FIRST DIVISION

								March 24, 2003

No. 1-02-0201	

MARTISSA BERRY, Indiv.			)	Appeal from the

and as Mother and Next Friend		)	Circuit Court of

of Jalen Charles, a Minor,		)	Cook County

							)

		Plaintiffs-Appellees,	)

							)

v.							)	No. 99 L 13977

							)

WEST SUBURBAN HOSPITAL MEDICAL	)

CENTER, a Corporation,	 		)

							)

		Defendant-Appellant		)

							)

(Amy LaHood, Karla Clark,		)

and Bertha Lopez,				)	Honorable

							)	Michael J. Hogan,

		Defendants).			)	Judge Presiding.						

	JUSTICE SMITH delivered the opinion of the court:

	Defendant-appellant West Suburban Hospital Medical Center

(the Hospital) contends that a certain document plaintiffs

requested in discovery is protected by sections 8-2101 through 8- 2105 of the Code of Civil Procedure (735 ILCS 5/8-2101 et seq. (West 1998)) (hereinafter the Medical Studies Act or the Act).  The Hospital contends that (1) the trial court should not have ordered it to produce that document and (2) this court should

vacate the trial court's order finding the Hospital in contempt

for refusing to produce that document.  We affirm the trial

court's finding that the document should be produced but vacate the trial court's finding of contempt.

BACKGROUND

	Plaintiffs Martissa Berry and Jalen Charles filed a medical negligence complaint against defendants West Suburban Hospital

Medical Center, Amy LaHood, M.D., Karla Clark, M.D., and Bertha Lopez, M.D., arising from the obstetrical care defendants

provided to plaintiffs during labor and delivery.  Plaintiffs

alleged that on September 13, 1999, Berry was experiencing

contractions and was admitted to the Hospital but then discharged

with instructions to return when her contractions became more

frequent.  After Berry was readmitted to the Hospital on

September 14, 1999, an emergency caesarean section was performed,

and Charles was born with disabilities.

	Plaintiffs alleged that Charles's disabilities resulted from

defendants' negligence.  Specifically, plaintiffs alleged that

defendants negligently (1) discharged Berry on September 13,

1999, despite purported evidence of fetal distress; (2) failed to

timely administer intrapartum antibiotics to Charles; (3) failed

to monitor the progress of Berry's labor or Charles's well-being;

and (4) failed to timely perform the emergency caesarean section.

	During the course of discovery, plaintiffs requested

documents from the Hospital.  The Hospital disclosed the

existence of four documents within the scope of plaintiffs'

discovery request.  One of the four was a letter from Dr. Lopez to Vasant Acharya, M.D., chairperson of the Hospital's department

of obstetrics and gynecology, dated September 16, 1999 (September 16 letter).1  The Hospital, however, declined to provide the documents, contending that the documents were protected from

disclosure under the Act.  Plaintiffs filed a motion to compel

the documents and requested that the documents be made available

for an in camera inspection by the trial court.  Defendants filed in opposition a response that included the affidavits of Dr.

Lopez and Dr. Acharya.  Furthermore, defendants agreed to provide

the documents to the trial court under separate, sealed cover for

in camera inspection.

	The September 16 letter at issue on appeal began: "Dr.

Acharya:  This note is to inform you of the events that occurred

on the morning of September 14, 1999."  Dr. Lopez then made

factual statements relating to Berry's medical condition and the

sequence of events surrounding her treatment while at the

hospital.  The September 16 letter was not addressed to and did

not refer to any hospital investigatory committee.

	In her affidavit dated October 5, 2001, Dr. Lopez stated

that her purpose in writing the September 16 letter to Dr.

Acharya was to "bring potential issues to his attention

concerning quality improvement at the hospital for the purpose of

reducing morbidity and mortality."  According to Dr. Lopez, she

understood that the issues raised in her letter would then be

addressed by the Hospital's quality assurance committee.  Dr.

Lopez also understood that her letter to Dr. Acharya "would be

privileged since it addressed internal quality assurance issues

at the hospital."

	In his affidavit dated October 29, 2001, Dr. Acharya stated

that it was his duty to oversee quality assurance and improvement

issues within the obstetrics and gynecology department and to

oversee the department's quality management program.  The

program's purpose was to identify areas of care that needed

improvement and to reduce morbidity and mortality within the

department.  As part of the program, the department reviewed

various patient cases.  According to Dr. Acharya, to facilitate

the quality assurance process, department physicians and nurses

were responsible for informing Dr Acharya, either verbally or in

writing, of patient cases with potential quality assurance

issues.  Dr. Acharya stated that the "initial communication from

the physician and/or nurse begins the quality assurance process,"

whereupon the "patient's chart is reviewed and the case is discussed at a monthly morbidity and mortality (M&M) review

meeting" of the department.  Dr. Acharya stated that the

September 16 letter notified him of potential quality assurance

issues in the care of Berry and began the quality assurance

review of Berry's case.

	The record does not include a transcript of the hearing on

plaintiffs' motion to compel and does not indicate whether the

trial court conducted an in camera inspection of the disputed discovery documents.  On November 21, 2001, the trial court ordered the Hospital to produce the September 16 letter but

denied plaintiffs' motion to compel production of the other three

documents.  After the Hospital refused to produce the September

16 letter, the trial court held the Hospital in contempt and fined it $10.  This appeal followed.

ANALYSIS

	The Hospital contends on appeal that the September 16 letter

is privileged under the Act because it triggered the internal

quality control proceedings regarding Berry's case.  The Hospital

argues that the letter is privileged as a report or statement

used in the course of internal quality control.  We disagree.

The Medical Studies Act Privilege

	The Act provides:

		"All information, interviews, reports, statements,

memoranda, recommendations, letters of reference or other third party confidential assessments of a health

care practitioner's professional competence, or other

data of * * * committees of licensed or accredited

hospitals or their medical staffs, including Patient

Care Audit Committees, Medical Care Evaluation

Committees, 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 for the purpose of reducing

morbidity or mortality, or for improving patient care

or increasing organ and tissue donation, shall be

privileged, strictly confidential and shall be used

only for medical research, increasing organ and tissue

donation, the evaluation and improvement of quality

care, or granting, limiting or revoking staff

privileges or agreements for services * * *."  735 ILCS

5/8-2101 (West 1998).

	The Act further provides that such privileged material

"shall not be admissible as evidence, nor discoverable in any

action of any kind in any court or before any tribunal, board,

agency or person."  735 ILCS 5/8-2102 (West 1998).

	The burden of establishing the applicability of this

statutory privilege is on the party seeking to invoke the privilege.  Roach v. Springfield Clinic, 157 Ill. 2d 29, 41 (1993).  Whether the privilege applies is a matter of law, and

our standard of review is de novo.  Niven v. Siqueira, 109 Ill. 2d 357, 368 (1985).  However, the question of whether specific materials are part of an internal quality control or a medical

study is a factual question and will not be reversed on review

unless it is against the manifest weight of the evidence. 

Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 401 (1998).										

	The purpose of the Act is to ensure that members of the medical profession will effectively engage in self-evaluation of

their peers in the interest of improving hospital conditions and

patient care or reducing the rates of death and disease.  Roach, 157 Ill. 2d at 40.  The Act is premised on the belief that,

absent a peer-review privilege, physicians would be reluctant to

sit on peer-review committees and engage in candid evaluations of

their colleagues.  Roach, 157 Ill. 2d at 40.

	The Hospital argues that the September 16 letter is

privileged because Dr. Lopez wrote it to begin the quality review

process and understood its contents would be privileged and

confidential.  The Hospital asserts that the application of the

privilege to the September 16 letter is consistent with the Act's

purpose to encourage candid and voluntary peer-review programs to

improve hospital conditions and patient care and to reduce the rates of death and disease.  We disagree.

	Even if the September 16 letter notified Dr. Acharya on

behalf of the investigatory committee of a potential quality

control issue, the Act's privilege does not apply because the

September 16 letter was information of the Hospital's staff

rather than information of any committee, peer-review or

otherwise.  Roach, 157 Ill. 2d at 39 ("What the [Act] actually protects is not information of a hospital's medical staff, but

information of 'committees of licensed or accredited hospitals or their medical staffs * * *.'  (Emphasis added.)  [Citation.]"). 

According to the record, the earliest indication of any peer-

review committee meeting in the Berry case was February 11, 2000,

which was several months after Dr. Lopez wrote the September 16

letter.

	Our supreme court addressed a similar appeal in Roach, where the plaintiffs alleged that their child's birth defects resulted

from an unreasonable delay in providing the mother's anesthesia. 

157 Ill. 2d at 35-36.  A couple of days after the child's birth

but before the monthly meeting of the hospital's peer-review

committee, the hospital's chief anesthesiologist spoke with a

nurse and a nurse anesthetist about the cause of the alleged

delay.  Roach, 157 Ill. 2d at 36-38.  With respect to those conversations, the chief anesthesiologist stated in his

deposition that his specific purpose as the department chairperson had been "'[t]o determine if there was a problem, and

if there was a problem, to help find ways to improve things;

quality control.'"  Roach, 157 Ill. 2d at 39.  Following those conversations, the chief anesthesiologist "'made a report to the

Department of Anesthesia  meeting.'"  Roach, 157 Ill. 2d at 39.

	At trial, the Roach plaintiffs called as a witness the nurse anesthetist, who referred to the aforementioned conversation with

the chief anesthesiologist.  Roach, 157 Ill. 2d at 36.  The defense then objected, and the trial court sustained that objection and refused to allow the nurse anesthetist to testify

about his conversation with the chief anesthesiologist, finding

that it was privileged under the Act.  Roach, 157 Ill. 2d at 37.  On appeal, our supreme court held that the trial court

erroneously excluded that evidence.  Roach, 157 Ill. 2d at 32.

	The Roach court held that the information obtained by the chief anesthesiologist (1) was not privileged under the Act

because it was not "'information of' any committee, peer-review or otherwise" and (2) "was not transformed into 'information of'"

a department or committee merely because the chief

anesthesiologist reported the incident to a peer-review body

sometime later.  (Emphasis in original.)  Roach, 157 Ill. 2d at 40-41.  The Roach court reasoned that to hold otherwise would completely subvert the purpose of the Act to promote improved

patient care because hospitals could then foreclose disclosure of virtually all adverse facts known to its medical staff.  157 Ill.

2d at 41.

	Because the information sought in Roach was not information of any committee, our supreme court found it unnecessary to

definitively resolve the issue of whether a hospital's committee

must be involved in the peer-review process before the privilege

will attach.  Roach, 157 Ill. 2d at 40.  The Roach court noted, however, that the legislative debate and case law concerning the Act suggested that when the committee is comprised of a

hospital's medical staff, "the committee must be involved in the peer-review process before the privilege will attach."  (Emphasis added.)  Roach, 157 Ill. 2d at 40.

	Subsequently, this court interpreted the Act to limit the

privilege to the mechanisms of the peer-review process--i.e., information initiated, created, prepared or generated by a peer-

review committee, including information gathering and

deliberation leading to the committee's ultimate decision. 

Chicago Trust Co., 298 Ill. App. 3d at 402 (reports prepared shortly after the incident and used by the oversight committee to

review that incident were not privileged where the reports were

not requested by–-and thus did not belong to-–a committee engaged in the peer-review process); Grandi v. Shah, 261 Ill. App. 3d 551, 556 (1994) (even assuming that a hospital administrator's conversations with a doctor and nurse to investigate a patient complaint were part of the hospital's internal review process,

those conversations were not protected because the administrator

was not acting on behalf of any peer-review committee).

	Here, the Hospital attempts to distinguish Roach by suggesting that the September 16 letter marked the beginning of

the peer-review process–-and thus was part of that process--

because Dr. Lopez wrote the letter in response to established

Hospital policy that staff was responsible for notifying the

quality control committee of potential issues.

	In Roach, the defendant hospital made a similar argument–- i.e., that the chief anesthesiologist's conversations with two medical staff members were tantamount to an investigation by a

committee and thus were part of the peer-review process.  The Roach court, however, rejected that argument, noting that the chief anesthesiologist spoke to those staff members before the department was notified of the problem; that there was no legal

principle warranting imputing the chief anesthesiologist's actions to the department simply because he served as its

chairperson; that the department, as a body, was charged with the

responsibility for conducting medical reviews at monthly

meetings; and that the hospital's bylaws contained no provision

conferring on the chairperson or any individual the authority to

act for the department.  Roach, 157 Ill. 2d at 42-43.

	For these same reasons, we reject the Hospital's assertion that Dr. Lopez's September 16 letter was protected as part of the

peer-review process.  Clearly, Dr. Lopez, who had no similar

position of authority as the chief anesthesiologist in Roach, cannot successfully argue that she was acting on behalf of the

department or a committee to investigate the Berry case where the

Hospital concedes that the department was not aware of the

problem until Dr. Lopez's September 16 notification and where the

peer-review committee met several months after Dr. Lopez wrote

the September 16 letter.

	The Hospital also contends that Roach is not relevant, arguing that Roach (1) did not address a writing submitted to a peer-review committee to initiate its proceedings, and (2) merely

stands for the proposition that information does not become

privileged simply because a written report containing it might be

privileged.  The application of the privilege under the Act is not based on whether the information is verbal or written; under

the express terms of the statute, the privilege, where it exists,

extends to "[a]ll information, interviews, reports, statements,

memoranda * * * or other data."  735 ILCS 5/8-2101 (West 1998). 

Moreover, the Hospital ignores the Roach court's holding that the Act does not protect information of a hospital's medical staff,

but information of its committees.  The Hospital also ignores the

Roach court's extensive discussion and rejection of the argument that an investigation initiated and conducted by a department chairperson was tantamount to an investigation by a committee of

that department.

	The September 16 letter was not initiated, created or generated by a peer-review committee.  The letter was written

prior to the commencement of the peer-review process as a means

to bring to Dr. Acharya's attention a potential quality issue. 

Based on our careful review of the record, we find that the trial court properly ordered the Hospital to produce the September 16

letter.

Contempt

	As a final matter, we address the trial court's contempt

order.  Requesting the trial court to enter a contempt order is a

proper procedure to seek immediate appeal of a trial court's

discovery order.  Green v. Lake Forest Hospital, 335 Ill. App. 3d 134, 139 (2002); Buckman v. Columbus-Cabrini Medical Center, 272 Ill. App. 3d 1060, 1067 (1995).  In this case, we find that the

Hospital's decision not to produce the September 16 letter was

made in good faith.  The Hospital was not contemptuous of the

trial court's authority but merely sought appellate review of its

unsuccessful assertion of privilege.  Green, 335 Ill. App. 3d at 139.  We therefore vacate the trial court's contempt order and

fine.  Chicago Trust Co., 298 Ill. App. 3d at396, 410 (1998).

CONCLUSION

	The trial court correctly overruled the Hospital's objections to producing the September 16 letter.  The contempt

order is vacated.  We return the sealed document to the trial

court for proceedings consistent with this order.

	Affirmed in part and, vacated in part; cause and remanded.

	GORDON, P.J. and McNULTY, J., concur.