Nos. 2--07--0717 & 2--07--1272 cons. F iled: 8-14-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DISTRICT

______________________________________________________________________________ JUDY ANDERSON, Deceased, by Leonard ) Appeal from the Circuit Court Anderson, Special Administrator, ) of Ka ne Co un ty. ) Plaintiff-Appellee and ) Cross-Ap pellant, ) ) v. ) No. 04--L--541 ) RUSH-COPLEY MEDICAL CENTER, I NC., ) ) Honorab le Defendant-Appellant and ) F. Keith Brown, Cross-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUDY ANDERSON, Deceased, by Leonard ) Appeal from the Circuit Court Anderson, Special Administrator, ) of Ka ne Co un ty. ) Plaintiff-Appellant, ) ) v. ) No. 04--L--541 ) RUSH-COPLEY MEDICAL CENTER, I NC., ) Honorab le ) F. Keith Brown, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE GROMETER d

elivere d the opini on of the c ourt: On February

13, 2002, Judy Anderson died in the emergency

room at Rush-Copley Medical Cente r. Leonard Anderson ( plaintiff), decedent's husband and the administrator of her estat e , commenced

a wrongfuldeath and survival action against Rush-Copley Medical Center, Inc. (RushCopley or defenda nt). During disco very , defend ant ref used to te nder to pl aintiff c ertain

document sNos. 2-- 07--0717 & 2--07 --1272 c ons.

1 The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) defines a "sentinel event" as "an unexpected occurrence involving death or serious physical or psy

chological in ju ry, or the ris k thereo f." Joint Co mmission on A ccreditation of Healthca

re Org anizations , -2- on the basis that they are

privi leged under

sections 8--2101 t

hrough 8--2105 o f the Code

of Civil Procedure (Medical Studies Act or the Act) (735 IL CS 5/8--2101 et seq. (West 2004 )). As a r esult, defendant was held in contempt. The issues presented in t his con solidated, interlocutory appe al

concer n the scop e of the p

rivileg e provided by

the Medic al Studies Act. I. BACKGROUND On February

13, 2002, Judy Anderson presented to the emergency

room at Rus h-Copley

with complain ts of shortness of breath, wheezing, and feve r. Later that day , Judy, then 49 y ea rs ol d, unexpectedly

died. The medical examiner listed the cause of death as bronchopneumonia. Plaintiff commenced

this action on A pril 29, 2003. In his first-amended complaint, plaintiff alleg ed that defendant committed various careless and neglige nt acts and/or omissions in diagnosing and treating decedent's condition. During discovery, plaintiff pr o pounded a set of interrogatories. One of the interrogatories askeddefendant to state whether a hearing dealing withmortality or morbidity was held regarding decede nt's care and treatment. Defenda nt respondedto this interrogatory in the affirmative. Another interrogatory

asked de fendant to identif y a ny s tatement s, information, and/or document s relate d to the aforemention ed hear ing. Defend ant ref used to an swer, c laiming t hat such i

nformati on is privileged

under the Act. Plaintiff then requested a privilege log itemizing the documents related to the mortality and morbidity hearing. Defendant

respo nded b y informi ng plai ntiff that d eceden t's medical care was the subject of a pee r review by

the Rush-Copley Sentinel Event 1 Analy sisNos. 2-- 07--0717 & 2--07 --1272 c ons.

http://www .jointcomm

ission.or g/SentinelEvents

/se_glo ssary .htm

(last visited Aug. 6, 2008). (This de fi ni ti on wa s a do pt ed by R us h- Co pl ey.

2 Documents 29 and 33 are actually copies of the same Action Plan. -3- Committee (Committee) and reiterated its opinion that the documents genera ted by said Committee are pri vilege d pursuan

t to the Ac t. On August

16, 2005, plaintiff filed a motion to compel production of the documents related to the Committee's re

view, ar guing that def endant failed to meet its burden of proving that any of the document s withheld

are pri vilege d under th

e Act. I n respons e, defe

ndant ar gued th at it

had met its burden o f establi s hing the privil eged n ature of the docum

ents in que stion. Atta

ched to a nd in support of defendant's response was the a ffidavit of Sharon Rich, a registered nurse and t he ris k manager at Rush-Copley betwee

n 1997 and 2002, including when the medical care in question was administeredto decedent and when said care wa s reviewed by the Committee. In the

affidavit, Rich stated that the Committee met on February 22, 2002, February

28, 2002, March26, 2002, and June 15, 2002. Rich also provided a description of the 33 documents withheld, which she averr ed "were generated exclusively for or by

the Sentinel Event Analysis Committee foruse only of the Committee in conducting its quality review of the medical care rendered Judith Anderson." A t issue in this case are documents 6, 7, 8, 9, 10, and 1 3 (colle ctively , the medical journal articles) and document s 29 an d 3 3 ( co ll ec ti ve ly, the Action Plan). 2 Rich stated that these documents were stored in a three-ringnotebook and were accessible only to members of the Committee. On December 15, 2005, the trial court held a hearing on plaintiff' s motion to compel, during which it conducted an in

camera review of the documents in question. At the conclusion of the he aring, the court granted a motion by plaintiff to depose Rich, and her de position was taken on March 15, 2006.Nos. 2-- 07--0717 & 2--07 --1272 c ons.

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At a hearing on September 1 2, 2006, th e court h eard ar gumentsfrom both

parties and took the matter under advisement. On October 24, 2006, the trial court e ntered an o rder denying plain tiff's motion tocompel, o n the basi s that the documents are "protected by the Medical Studies Act." On December 7, 2006, plaintiff filed a motion for clarification and/or reconsidera tion of the October 24, 2006, order. In the motion, plaintiff arg ued, inter ali a , that

it is uncle ar from the co urt's order whether it ruled that each and every one of the 33 items withheld by defendant was entitled

to protection under the Act. Followi ng a hear ing, the co urt an nounc ed tha t it w ould grant p laint iff's motion for clarification. On January 3, 2007, the court ente red a revised order. Relevant here , the court determined that the medical journal articles were not generated solely

for the purpose of the Committee and ther

efore t hose doc uments are discoverable. I n addition, the court "assum[ed]" that the Action Plan, which con sists of vari ous "risk reduction strategies," wa s the "final result of a medical p eer review comm ittee" a nd therefore is n ot privile ged und er the Act. On January 26, 2007, defenda nt filed a motion to reconsider portions of the order entered January 3, 200 7, in cludi ng the c ourt's rulin gs regarding the medica l journal articles and the Action Plan. Attached

to the motion was a supplemental affidavit from Rich, in which she stated that: (1) the Action Plan is a summary of all issues consider ed by the Committee, along with suggestions for "risk reduction strategies"; (2) the Action Plan contains discussion, recommendations, and conclusions of the Committee; (3) the Committee does not actually make a ny chang es in policy or practic e but only

providessugge stions; (4) it is up to othe

rs, including the medical staff, to decide if chang es in

policy or practice will be made; and (5) not all of the Committee's recommendations

are implemented. On February 22, 2007, a

hearing was held on de

fendant 's motion . The cou rt did notrule o n the motion a t that time. However, at the conclusion of that hearing, the court orderedNos. 2-- 07--0717 & 2--07 --1272 c ons.

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defendant to disclose and produc e a ny ho spi tal pol icy c han ged as a res ul t o f th e Ac ti on P lan . In response, defendant disclosed that, although no hospital policies were cha nged as a r esult of the Action Plan, a new policy w as enacted. On March 27, 2007, the trial court entered a third order regarding the

discover ability of the document s in question. The co urt concl uded that the medical journal articles are not privileg ed under the Act, because the Act protects only "investigative and

deliberative materials genera ted by

a hospital c ommittee in

formulat ing its recommendations." The court recog nized thatRich testified in her discovery

deposition that member s of the Co mmittee were assigned to conduct resea rch concerning issues involving decede nt's med ical ca re and th at this re search

resulted in locating and using medical journal articles related specifica lly to decedent' s medical care. Nevertheless, the cour t noted that the medical journal articles are available to the general public and we re not produced as

a result of the Committee' s interna l investigation or study. The court emphasized that a different result would have ensued if "the medical journal articles were refere

nced or attached

to a document which was authored by

a committee member

who was doing re search

on behalf of the committee." In such an instance, the document would constitute a "document g enerated for the purpose of

peer review. " Here , howeve

r, the ar ticles we re not at tached t o or ref erenced by

any other doc ument. With respect to the Action Plan, the court, citing to Ardisana v. Nor thwest Comm unity Hospital, Inc. , 342 Ill. App. 3d 741, 747 (2003), stated that the "results" of a

peer-review committee

are not privileged. In this case, the court found that the A ction Plan "contained recommendations which led to the revisions of proced ures for medical staff at the hospital" as we ll as "recommendations [that were] not necessarily implemente d." The court determined that the former recommendations are not p rivileg ed, bec ause the

y c onstituted

"ultimat e decisions and action takenNos. 2-- 07--0717 & 2--07 --1272 c ons.

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which were a direct

result of the plan and acted upon by the hospital without in [ sic ] any other formal processof impleme ntation. " The latte r recommendations, however, remain privileg ed since they

were not implemented. Thus, the court redacted those portions of the Action Plan that it deemed privileged. The court then provided defense counsel with a redacted copy of the A ction Plan for review before it was disseminated to plaintiff. At a hearing with r

espect t o the status of the redacted documents, defendant asked the court for a continu ance to o

btain an a ffidavit from its di

rector of lega l affairs, Stacey

Ries, in order to file

a response to the redactions. The court gr anted the continuance over plaintiff's objection. On June 1, 2007, defendant filed its "Position on and Objection to the Court's Redactions of the Action Plan." In this filing, defendant, rely ing on Ardisana , argu ed that " the entir ety of the Ac tion Plan is privileged

pursuant to the Med

ical Studie s Act, regar

dless of whether changes it rec ommended were

ever implement ed." Defendant added that, although Ardisana held that the "results" of a peer-re view committee are not privileged, such a committe e's re commenda tions and s ugge stions res ulting in changes are privilege d. Attach ed to def endant' s filing w as an af

fidavit in which Ri es stated

that only

one policy and

procedure change was made as a r esult of the Committee's review of the care provided decedent. Plaintiff moved to strike the affidavit, on the basis that its contents are conclusory

and based on hearsay . Plaintiff also respondedto defendant's motion, arguing that the discover ability of a peer-review c ommittee' s final re port doesnot depend on wheth er its recommendations were ever implemented. At a hearing held on June 28, 2007, the trialcourt revi ewed ea ch of the numbere d "risk reduction strategies" list

ed in the Action Plan , in conjun ction with the Ries a

ffidavit and the pa

rties' argume nts. At the conclus ion of the hearing , the cour

t prepar ed a tabl e listing

which of the "ris kNos. 2-- 07--0717 & 2--07 --1272 c ons.

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reduction strat egi es" in

the Action Plan are privileged and thus not discoverable a nd which of the recommendati ons in the Action Plan are not privileged and thus discoverable. De fendant refused to produce the documents that the court found discoverable. Thereafter, the c ourt found defendant guilty of civil contempt and imposed a fine of $100, the pay ment of which w as stayed pe nding appe al. In addition, the court denied plaintiff' s motion to strike the Ries affidavit, bu t it allowe d plaintiff to depose Ries with r

espect t o "those areas o f her af

fidavit in which this court ruled in

favor of the Defe ndant ove r the objection of Pl aintiff' s counsel ." On July 17, 2007, d

efenda nt fil ed a notice of appeal from the order of June 28, 2007, and all related orders. On July 27, 2007, plaintiff filed a notice of cross-a ppeal. T hese app eals wer

e docke ted in this c ourt as c aseNo. 2--07--0717. The 33 doc

uments ide

ntified by Rich wer e filed u nder sea l in this cou

rt. Meanwhi le , on July 11 , 2007, pla intiff fil ed a "Motion to Cer tify QuestionsPursuant t

o Supreme Court Rule 308 [(155 Ill. 2d R. 308)]." On November 26, 2007, the trial court entered an agreed order c ertify

ing the f ollowing three qu estions: "1. Is the applicability

of the M edica l Studies Act privilege to a peer review commi ttee's final re

port depe ndent upo n 'imp le mentation' of that report by later, non peer review c ommittees ? 2. Is the discoverability

of a peer review committee's final report depende nt on later use of the report b y ot

her, non peer re view dep artments ? 3. If a later, non pee

r review committee consider s whethe r to take action a s a resul

t of a final report, does the Medical Studies Act protect disclosure of the final report they used or any other materials that they considered ?"Nos. 2-- 07--0717 & 2--07 --1272 c ons.

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On December 10, 2007, plaintiff filed an applic ation for

leave to appeal p ursuant t o Rule 308. T

his court allowed the application on January 16, 2008, and docketed

the appeal under case No. 2--07-- 1272. Therea fter, we grant ed pla inti ff's motion to consolidate case No. 2--07--0717 with case No. 2--07--1272. II . ANAL YSIS A. Case No. 2--07--0717 In case No. 2--07--0717, defendant arg ues that the trial court erred in holdingthat the medical journal articles and the Action Plan are not privile ged und

er the Me dical Stud

ies Act. I n his crossappeal, plaintiff asserts that the trial court erred in holding that only the "implemented

recomme ndations" of the Action Plan are discoverable. We beg in our analy sis with a review of the Act itself. Section 8- -2101 of t

he Act pr ovides in p ertinen

t part: "Allinfor mati on, inter

views, re ports, sta tements, m

emorand a, reco mmendatio ns, letters of refe

rence o r other th ird party confide ntial asse ssments of a hea lth ca re prac titi oner's professional competence, or other data of

*** committ

ees of lic ensed or

accre dited hosp itals

or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Commit tees, Utilization Review Committees, Credential Committees and Executive Committees , or their designees (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study fo r t he purpose of reducing morbidity or mortality, or for improving patient care or increasing or gan and tissue donation, shallbe privileged, str

ictly confide ntial and shall be u se d only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, orNos. 2-- 07--0717 & 2--07 --1272 c ons.

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granting, limiting or revoking staf f privileges or agree

ments for services." 735 I LCS 5/8-- 2101 (West 2004). Se ction 8--2102 of the Act provides that such privileged mater ial "shall not be admissible as evidence, nor disco verable in any action of any

kind in any court." 735 IL CS 5/8--2102 (West 2004). The purpose o f the Act

is to "encourag e candid

and volun

tary studies a nd prog rams used to improve hospital conditions and patient care or to reduce t he rates of deat h and diseas e." Niven v. Siqueira , 109 Ill. 2d 357, 366 ( 1985); s ee also Jenkin s v. Wu , 102 I ll. 2d 468, 4 79-80 (19 84). The Act is premisedon the belie

f that, a bsent the privileg e, phy sicians mi ght be r eluctan t to sit on peer-review commi ttees and en gage in frank evaluations of their colleagues. Roach v. Sp ringfi eld Clinic , 157 Ill. 2d 29, 40 (1993). However, the Act was never intended to sh ie ld ho sp it al s f

ro m p ot en ti al li ab il it y ( Roach , 157 Ill. 2d at 42), and " 'not

every piece of information a hospital staff acquires is nondiscoverable, eve n if it is acquired by a peer-review commi ttee' " ( Frigo v. Silver Cross Hospital & Medical Center , 377 Ill. App. 3d 43, 65 (2007), quot ing Giangiulio v. Inga lls Memorial Hospital , 365 Ill. App. 3d 823, 835 (2006)) . The Act

protect s "documents which arise from the working s of a peer-review committee [citation] and which are an integral pa rt, but not the result, of the peer-review proce ss." Toth v. Jensen , 272 Ill. App. 3d 382, 385 (1995). Thus, information g ener ated prior to the

commence ment of the peer-review process but later disc losed to a peer-review committee is not privileged

under the Act. Grandi v. Shah , 261 Ill. App. 3d 551, 556 (1994). Similarly , any information generated after the peer-review process ends is discoverable. Grandi , 261 Ill. App. 3d at 556. Stated differently, the Act "protects against disclosure of the mechanisms of the peer-review process , including

informat ion gath ering a nd delibe rations le ading to

the ultimate decision renderedNos. 2-- 07--0717 & 2--07 --1272 c ons.

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by a peer-review committee, but does not protect ag ainst the discovery of inf ormation generated before the peer-review process beg ins or information gener

ated af ter the p eer-r

eview pr ocess ends." Pietro v. Marriott Senior Living Services, I nc. , 348 Ill. App. 3d 541, 549 (2004). The burde n of es tabli shin g a privilege under the

Act is on th

e party seeking to invoke it. Ardisana , 342 Ill. App. 3d at 746. This burden may be me tby s ubmitting

the mater

ials alle ged to be privileged for an in camera inspection or

by s ubmitting

affida vits settin g forth

facts su fficien

t to establish the appli cability

of the pr ivilege to the part

icular documentsbeing withheld. Ekstrom v. Temple , 197 Ill. App. 3d 120, 127 (1990). Whether a discover y privilege applies is a matter of law, subject to de novo review. Webb v. Mt. Sinai Hospital & Medical Center of Chicago, Inc. , 347 I ll. App. 3d 817, 825 (2004). However, whether specific materials arepart of an internal quality control

or a medica

l study is a fac tual dete

rmination , which wi ll not be re versed o n review

unless it is agains tthe manifest weight of the evidence. Frigo , 377 Ill. App. 3d at 64; Berry v. West Suburban Hospital Medical Center , 338 Ill. App. 3d 49, 54 (2003). 1. Medical Journal Articles Defendant

argues that the trial court erred in finding that the medical journal articles were notprotect

ed from d isclosure under the Act. As set forth above, the privilege in the Act applies to "[a]ll informat ion , intervie ws, reports , statemen

ts, memoranda, recomme

ndatio ns, letters of reference or other third party conf

idential assessments of a healthcare practioner 's professional competence,

or other data of *** committees of licensed or accredited hospitals or their medical staffs *** used in the cour se of internal quality control." (Emphasis added.) 735 I LCS 5/8 --2101 (

West 2004) . This provision has been interpreted as protecting documents "initiated, c reated, prepared, or g enerated by

a peer-reviewcommitte e." Chicago Trust Co. v. Cook County Hospital , 298 Ill. App. 3d 396, 406Nos. 2-- 07--0717 & 2--07 --1272 c ons.

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(1998). I n this c ase, defendant concedes that the medica l journal articles were not written specific ally

by or for the Committee or f or its exclusive use. Neverth eless, defendant argues that the medical journal artic les ar e priv ileged under the Ac t becau se the y were locat ed at t he Com mitt ee's request , were us ed as a r

esource in conducting its review, and focused upon a particular issue arising from the c are gi ven to dec edent. At the outset, we note that the trial court expressed reservations about holdi ng that t he medical journal a

rticles a re not p rivil eged, reasoning that produc ing the articles would reveal the Comm itte e's "thoug

ht proce ss." Neverthel ess, the c ourt ultima tely con cluded that the medical journal articles arediscoverable because they were not initiated, created, prepared, or g enerated by the Committee. I

n this regard, the court emphasized that the medica l journal articles areavailab le to the gen

eral pub lic, they

were no t produced as a result of "internal investigation or study of the [Committee]," and they we re not attached to or referenc ed by any document

au th or ed by a member of the Committee. We understand the trial court's rationale; however, we c onclude that the medical journal articles are privileg ed because they r eflect the Committee's internal review proce ss, including informat ion gath ering a nd delibe rations. A s noted above, th e Act ha s been int

erpret ed to prot ect ag ainst disc losure of

the "me chanisms of the peer-reviewprocess, including information gathering and del iberations ." Pietro , 348 Ill. App. 3d at 549; see also Green v. Lake Forest Hospital , 335 I

ll. App. 3d

134, 137 ( 2002); Chicag o Trust Co. , 298 Ill. App. 3d at 402. Another court noted that the Act protects "the na ture and content

of an internal review process ." Zajac v. St. Mary

of Nazar ethHospital Center , 212 Ill. App. 3d 779, 788 (1991). Here, the agenda for the Committee meeting held on February 22, 2002, specifically state s that assig nmen ts would be

give n for a "[l ]iterature search." The minutes for the F ebruary 22 andNos. 2-- 07--0717 & 2--07 --1272 c ons.

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February 28, 2002, meetings reflect that assignments wer e in fact given for a literature sear

ch on two specific topics. Further, the age nda for the March 26, 2002, meeting lists one of the tasks for that date as to "[r]eview literature search information." The minutes of the March 26, 2002, meeting indicate that the literatur

e was " availa

ble and prov ided to the members." Moreover, it was at the March26 meeting that an assignment was fir st given to develop recommendations and an action plan. The Acti on Plan co ntains recomme ndati ons related to the topics discussed in the medical journal article s. In her deposition, Rich confirmed that the medical journal articles were obtained throu gh research by

members of the Committee. She also stated that the articles were "speci fic" to decede nt's case. Undoubtedly then, obtaining the medical journal articles constituted "information gatheri ng" related

to deced ent's c are and

thus was p art of the

"mecha nism " of the peer-review process . See Webster's Third New I nternational Dictionary

1401 (2002) (defining "mechanism" as "a process or technique for a chieving a result sometimes by cooperative effort"). In addition, although the trial court correctly noted that

the medical journal articles were not attached to any document

authored by a

Committee member, the record reflects that the articles were used by the Committee in its deliberations. The term "delibe rati on" has been defi ned as "a discussion and consideration by a number of persons of the reasons for and a gainst a measure." Webs ter's Third New Interna tional Dictionary 596 (2002). T he evidence cited in the previous paragrap h illustrates that the Committee obtained the medical journal articles as a result of assignm ents givenduring C ommittee meetings. The minute s from thos e meetings establish that the medical journal articles were addressed whe n developing the Action Plan. In fact, the Action Plan includes recommendations related to the topics discussed in the medical journal articles. Thus, the medical journal articles contributed to the Committee's deliberations in that they w ere obtained asNos. 2-- 07--0717 & 2--07 --1272 c ons.

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part of the information-gathering proc ess and they we re considered prior to the development of the Action Plan. As a result, their disclosure would reveal the Committee's " internal review process," and the tr ial cour t erred in ruling that they are not p rivileg ed under

the Act. While our holding is seemingly at odds with precedent stating that the Act does not protect information gener

ated bef ore the p eer-r

eview pr ocess b egins ( see Webb , 347 Ill. App. 3d at 825; Chicago Trust Co. , 298 Ill. App. 3d at 403; Grandi , 261 I ll. App. 3d

at 556; Menoski v. Shih , 242 Ill. App. 3d 117, 120-21 (1993)), a closer examination of Roach , 157 Ill. 2d 29, a case from our supreme court explaining the rationale for such a rule, indicate s that this is not the case. In Roach , the supreme court deter

mined th at information obtained prior to the commencement of the peerreview processcannot b e transformed into privileged information bylater reporting it to a peerreview committee. Roach , 157 Ill. 2d at 41. Absen

t such a r ule, the c ourt rea soned, " a hospita l could effec tively

in su la te fr om di sc lo su re vi rt ua ll y al l adverse facts known to its medical staff," there by providing "scant incentive for advan cing the goal of improved

patient c are" a

nd effe ctively subverting the purpose of the Act. Roach , 157 Ill. 2d at 41-42. The concerns implicated in Roach

are not present here. The medical journa l ar ticles did not reference decede nt's care. I

ndeed, the medical journal a

rticles c ould

not refe rence t he care administe

red to de cedent, because they existed before decedent sought treatment at Rush-Copley. As a result, applying the privilege to the medical journal article s would

not frustr ate the Act's g oal of impr

oved pati ent car

e, beca use doing so would notconcea

l any "adver se fact s" known todefenda nt's med ical staf f about decedent' s care. It is th is fact that distinguishes this case from the authoriti es cited by p laintiff

in his brief. All of those cases involve inf

ormation generated by

the defendant hospital's medical staff about the pa tient or personne l at issue. See Webb , 347 Ill. App. 3d 817 (addressing the applicability of the Act' s privilege to anNos. 2-- 07--0717 & 2--07 --1272 c ons.

3 Aside from the distinction noted above, it also appear s that none o f these courts relied exclusively

on the fact that the documents were prepar ed prior to t he commencement of the peerreview process. See Webb , 347 Ill. App. 3d at 826-27 (holdi ng that t he Act did not protect from disclosure the d ocumen ts at issue because they were prepared in part to identify any issues of liability); Chicago Trust Co. , 298 Ill. App. 3d at 403-04 (noting that affidavits submitted in support of apply ing Act 's privi lege to

certain document s were contrad

ictory ); Grandi , 261 Ill. App. 3d at 556 (rejecting application of Act because of a lack of evidence that the information at issue was obtained at the request of a peer-review committee). Moreover, the principal issue in Menoski did not even involve the appli cabil ity o f the Act but, rather, whe

ther the trial cou rt abuse d its discr

etion in ordering production of the documents at issue for an in camera inspection. Menoski , 242 Ill. App. 3d at 120. -14- "occurrence

summary" a

uthored by the hospital' s former risk manager and four memoranda authored by the same individua

l summ arizi ng int erview s wit h four docto rs, in cludi ng one o f the p atien t's treating phy sicians) ; Chicago Trust Co. , 298 Ill . App. 3d 396 (addre ssin g appli cabil ity of th e Act's privi lege to "incid

ent and situationa

l reports " authored by the hospital' s medical staff regarding the patient); Grandi , 261 Ill. App. 3d 551 (addressing the applicability of the Ac t's priv ile ge to conversations between the hospital's administrator, a licensed nurse, a nd a doctor regarding the patie nt's care) ; Menoski , 242 Ill. App. 3d 117 (addressing w he ther the

tr ial cour

t was entitled to conduct an in camera

inspection to determine whether the Act's pro tection applied to information regarding a hospital's decision to grant privi leges to the defendant doctor). 3 In fact, we find that denying the application of

the privilege to the medical journal articles would actually frustrate the goals of the Act. See Willing v. St. Joseph Hospi tal , 176 Ill. App. 3d 737, 744 (1988) ("[T]heNos. 2-- 07--0717 & 2--07 --1272 c ons.

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priv ilege will be accorded only after each document is scrutinized in light of the Act' s purpose"). In this reg ard, revealing

aspectsof the Comm

ittee's tho ught process would discourage medic al personnel from openly

discussing their colleagues' a ctions. See Roach , 157 Ill. 2d at 40. Plaintiff also arg ues that t he m edical journal articles are not privilege d because the Act protect s only documents and information g enerated specifica ll y for the use of a peer-review committee. See Green , 335 Ill. App . 3d at 137. It is true that the medical journal ar ticles were "generated" by

persons other than members of the Committee. Neverth

eless, under the f

acts of th is case, we do not believe t hat this factor bars the application of the privilege to the me dical journal article s, for it is not the contentsof the me dical jo urnal article s themselv es that is s ignific ant but, rather, the manne

r in which

the Comm

ittee u sed the me dical jou rnal ar ticles and what the

ir use would reveal about the Committee's internal review proc ess. In this regar d, we emphasize that the medical journal articles were located as a result of research conducted by members of the Committee during its review of decedent' s medical care. The articles were circulated to the entire Committee dur ing its review o f deced ent's me dical ca

re. Fur ther, a r eview of the medic al journa

l article s in conj unction with the A ction Plan indicate s that the a

rticles w ere utili zed by

the Commit

tee i n formulating some of

its recommendations. Thus, affording the Act's privileg e to the medical journal articles protects the Committee's internal thought p rocess, a proce ss that is unique to the Committee with resp ect to decedent's care. F or the aforementioned reasons, we reverse the trial court's ruling that the medical jou

rnal ar ticles ar e not privileged

under the Act. 2. Action Plan/Cross-Appeal With respect to the Action Plan, we must determine if the entire Action Plan is privileged, only part of th e Action P

lan is privileged, or none of the Actio n Plan is pr

ivilege d. Defe

ndant ass ertsNos. 2-- 07--0717 & 2--07 --1272 c ons.

-16-

that the entir e Action P

lan is priv ileged because it consistsonly

of "recommendations" and it neither makes an y c hanges to hos pital polic y no r direc ts that any

actions b e taken. In su pport of t his position, defendant

relies pri ncipally upon Ardisana , 342 I ll. App. 3d

741. I n his cros s-appea

l, plaintiff argues that

neith er the e xpre ss lan guage of the Ac t nor cas e law ap plying the A

ct suppor ts the trial court's ruling that only the implemented rec ommendation s of a p eer-rev iew co mmit tee's action plan are

disc ove rab le. In stead, plaintiff insists that the entire Action Plan is discoverable. Ardisana is instructive to this issue. In Ardisana , the plaintiff filed a medical malpractice action a gainst t he defe ndant hosp ital. During discover

y, t he plaint iff aske d the def

endant to produce " '[a]ny a

nd all writings, memos or document s pe rt ai ni ng to an y co nc lu si on s o r f in al re co mm en da ti on s f or an y p eer review pro cess, including the D epartment of Surgery, pertaining to [ the plaint iff].' " Ardisana , 342 Ill. App. 3d at 743-44. The trial court found that the requested document s were discoverable, but the defendant refused to produce them, on the ground tha t they were privileged under the Act. On review, the appella te court reversed. Ardisana , 342 Ill. App. 3d at 747. The court stated that the "results" of the peer-reviewprocess, which it defined as the "ul timate decisions made or actions taken by [a] committee, or [a] hospital," are not privileged. Ardisana , 342 Ill. App. 3d at 747. However, it held that "recommendations and internal conclusions of peer-reviewcommittees, which may or ma y not leadto those results, are not d iscover able ." (E mphasis in o rig inal.) Ardisana , 342 Ill. App. 3d at 747. In support of

its holding , the cour

t cited the "plain language" of the

Act, which provides that

" 'recommendations' used in the course of internal quality control" are protected from discl osure . Ardisana , 342 Ill. App. 3d at 747; see 735 I LCS 5/8--2101 (West 2004). Thus, Ardisana stands for the proposition that, although the "ultimate decisions made or actions taken" as a result of the peer-Nos. 2-- 07--0717 & 2--07 --1272 c ons.

4 In the trial court, plaintiff disputed whether the Committee was a peer-review committee. He does n ot renew

this arg ument in thi s appeal

.

-17- review process are not protected from disclosure unde r the Act, a peer- review commi ttee's "recommendations and inter nal conc lusions" that mayor may not lead to those c hanges are privileged. In this case, t he Action P lan consis ts of variou s "r isk reduction st ra te gi es " i de nt if ie d b y a peer-reviewcommittee of defen dant hospi tal. 4 As noted, the trial court determined that some of these recommendations were implemented and some of them wer e not. The trial court, citing Ardisana , held that the Action Plan's "recommendations which led to the re visions of procedures for medical staff at the hospi tal" are n ot privileged because they constitute "ultimate decisions and action taken which were a direct result of the plan and a ctedupon by

the hospital without in [ sic ] any other formal processof impleme ntation." We respe ctfully

disagr ee with the trial court's analy sis. Instead,

we conclude that although the Action Plan was the Committee's "f inal report," it is protected from disclosur e under t he Act. In support of our conclusion, we reproduce the following leng thy, but informative, colloquy from Rich 's depo sition reg arding the sentin

el-eve nt proce ss: "Q. [Pl ainti ff's attor

ney :] So then what would typically happen at the sentinel event meetings or what is the next step after they have been convened? A. [Rich:] We con

vene the meeting s. The fir st meeti ng is mostly about

co nf id en ti al it y, mostly about the process, ca use analysis, all of

the explanatio n of what

this team involves b ecause

the core team is not

only the core members but it i s a ny ad ho c members that need to be pulled in in direct relationship to this case.Nos. 2-- 07--0717 & 2--07 --1272 c ons.

-18- So then the meeting would convene and we would then ha ve assignments and

then

we would reconvene and work on assignments and see if any furthe

r assignments are needed and it just kind of keeps going from there. Q. As many as a

re needed? A. As many as a

re needed. Q. It could be one. I

t could be a number? A. That' s corre ct. Q. Okay. Eve

rybody comes back having done their assig nments and then you talk again? A. To see

if any thing fu rther needs to be l ooked at. Q. Then w

hat? A. Sometimes a ssignme nts w ould come out of it that would really ha ve no relation ship to this case but maybe it ca m e up during the cause analy sis and the brain storm ing. May

be someth

ing cam e up that e

ven thoug h it had no direc t relationship,

core re lationship to the ca se it still c ould be an assignm ent. Q. Then w

hat? A. Okay. Then w e would continue to do this until we felt we had exhausted everything

or we had compl eted our ca use analysis and we had exhausted action plans or actio n item s that needed to be e xhau sted a s was b rought out i n the b rains tormi ng. Q. Then w

hat? A. Then the action plans would have i mp lementat ion datesand outco me expectat ions.Nos. 2-- 07--0717 & 2--07 --1272 c ons.

-19- Q. Who would

write the action pl ans? A. The te am. Q. Ok ay. A. The te am does them. Q. So may

be somebo dy w ould have a first dr aft, bring it to the

team? A. Actually the

first draft might come back two or three times. I t might come back, and then t here mig ht be some

taken of f and some

added. So

there mig

ht be rev isions, two or three revision s. Q. Until every

body agree s? A. Corre ct. Q. And then that's the final plan? A. That's the final plan and then, of course, we have outcomes management which then is follow-up. Q. So-- A. And usually we would have a meeting again or at lea st not necessarily a meeting but contact to be sure that the action items are being done

. Q. The final plan w ould have what, if a

nyt hing, wa s going

to be cha nged, r ight? A. Or recommended change s, uh-huh. Q. Recomm

endation s or sugg estions fo r chang es? A. Corre ct. Q. And that's in all of these meetings. There would always be a

final plan? A. Corre ct.Nos. 2-- 07--0717 & 2--07 --1272 c ons.

-20- Q. And then it would be implemented one way or another? A. Corre ct. Q. I understand. And now y ou have told us about the procedure? A. Or a decision why

it didn't need to be implemented." As this pas sage su gges ts, the ide as that eventuall y f ormed the Action Pla

n were d iscussed prior to being put in awritten format. Once the team formulated these idea s, they were incorporated into the Action Plan , and a decis ion wa s made on whi ch, if any, to im pleme nt. Th is cor respo nds wi th Ri ch's supplemental affidavit, in which she states that the Action Plan consists of "a summary

of all of the is sues consi dered by the [Committee] along with suggestions for risk reduction strategies." Alth ough Rich did not state at her deposition who decides which ideas are implement ed and who implement s the elements of the Action Plan, she related in her supplemental aff idavi t that the Committee "does not actually make any c

hanges in policy or practice but only provides sugg estions." Rich elabora

ted that th

e Action P

lan does n ot refle ct changes made as a resul t of th e Comm itte e's review. Rather, "others, including medical staff, *** decide if changes in policy or practice will be made." Thus, contrary

to the finding of the trial court, the evidence establishes that the Action Plan merely consists of

"recommendations or internal conclusions" that may or may not resul t in chang es. Accordi ng ly, this information is protected from disclosure under the Act. However , any actua l chang es, such as modifications to hospital policyor procedure, tha t were a dopted asa direc t result of the recommendations and internal conclusions in the Action Plan must be disclosed, as they constitute the "ultimate decisions made or actions tak en" as a r esult of th

e peer- review p

rocess. Ardisana , 342 I

ll. App. 3d

at 747. Ev en less f

ormal de cisions or

actions ta

ken here , such as t

h e issuance of staff reminders, the revision of a job description, and the ref ormatting of a rep ort form,Nos. 2-- 07--0717 & 2--07 --1272 c ons.

-21-

must be dis close d, as t he evi dence s ugge sts that they were taken as a direct result of the recommendations in the Action Plan. We emphasize, as did the court in Ardisana (342 Ill. App. 3d at

747), tha t the Act e

xpressly prote cts from d isclosure "[ a]ll *** reco mmendatio ns" of a peer-r eview c ommittee. (Emphasi s added.) 735 I

LCS 5/8 --2101 (

West 2004). Th e plain la nguag e of the A

ct does not distingu

ish betweenimplemented and unimplemented recommend ati ons. Plaintiff suggests that such an interpretation impermissibly broadens the scope of the Act. A ccordin g to plaintiff, it is not the "general category of 'recommendations' that is privileged, but rather recommendations 'used in the

course of inte rnal qua lity control or of medical study for the purpose of reducing morbidity and

mo rt al it y, or for improving patient care.' " Plaintiff contends that the ActionPlan was not "used in the course of int ernal qualit y control." Rather, plaintiff insists, the Action Plan was mandated by the JCAHO and prepared "after comp letion of t he peer review p

rocess. " Plaintif

f's posi tion is unpersuasive. A review

of the 33 d

ocumentswithheld

indicates that the Committee was concerned withhow to prevent the recurrence of a tragedy

similar to the one that befell decedent. I ndeed, Rich stated in her initial affidavit that the sentinel-event process was commenced in this ca se beca use decede nt's death was unexpected. She add ed that the purpose

of the process was to satisfy JCAHO require ments and "to provide internal quality control in order to reduce morbidity and mortality and to improve patient

care at the hospital." Rich also stated in her deposition that the issues with which the Committee d

ealt invo lv ed qu ality improvement. The idea s discussed by the Committee were then incorporated into the Action Plan. In turn, the Actio n Plan was used by others to implement procedures with the hope of preventing simi lar tr agedies in th e futu re. Th us, co ntrar y to plai ntiff 'sNos. 2-- 07--0717 & 2--07 --1272 c ons.

-22-

argume nt, the evidence establishes that the recommendations outlined in the Action Plan were for "internal quality c ontrol." In light of our finding that the Action Plan was used in the

course o f interna

l quality control, the fact that the ActionPlan may have been mandated by the JCAHO is a red he rring. Rich stated in her affidavit that defendant is accredited by the J CAHO . According to R ich, the J CAHO is "a non-prof it organizat ion whic h critiques and assesses all hospitals in the United States and determines whether they should be

accre dit ed." Rich further stated that, "[i]f the JCAHO became aware of a sentinel event occurring at a hospital and the hospital did not co nduct an acce ptable r oot cause analy sis and acti on plan, th e hospita l was at r isk for be

ing plac ed on an A

ccredit ation Watch, jeopardizing its accreditation." As the supreme c ourt noted in Niven :

"Withoutthe materials the [JCAHO] would not accredit Illinois hospitals, and thus there would be no such thing as an accredited hospital. The g r ant of co nfidentia

lity to 'accredited

hospitals' would therefore be a meaningle ss act. This court will not presume that the legislat ure intended a meaningless act." Niven , 109 Ill. 2d at 367. While the Niven court wa s speakin g in the context of documents in the possession of the JCAHO and sought b y the plaintif f, the sa me rati onale applies here. A bsent hosp ital compl

iance w ith JCAHO mandates regarding sentinel events, ther e would be no accredited hospitals in Illinois and there would be n o need fo

r the leg islature to have included

accredited hospitals in the Act's covera ge. This absurd result could not have been intended by the legislature, especially here, where

the Action Plan also was used in the course of internal quality control. Cf. Ekstrom , 197 Ill. App. 3d at 128-29 (holding that the Act did not exempt from discovery infor mation p ertainin g to comp liance w ithNos. 2-- 07--0717 & 2--07 --1272 c ons.

-23-

JCAHO guidelines and standards since the recor ds were not necessarily

the type of mater

ials to which the Act is applicable). To be sur e, the re are ca ses pr edati ng Ardisana that contain language that could be inter preted as holding that a peer-review c ommittee's "final report" is not protected f rom disclosure under the Act. However, Ardisana

clarified this point. Moreover, a closer examination of these cases r eveals that they are not incompatible with either our holding or Ardisana

. For instance, in Chicag o Trust Co. , 298 Ill. App. 3d at 406, the court determined that certain documents were not privileged under the Act. In t

he cours e of its dis cussion, t he court stated tha

t the Act " does not pr

otect ag ainst disclosure of the peer- revie w committee's recommendations after completion of the peer-review process." Chicago Trust Co. , 298 Ill. A pp. 3d at 4 05. Neve

rtheless , the pre cise hold

ing of th e case

was that the documents in question were not protected from disclosure under the A ct because they

were not initiated, created, prepared, or generated by

a peer-review committee. Chicago Trust Co. , 298 Ill. App. 3d at 405. More important, a review of the descriptions of the documents ordered produced in Chicago Trust Co. suggests that they were not the "recommendations and interna l conclusi ons" of the peer-review committee itself. Chicago Trust Co. , 298 Ill. App. 3d at 399 (describing the docum

ents in question). Rather, they we re the "ultimate decisions made or actions taken" in respon se to the p eer-r eview c ommittee' s a c tion plan. In fa ct, one of the docum

ents expressly refer

enced that

it was written in response to an "action plan," and the hospital conceded that the documents "represent the results" of the peer-review process. Chicago Trust Co. , 298 Ill. App. 3d at 399, 405. Therefore, Chicago Trust Co. actually supports our analy sis. It is also significant that the three cases ci te d b y Chicago Trust Co. for the proposition that the Act does not prote c t against disclosure of a peer-re view committee's recommendations (seeNos. 2-- 07--0717 & 2--07 --1272 c ons.

-24-

Richter v. Diamond , 108 I

ll. 2d 265, 269(1985); Willing , 176 I ll. App. 3d

737, 743; Gleason

v. St. Elizabeth M edi cal Center , 135 Ill. App. 3d 92, 95 (1985), overruled on other grounds , Reagan v. Searcy , 323 Ill. App. 3d 393 (2001)) predate the amendment

to the Act that added protection for such "recommendations." See Pub. A ct 8 9--3 93, §15, eff. Aug ust 20, 199 5 (amend

ing 735 I LCS 5/8--2101 (West 1994)). In any event, we do not interpret any of the cases relied o n by

the cour t in Ch icago Trust Co. to hold tha t recomme

ndations made by

a peer- review c ommitt ee are no t privileged. In Richter , the supreme court held that information relating to "the nature and extent of restric tions" imposed upon a physician' s privileges was not protected under the Act. Richter , 108 Ill. 2d at 269. In so holding, the court noted that " restrictions imposed by a hospital on a particular doct or's privileges to practice there may result from or be the consequence of

the p eer-r

evie w process , or of othe

r interna l methods o f monitorin g and revi ewing hospital activity ." (Emph asis

a dded.) Richter , 108 Ill. 2d at 269. Thus, Richter did not hold that recommendations made by a pe er-review committee

are not p rivileg ed. Rathe

r, it suppo

rts the pr oposition th at the " ulti mat e decisions made or actio ns taken," i.e., the restrictions placed on a phy sician in response to the peerreview process, are not privileged under the Act. Richter , 108 Ill. 2d

at 269. The Richter

court cited Gleason in support

of its holding. Richter , 108 Ill. 2d at 269-70. I n Gleason , the court held that the defendant hospital was required to respond to int errog ato ries seeking information rega rding the steps the hospital took to supervise a physician af ter dep osition s were taken in other malpractice ca ses filed against the phy sician. Gleason , 135 Ill. App. 3d at 94-95. In Gleason , there was no evidence that any of the infor

mation sought

by the pla inti ff's interrogatories involved the work product of any review committee. In fact, the cour t stated that the plaintiff

"does not seek inf

ormation o

r repor tsNos. 2-- 07--0717 & 2--07 --1272 c ons.

-25-

of the typ e p ro te ct ed by t he st at ut e, bu t, ra th er , c on ce rn s o nl y actions taken by t he hosp ital" as a result of the peer-review process. (Emphasis added.) Gleason , 135 I ll. App. 3d at 94-95. Therefore, Gleason does not hold that rec ommendations made by a peer-review committee are discover able. Nor do we interpre

t Willing as holding that recommendations made by a peer-review

committee are notprivileg ed. I

n that ca se, the c ourt cons idered w hether c ertain

documents, including a physici an's applications for appointment and letters of resignation or w ithdrawal, were protected from disclosure under the Act. I

n finding that the documents were no t s o privileg ed, the c ourt spec ifically determinedthat the physician' s applications for appointment and letters of resignation or withdrawal

were either "antecedent or subsequent to" but not part of the peer-review proce ss. Willing , 176 I ll. App. 3d at 743. The court stressed that "records and doc uments are protected

under the Act if they

are utilized as part of the peer-review process and not a s a result or consequence thereof." Willing , 176 Ill. App. 3d at 744. A more recent case, Green , 335 Ill . App. 3d 134 , addr essed wheth er docu ments from a nurse 's personnel file, inclu ding a suspension form, were privileged under the Act. The specific holding was that the suspension form was not "generate d for the use of a peer-review committee" and therefore

was not privileged. Green , 335 Ill. App. 3d at 137. However, citing to Chicago Trust Co. , the court alterna tively held that, even if the nurse's suspension was recommende d by a pee r-review committee, "sucha finding would not be protected from disclosure becaus e the re comme ndati ons an d find ings of a peer-re view commi ttee are not p rivileged und er the Act." Green , 335 Ill. App. 3d at 13 8

. Despite this language, Greendoes not support the proposition that a peer-revi ew commi ttee's "recommendations or internal conclusions" are not privilege d under the Act. The fact of the matter is that the nurse in Green was suspended. Green , 335 Ill. App. 3d at 135. Thus, the suspension formNos. 2-- 07--0717 & 2--07 --1272 c ons.

-26-

would not be pri vilege d under th e Act be cause it

represented the

"ultimate decisions made or actions taken." The langua ge used in th e a fo re me nt io ne d c as es , p ar ti cu la rl y Chicago Trust Co. and Green , has led to some confusion. However, as we discuss above, these ca ses ultima tely support Ardisana

as well as our holding in this case. That is, the plain language of the Actprotects from disclosure any recomm

endations made and internal conclusions reached by a peer-review committee, regardles s whether they are implemented. However, any actual changes, such as modifications to hospital po licy or proce dure, that are adopted as a direct re sult of the committee's recommendations and internal conclusi ons must be disclose d, as t

h ey constitute the " ultimate decisions made or actions taken" as a result of the peer-review proc ess. Accordingly , we reverse the trial court's order requiring defendant to produce t he Action Plan. In this case, the Action Plan consists only of "r ec om me nd at io ns an d i nt er na l c on cl us io ns ." Th er efor e, it is pr iv il eg ed in it s e nt ir et y. 3. Contempt We next address the status of the contempt order. "Requesting that a tria l court enter a cont empt order is a proper procedure to see k immediate appeal of a trial court's discove ry order

. " Ardisana , 342 Ill. App. 3d at 749. L ike the defendant in Ardisana , defend ant's decision in th is case notto produce the documents in question was not contemptuous of the trial court's authority . Rather, defendant's refusal to tender the requested documents was made in good faith and ba sed on sound legal arguments. We therefore vaca te the order finding defendant in contempt and imposing a $100 fine. B. Case No. 2--07--1272Nos. 2-- 07--0717 & 2--07 --1272 c ons.

-27-

CaseNo. 2--07--1272 concerns the three ques tions cer tified by the trial court. Th

e first question asks, " Is the applica bility of the Medical Studies Act privilege to a peer

review commi ttee's final report dependent upon 'implementation' of

tha t re por t by la ter, non pe er re vie w c omm itt ee s?" As our anal

ysi s with res pect to the issues in case No . 2--07- -0717 indi cates, t o the exten

t that t h e "final report" consists solely of "recommendations and internal conclusions" of the peer-review committee, it is irrel evant whether a non-pee r-revie w commi ttee later

"implements" one of the

recomme ndations. Alth ough the parties do not directly addr

ess the second and

third ce rtified q uestions in

their briefs, we address them. Question two asks, "I s the discoverability of a pee r review c ommi ttee's final report dependent on later use of the repor t by other, non peer

review departments?" Again, we emph asize

that, if the peer-review committee's f inal report consists solely of " recommendations and internal conclusions," it is not discover able eve n if the final repo

rt is disclosed to a non-peer-review committee. See 735 IL

CS 5/8--2102 (West 2004) ("The disclosure of any such information or data, whether proper, or i mp ro pe r, sh al l n ot wa iv e o r h av e a ny e ff ec t u po n i ts co nf

id en ti al it y,

no nd is co ve ra bi li ty, or

nonadmiss ibility "); Webb , 347 Ill. App. 3d at 825, quot ing Chicago Trust Co. , 298 Ill. App. 3d at 405 ("A document that 'was initiated, cre ated, prepared, or gene rated by apeerreview committee ' is privileged under the Act, 'even though it was la ter disseminated outside the peer-reviewprocess' ") . Whether it is "use d" by

such a co mmittee is a

gain irrelevant. However, any actual changes that were adopted a s a direct result of therecommendations and internal conclusions in the action plan must be disclosed, as they are the "ultimate decisions made or actions taken" as

a result of the peer -revie w proce ss. Ardisana , 342 Ill. App. 3d at 747. The third certified question asks, "If a late

r, non peer review committee c onsiders whether to take action as a result of a finalNos. 2-- 07--0717 & 2--07 --1272 c ons.

-28-

report, does the M edical St udie s Act protect disclosure of the final report they used or any othe

r materia ls that they consider

ed?" T he answer to this question is dependent upon the origin and contentsof the inf

ormation. As noted a

bove, an y in formatio n that is pr

ivilege d under th

e Act is protected from disclosure even if it is disseminated or used outside of the peer-review process. 735 IL CS 5/8--210 2 (West 200 4). Thus, th e "final report" and " other materials" would have to be

ex am in ed in di vi du al ly. II I. CONCL

USION For the reasons set

forth above, we reverse the ruling of the trial court requiring defendant to produce the medical journal articles and the Action Plan. Further, we vacate the order finding defendant in contem

pt and the accompa nying fine . We rema

nd this ca use for f urther p roceed ings. No. 2--07--0717, Reversed in part and vaca ted in part; cause remanded. No. 2--07--1272, Certified questions answered; cause remanded. BOWMAN and O'MAL

LEY, JJ., concur.