SECOND DIVISION

								fFebrFEBRUARY 6, 2001

No. 1-00-1123

KENYA ROUNDS, Special Adm'r of		)	Appeal from the

Estate of Deonte Warren, Deceased,		)	Circuit Court of

								)	Cook County

	Plaintiff-Appellee,				)		

								)	

		v.						)

								)	97 L 7536

JACKSON PARK HOSPITAL AND MEDICAL		)	

CENTER, GREGORY SARIC, 				)	

USHARI KOGANTI, CHEN WANG, 			)	

and LEOPOLDO JURADO,				)	The Honorable

								)	Kathy Flanagan,

	Defendants-Appellants.			)	Judge Presiding.

	JUSTICE COUSINS delivered the opinion of the court:

	Defendant-appellant, Jackson Park Hospital (JPH), appeals

from the trial court's order compelling it to disclose certain

documents and its order finding JPH in contempt of court for

failing to turn over those documents to the plaintiff-appellee,

Kenya Rounds, special administrator of the estate of Deonte

Warren, deceased.  The issues presented for review are:  (1)

whether the trial court erred in compelling the production of the

documents where the defendant claims they were generated within

the scope of the attorney-client privilege; and (2) whether the

trial court erred in finding JPH in contempt of court and

imposing a fine of $100 for its good-faith refusal to turn over

documents it believed to be privileged. 	

	We affirm the discovery order and direct the trial court to

vacate the contempt order.

BACKGROUND

	Plaintiff, Kenya Rounds, sought to recover damages for the alleged medical malpractice of JPH and other defendants arising

out of the delivery of her fetus, Deonte Warren, on May 28, 1996. 

Plaintiff alleged that:  JPH was negligent in discharging Rounds

from JPH after she presented the clinical signs and symptoms of

placental abruption; JPH failed to inform the attending

obstetrical physician of Rounds' signs and symptoms before she

was discharged and transferred to St. Bernard Hospital; JPH

failed to perform an emergency cesarean section on Rounds; JPH

failed to utilize available obstetrical techniques which would

have resulted in Deonte's delivery before his death; and JPH

failed to appropriately respond to the clinical signs of vaginal

bleeding, a firm uterus, and Deonte's fetal status.  Rounds

alleged that, as a result of JPH's negligence, Deonte suffered

injuries that resulted in his death.

	In its answer, JPH admitted that it provided nursing and

medical treatment to Rounds and that Drs. Saric and Koganti

provided treatment to Rounds on May 28, 1996.  JPH denied that

Rounds was assessed with vaginal bleeding, leaking amniotic

fluid, and had a firm uterus.  JPH further denied that either

Saric or Koganti ordered and/or allowed Rounds to be discharged

from JPH and transferred to St. Bernard.  Finally, JPH denied all

allegations of wrongdoing and negligence. 	

	In its response to Rounds' request for production of

documents, JPH claims that it produced more than 350 pages of documents.  In response to Rounds' request for documents

containing the "opinions, theories, conclusions, or estimates"

regarding Rounds' physical condition and Deonte's birth, JPH

responded that it had certain nursing incident reports and

another document prepared by nurse Edith Nwankwo regarding the

sequence of events of Rounds' transfer from JPH to St. Bernard's

Hospital.  JPH asserted that these documents were made in

anticipation of litigation and were otherwise protected by

section 8-2101 of the Code of Civil Procedure (the Medical

Studies Act) (735 ILCS 5/8-2101) (West 1998)) and, therefore,

withheld them from disclosure pursuant to the attorney-client

privilege and the Medical Studies Act.

	On January 9, 1998, JPH was granted leave to file its

response to Rounds' first supplemental request for production. 

JPH claims that it provided to Rounds more than 290 additional

pages of documents, excluding the nurses' incident reports and

Nwankwo's statement.  In December of 1999, nurse Frye was

deposed.  During Frye's deposition, the following was elicited by

plaintiff's counsel:

	"Q. Did you fill out an incident report?

	A. Yes, I did.

	Q. Why?

	A. Because I was instructed to.

	Q. Who instructed you to?

	A. My manager.

	Q. Who was your manager?

	A. Andrea Howard.

	* * *

	Q. When did she instruct you to fill out an incident report?

	A. I don't remember.

	Q. Was it that same day?

	A. I don't remember."

	On February 10, 2000, Rounds filed a motion to compel

production of the withheld documents.  The trial court ordered

JPH to provide a privilege log for all documents withheld from

discovery and to provide copies of such documents for an in camera inspection.  On February 21, 2000, nurse Nwankwo was deposed. 

	On February 23, 2000, JPH presented its privilege log, which

provided:

	   "1. Jackson Park Hospital and Medical Center Nursing

Service Department-Special Report authored by Lavelle Frye,

R.N. Privilege asserted:  Attorney-client Privilege and

Medical Studies Act.

	   2. Jackson Park Hospital and Medical Center Nursing

Service Department-Special Report authored by Andrea Howard,

R.N.  Privilege asserted:  Attorney-client Privilege and

Medical Studies Act.

	   3. Jackson Park Hospital and Medical Center Nursing

Service Department-Special Report authored by Edith Nwankwo, R.N.  Privilege asserted:  Attorney-client Privilege and

Medical Studies Act.

	   4. Statement of Edith Nwankwo, R.N. regarding sequence of

transfer of events.  Privilege asserted:  Attorney-client

Privilege and Medical Studies Act."

	On February 25, 2000, plaintiff delivered to the trial court

a letter addressing the inadequacy of the privilege log.  On

February 28, 2000, the court ruled that JPH failed to establish

that the documents were protected under the attorney-client

privilege.  The court also held that the Medical Studies Act did

not protect the documents from disclosure.  The court stated:

	   "With regard to the statements of these four individuals,

there is no establishment of number one, whether these

statements were made to an attorney; number two, if they

were, who is the attorney; number three, in what capacity

the attorney was acting if and when the statements were made

to an attorney; number four, for what purpose the statements

were made to the attorney; number five, there is no showing

that the statements or reports remain confidential between

the attorney purportedly to whom they were made and the

maker of these statements or reports, meaning all four RNs;

number six, there is no showing that any of these RNs

occupied a position of within the hospital control grouproom.  They

are not shown to have an advisory role.  They are not shown

to be in a position of top management that would not normally make a decision without their opinion or advice.

	   So none of the elements of the attorney/client privilege

have been established with regard to these reports, and the

objection or assertion of privilege on behalf of Jackson

Park Hospital to prevent disclosure based on attorney/client

privilege is overruled, and the plaintiff's motion to compel

on this basis is granted.

* * *

	   If a document is created in the normal course of a

hospital's business or for rendering legal opinions or to

weigh potential liability risks or for later corrective

action by the hospital, that information is not privileged

under medical studies ***. 

* * *

	   It is like a standard incident report that is apparently

used at the hospital for anything unusual that might occur.

*** There has been no establishment of any attorney/client

privilege such that these reports would be privileged from

disclosure."

	JPH was ordered to turn over the documents on or before

March 6, 2000.  On March 17, 2000, the trial court heard

arguments on JPH's motion to reconsider.  The trial court ruled

that Nwankwo's affidavit did not establish the requisite elements

of the attorney-client relationship and ordered JPH to provide a

copy of Nwankwo's statement to Rounds.  JPH declined to do so and the trial court found JPH in contempt of court and imposed a $100

fine against it.  The trial court denied JPH's request to stay

all discovery proceedings pending its appeal.

ANALYSIS 

Standard of Review

	A trial court is vested with the inherent power to enforce

its orders and preserve its dignity by the use of contempt

proceedings.  People v. Warren, 173 Ill. 2d 348, 368, 671 N.E.2d 700 (1996).  Where an individual appeals a contempt judgment

imposed for violating a discovery order, that discovery order is

also subject to review.  Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 216, 642 N.E.2d 1264 (1994).  The standard of review of a discovery violation is whether the

trial court abused its discretion.  People v. Weaver, 92 Ill. 2d 545, 559, 442 N.E.2d 255 (1982).  

	I

	JPH asserts that the trial court erred in failing to find

that nurse Nwankwo's statement and the other nurses' special

reports were protected from disclosure by the attorney-client

privilege.  JPH further contends that the statements were

prepared by JPH employees for JPH and, therefore, fall under the

insurer-insured privilege encompassed by the attorney-client

privilege.  Alternatively, JPH also contends that, under the

control group analysis, Nwankwo's statement and the other nurses'

special reports are privileged.  Lastly, JPH argues that the content of the documents compels the conclusion that they are

privileged.

	Rounds responds that the trial court correctly ruled in

compelling the production of the documents, where JPH failed to

establish that the documents were cloaked by the attorney-client

privilege.  Rounds' maintains that the requisite facts to

establish attorney-client privilege were not alleged by JPH; the

claim of privilege fails under the control group analysis; and

the insurer-insured privilege encompassed by the privilege does

not apply to the documents prepared by the nursing staff simply

because JPH is self-insured.

	Illinois Supreme Court Rule 201(b)(2) provides, in pertinent

part:

	   "All matters that are privileged against disclosure on

the trial, including privileged communications between a

party or his agent and the attorney for the party, are

privileged against disclosure through any discovery

procedure.  Material prepared by or for a party in

preparation for trial is subject to discovery only if it

does not contain or disclose the theories, mental

impressions, or litigation plans of the party's attorney." 

166 Ill. 2d R. 201(b)(2).

	The attorney-client privilege exists for the purpose of

encouraging and promoting the full and frank consultation between

a client and his or her legal advisor by removing the fear of compelled disclosure of information.  Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 117-18, 432 N.E.2d 250 (1982).  The party claiming the attorney-client privilege bears the burden

of presenting factual evidence which establishes the privilege. 

Cox v. Yellow Cab Co., 61 Ill. 2d 416, 419-20, 337 N.E.2d 15 (1975).  To be entitled to the protection of the attorney-client

privilege, a claimant must show that the statement originated in

confidence that it would not be disclosed, was made to an

attorney acting in his legal capacity for the purpose of securing

legal advice or services, and remained confidential.  Hyams v. Evanston Hospital, 225 Ill. App. 3d 253, 257-58, 587 N.E.2d 1127 (1992).  

	In the instant case, nurse Nwankwo's undated, unnotarized

affidavit states: 

	   "1. I was a registered nurse on duty at Jackson Park

Hospital on May 28, 1996.  I provided certain care and

treatment to Plaintiff, Kenya Rounds.  After learning the

outcome of the delivery of a stillborn infant by Ms. Rounds

at St. Bernard Hospital, I believed that this matter would

likely result in litigation.  Accordingly, I prepared and

had notarized a document reflecting my involvement in the

care and treatment of Kenya Rounds. 

	   2. I prepared the document in question in anticipation of

litigation so that, once suit was filed, I would be able to

provide this document as a communication to those attorneys assigned to represent me and/or Jackson Park Hospital."  

	Despite this affidavit, JPH has not presented any facts that

would indicate to this court that the report was anything more

than the result of a mere prediction by nurse Nwankwo.  The

record does not indicate to this court that the report created by

Nwankwo originated in confidence, that it would not be disclosed,

was made to an attorney for legal advice or services, or remained

confidential for those purposes. 

	JPH relies on Buckman v. Columbus-Cabrini Medical Center, 272 Ill. App. 3d 1060, 1067, 651 N.E.2d 767 (1995).  That case is

distinguishable from the instant case.  In Buckman, the hospital appealed from orders entered by the trial requiring production of

memoranda arising out of meetings between an attorney and a nurse

who was employed by the hospital on a part-time basis and who was

subpoenaed by plaintiff.  In that case, the record revealed that

when the nurse was subpoenaed for a deposition in connection with

the litigation, she went to her employer which, in turn, directed

her to the contemnor-appellant.  Buckman, 272 Ill. App. 3d at 1066.  She subsequently met with contemnor-appellant, who later

appeared on her behalf at her deposition.  Buckman, 272 Ill. App. 3d at 1066.  Plaintiff filed a motion to compel the hospital to

produce those interview notes reasoning that the nurse was not a

party to the litigation and not a member of the control group. 

Buckman, 272 Ill. App. 3d at 1062.  The hospital responded that such notes were relevant communications made while the nurse was securing legal advice.  Buckman, 272 Ill. App. 3d at 1063.  The hospital also maintained that, as a self-insurer, it was duty

bound to defend any lawsuit against the nurse and that the

privilege extended to communications between the insured and the

insurer.  Buckman, 272 Ill. App. 3d at 1062.  The interview notes and a list of those documents for which the privilege was claimed

were submitted to the trial court for an in camera inspection.  Buckman, 272 Ill. App. 3d at 1063.  The trial court held that the notes were not privileged communications and ordered their

production.  Buckman, 272 Ill. App. 3d at 1063.  The attorney refused to produce the notes and the court found the attorney in

contempt for refusing to comply with the discovery order. 

Buckman, 272 Ill. App. 3d at 1063-64.  

	The issues presented for review in Buckman were whether the trial court erred in granting plaintiff's motion to compel the

production of interview notes and whether the contempt finding

should be vacated.  Buckman, 272 Ill. App. 3d at 1061.  The appellate court answered in the affirmative and directed the

trial court to vacate the contempt order.  Buckman, 272 Ill. App. 3d at 1066-67.  In Buckman, the record established the existence of an attorney-client relationship between contemnor-appellant

and the nurse when the communications were made.  Buckman, 272 Ill. App. 3d at 1066.  The appellate court noted, "These

circumstances establish that [the nurse] received legal advice

and services.  As such, we conclude that the trial court erred in determining that the relevant communications between contemnor-

appellant and [the nurse] are not protected by the attorney-

client privilege."  Buckman, 272 Ill. App. 3d at 1066.  

	In the instant case, however, there is no indication from

the record that the documents were created subsequent to the

lawsuit or at the direction of an attorney.  In fact, the reports

at issue were created approximately at the time of decedent's

death as "special reports" normally used for "unusual" events. 

Records prepared in anticipation of litigation are not records

"made in the regular course of business."  Kelly v. HCI Heinz Construction Co., 282 Ill. App. 3d 36, 41, 668 N.E.2d 596 (1996).  There had not been an attorney-client relationship created prior

to the creation of the reports.

	JPH also relies on People v. Ryan, 30 Ill. 2d 456, 197 N.E.2d 15 (1964), and Buckman to support its contention that the documents fall under the cloak of attorney-client privilege

because JPH is self-insured.  In Ryan, the Illinois Supreme Court held that the statement given by the insured, which was taken by

an insurance company investigator following an automobile

collision, retained its privileged character.  Ryan, 30 Ill. 2d at 461.  While the Buckman court did acknowledge the hospital's argument that the attorney-client privilege applied to

communications between the insured and the insurer, it did not

reach this issue in the decision.  However, because JPH failed to

raise this argument prior to this appeal, it is deemed waived and this court will not address it.  See  People v. Del Percio, 105 Ill. 2d 372, 380, 475 N.E.2d 528 (1985).

	JPH also contends that Nwankwo was a part of the control

group managing Rounds' care and is therefore protected by the

privilege.  JPH, again, relies on Buckman.  Under the control group analysis, the only communications that are ordinarily held

privileged under this test are those made by top management who

have the ability to make a final decision, rather than those

employees whose positions are merely advisory.  Consolidation Coal Co., 89 Ill. 2d at 120.  The test focuses on the status of the employee within the hierarchy of the corporation. 

Consolidation Coal Co., 89 Ill. 2d at 114.  An employee's communications receive the protection of the attorney-client

privilege when the claimant demonstrates that:  (1) the employee

is in an advisory role to top management, such that the top

management would normally not make a decision in the employee's

particular area of expertise without the employee's advice; and

(2) that opinion does in fact form the basis of the final

decision by those with actual authority.  Archer Daniels Midland Co. v. Koppers Co., 138 Ill. App. 3d 276, 279, 485 N.E.2d 1301 (1985).  

	In the instant case, JPH has not demonstrated that Nwankwo

or the other nurses had advisory roles to top management and that

their opinions did in fact form the basis of the final decision

by those with actual authority.  "[T]he concern is not on what was said, but on who said what."  Hyams, 225 Ill. App. 3d at 258.  

	JPH further contends that whether the privilege applies

bears on the content of the documents.  JPH maintains that, "on

the face of these documents, then, they are privileged and have

the intent of attorney-client communications."  The documents

contain primarily factual statements relating to Rounds' medical

condition on May 28, 1996, and the events surrounding her

treatment while at JPH.  If this court would allow documents

merely labeled as a "special reports" to fall under the umbrella

of documents prepared in anticipation of litigation, it would

potentially "insulate so much material from the truth-seeking

process" that justice would no longer be served.  Consolidation Coal Co., 89 Ill. 2d at 118.

	JPH next contends that it should have been given the

opportunity to amend its privilege log.  We hold that, while

Supreme Court Rule 201(n) requires that the log describe "the

nature of the documents *** not produced or disclosed" and "the

exact privilege which is being claimed," the burden was on JPH to

establish why the privilege was properly invoked.  166 Ill. 2d R.

201(n).  Knowing that the trial judge denied the submission of

briefs on these issues, JPH should have used the log or even its

petition to reconsider as its opportunity to demonstrate its

factual considerations for invoking the attorney-client

privilege.  

	Therefore, the trial court's order to compel production of

certain documents is affirmed and JPH's request to amend the

privilege log is denied. 

II

	JPH's final major contention is that the trial court's

contempt order should be vacated because JPH's failure to comply

with the court's discovery order was made in good faith and was

not contemptuous of the trial court's authority.  Rounds responds

that the trial court ruled correctly in finding defendant in

contempt of court and imposing a fine for JPH's refusal to turn

over the documents at issue.

	In Illinois, requesting the trial court to enter a contempt

order is a proper procedure to test, on appeal, a trial court's

discovery order.  Buckman, 272 Ill. App. 3d at 1067.  JPH's refusal to produce was made in good faith and was not

contemptuous of the court's authority.  See Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 410, 698 N.E.2d 641 (1998).  Accordingly, we direct the trial court to vacate the

contempt order.

	For the foregoing reasons, we hold that the trial court's

order to compel production of certain documents is affirmed, and

the trial court's order finding JPH in contempt is vacated. 

	Affirmed; contempt order vacated.

	CAHILL, P.J., a and McBRIDE, jJ,., concur.