his affidavit that he was a member of the Quality Committee of the Board of Directors of NCH at the time of the incident, as well as a member of the Quality and Patient Safety Committee of NCH. Dr. Loren stated that he was authorized to direct the performance of root cause analysis investigations of patient care, which are done for the purpose of improving the quality of patient care and reducing the risk of similar events occurring in the future.

         ¶ 14 On January 20, 2017, the court held another hearing regarding the privileged documents. Defense counsel argued that once the privilege was established for the documents under the Act, all information, statements, interviews, or anything contained in those documents is afforded the protection of the Act. Defense counsel noted that he had provided the affidavits of individuals that averred those documents were prepared at the request ...


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