Illinois Appellate Court Affirms Trial Court’s Order for Hospital to Produce Documents Not Protected by the Medical Studies Act

The defendant, Edward Hospital, claimed that certain of its internal documents were confidential and that the Circuit Court of DuPage County, Ill., should not have ordered it to produce them during the discovery in a lawsuit for a medical malpractice and wrongful death. Edward Hospital insisted that the Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2014)) protects those documents from disclosure. The Illinois Appellate Court affirmed, holding that the trial judge was correct in that all documents at issue must be produced.

On Oct. 13, 2013, the plaintiff Abigail Kiersten Grosshuesch was admitted to Edward Hospital 30 weeks pregnant. Her baby, Isabella Kitsen Zormelo, was born the same day. Baby Isabella suffered from numerous medical issues, including necrotizing enterocolitis. Unfortunately, Baby Isabella died on Nov. 1, 2013.

In December 2013, Grosshuesch contacted Edward Hospital’s patient advocate and expressed concern about the care and treatment rendered to her and Isabella. Pursuant to Edward Hospital’s medical staff quality committee (MSQC) charter and its peer review policy (both enacted in 2008), the plaintiff’s concern in conjunction with Isabella’s death constituted “review indicators” resulting in a referral to the MSQC.

Nancy Rosenbery, in her capacity as the MSQC liaison, consulted with expert peer reviewers – each a member of the hospital’s medical staff with the same specialty as the physician whose care was being reviewed. One peer reviewer reviewed and commented on the obstetrical care given to Grosshuesch, and one peer reviewer commented on the neonatal care given to Isabella. Rosenbery then entered her notes on each peer reviewers’ input, including the reviewer’s conclusions and/or requests for additional information, into an electronic database on Feb. 24 and Feb. 25, 2014. The MSQC considered these notes when it met on March 5 and April 2, 2014.

On Oct. 31, 2014, Grosshuesch filed a lawsuit against Edward Hospital and other hospital related entities including physicians claiming medical negligence and wrongful death of her baby. A second amended complaint was filed on Oct. 21, 2015, which included two counts. One count was for wrongful death for Isabella’s death and the other, count two, was a survival action seeking recovery for injuries sustained by Isabella between the date of her birth and the date of her death.

Subsequently, plaintiff issued written discovery to Edward Hospital seeking all documents regarding the care of Isabella. Edward Hospital refused to disclose the notes, maintaining that they were privileged under the Medical Studies Act. The plaintiff filed a motion to compel and in-camera inspection of the allegedly privileged documents.

The trial court conducted a hearing on the plaintiff’s motion to compel production of these documents. Edward Hospital argued that the purpose of the policy, MSQC, was to improve the overall quality of care rendered and to reduce morbidity and mortality. Edward Hospital argued that the information and conclusions resulting from the peer-review investigation, which were later provided to the MSQC for its consideration and evaluation, consistent with the peer review policy – were part of the internal quality-control process and therefore privileged.

At the close of the hearing, the trial judge ruled that the notes Rosenbery had authored which contained information acquired before the MSQC met, must be produced because the affidavit that the Edward Hospital counsel submitted was insufficient to raise a privilege. The trial judge explained that there was nothing in the affidavit showing when the MSQC requested the investigation to be handled or which member of the MSQC requested the investigation to begin. The trial judge further found that the affidavit did not establish that the MSQC was engaged in the peer-review process for this occurrence prior to the March 2014 meeting.

Edward Hospital argued that because the peer-review policy authorized the investigation, everything that was discovered through that investigation is privileged under the Medical Studies Act. The appeals panel stated that whether a Medical Studies Act’s privilege applies is a question of law, which is reviewed de novo; however, whether specific materials are part of an internal quality-control process “is a factual question,” on which the defendant bears the burden. Berry v. West Suburban Hospital Medical Center, 338 Ill.App.3d 49, 53-54 (2003).

The appeals panel in this case found that Edward Hospital’s argument is contrary to over 20 years of precedent establishing that the Medical Studies Act cannot be used to conceal relevant evidence that was created before a quality-assurance committee or its designee authorized an investigation into a specific incident. Roach v. Springfield Clinic, 158 Ill.2d 29 (1993).

Edward Hospital tried to distinguish the cases supporting production of documents in discovery but failed. Furthermore, the court found that the hospital’s reliance on the cases it cited were misplaced.

Accordingly, the decision of the Circuit Court of DuPage County requiring Edward Hospital to produce the disputed documents is affirmed. The contempt order entered against the hospital for willfully refusing to turn over and produce those documents is vacated. The case was sent back to the trial court for further proceedings consistent with this opinion. In other words, the appeals panel affirmed in part and vacated in part.

Grosshuesch v. Edward Hospital, et al., 2017 IL App (2d) 160972 (Sept. 5, 2017).

Kreisman Law Offices has been successfully handling birth trauma injury lawsuits, wrongful death cases, labor and delivery negligence lawsuits and traumatic brain injury cases for individuals, families and the loved ones who have been injured, harmed or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Berwyn, Maywood, Elmhurst, Oakbrook, Oakbrook Terrace, Clarendon Hills, Willowbrook, Naperville, Chicago (Albany Park, Andersonville, Archer Heights, Lincoln Square, North Park, Rosehill, Rogers Park, Ravenswood Manor), Glencoe, Glenview, Geneva, Lisle, Hinsdale, Fox River Grove and Round Lake, Ill.