FIRST DIVISION
March 24, 2003

JUSTICE SMITH delivered the opinion of the court:

Defendant-appellant West Suburban Hospital Medical Center(the Hospital) contends that a certain document plaintiffsrequested 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 haveordered it to produce that document and (2) this court shouldvacate the trial court's order finding the Hospital in contemptfor refusing to produce that document. We affirm the trialcourt's finding that the document should be produced but vacatethe trial court's finding of contempt.

BACKGROUND

Plaintiffs Martissa Berry and Jalen Charles filed a medicalnegligence complaint against defendants West Suburban HospitalMedical Center, Amy LaHood, M.D., Karla Clark, M.D., and BerthaLopez, M.D., arising from the obstetrical care defendantsprovided to plaintiffs during labor and delivery. Plaintiffsalleged that on September 13, 1999, Berry was experiencingcontractions and was admitted to the Hospital but then dischargedwith instructions to return when her contractions became morefrequent. After Berry was readmitted to the Hospital onSeptember 14, 1999, an emergency caesarean section was performed,and Charles was born with disabilities.

Plaintiffs alleged that Charles's disabilities resulted fromdefendants' negligence. Specifically, plaintiffs alleged thatdefendants negligently (1) discharged Berry on September 13,1999, despite purported evidence of fetal distress; (2) failed totimely administer intrapartum antibiotics to Charles; (3) failedto 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 requesteddocuments from the Hospital. The Hospital disclosed theexistence of four documents within the scope of plaintiffs'discovery request. One of the four was a letter from Dr. Lopezto Vasant Acharya, M.D., chairperson of the Hospital's departmentof obstetrics and gynecology, dated September 16, 1999 (September16 letter).⁽¹⁾ The Hospital, however, declined to provide thedocuments, contending that the documents were protected fromdisclosure under the Act. Plaintiffs filed a motion to compelthe documents and requested that the documents be made availablefor an in camera inspection by the trial court. Defendants filedin opposition a response that included the affidavits of Dr.Lopez and Dr. Acharya. Furthermore, defendants agreed to providethe documents to the trial court under separate, sealed cover forin camera inspection.

The September 16 letter at issue on appeal began: "Dr.Acharya: This note is to inform you of the events that occurredon the morning of September 14, 1999." Dr. Lopez then madefactual statements relating to Berry's medical condition and thesequence of events surrounding her treatment while at thehospital. The September 16 letter was not addressed to and didnot refer to any hospital investigatory committee.

In her affidavit dated October 5, 2001, Dr. Lopez statedthat her purpose in writing the September 16 letter to Dr.Acharya was to "bring potential issues to his attentionconcerning quality improvement at the hospital for the purpose ofreducing morbidity and mortality." According to Dr. Lopez, sheunderstood that the issues raised in her letter would then beaddressed by the Hospital's quality assurance committee. Dr.Lopez also understood that her letter to Dr. Acharya "would beprivileged since it addressed internal quality assurance issuesat the hospital."

In his affidavit dated October 29, 2001, Dr. Acharya statedthat it was his duty to oversee quality assurance and improvementissues within the obstetrics and gynecology department and tooversee the department's quality management program. Theprogram's purpose was to identify areas of care that neededimprovement and to reduce morbidity and mortality within thedepartment. As part of the program, the department reviewedvarious patient cases. According to Dr. Acharya, to facilitatethe quality assurance process, department physicians and nurseswere responsible for informing Dr Acharya, either verbally or inwriting, of patient cases with potential quality assuranceissues. Dr. Acharya stated that the "initial communication fromthe physician and/or nurse begins the quality assurance process,"whereupon the "patient's chart is reviewed and the case isdiscussed at a monthly morbidity and mortality (M&M) reviewmeeting" of the department. Dr. Acharya stated that theSeptember 16 letter notified him of potential quality assuranceissues in the care of Berry and began the quality assurancereview of Berry's case.

The record does not include a transcript of the hearing onplaintiffs' motion to compel and does not indicate whether thetrial court conducted an in camera inspection of the disputeddiscovery documents. On November 21, 2001, the trial courtordered the Hospital to produce the September 16 letter butdenied plaintiffs' motion to compel production of the other threedocuments. After the Hospital refused to produce the September16 letter, the trial court held the Hospital in contempt andfined it $10. This appeal followed.

ANALYSIS

The Hospital contends on appeal that the September 16 letteris privileged under the Act because it triggered the internalquality control proceedings regarding Berry's case. The Hospitalargues that the letter is privileged as a report or statementused 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 orother third party confidential assessments of a healthcare practitioner's professional competence, or otherdata of * * * committees of licensed or accreditedhospitals or their medical staffs, including PatientCare Audit Committees, Medical Care EvaluationCommittees, Utilization Review Committees, CredentialCommittees and Executive Committees, or their designees(but not the medical records pertaining to thepatient), used in the course of internal qualitycontrol or of medical study for the purpose of reducingmorbidity or mortality, or for improving patient careor increasing organ and tissue donation, shall beprivileged, strictly confidential and shall be usedonly for medical research, increasing organ and tissuedonation, the evaluation and improvement of qualitycare, or granting, limiting or revoking staffprivileges or agreements for services * * *." 735 ILCS5/8-2101 (West 1998).

The Act further provides that such privileged material"shall not be admissible as evidence, nor discoverable in anyaction 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 thisstatutory privilege is on the party seeking to invoke theprivilege. Roach v. Springfield Clinic, 157 Ill. 2d 29, 41(1993). Whether the privilege applies is a matter of law, andour standard of review is de novo. Niven v. Siqueira, 109 Ill.2d 357, 368 (1985). However, the question of whether specificmaterials are part of an internal quality control or a medicalstudy is a factual question and will not be reversed on reviewunless 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 themedical profession will effectively engage in self-evaluation oftheir peers in the interest of improving hospital conditions andpatient 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 tosit on peer-review committees and engage in candid evaluations oftheir colleagues. Roach, 157 Ill. 2d at 40.

The Hospital argues that the September 16 letter isprivileged because Dr. Lopez wrote it to begin the quality reviewprocess and understood its contents would be privileged andconfidential. The Hospital asserts that the application of theprivilege to the September 16 letter is consistent with the Act'spurpose to encourage candid and voluntary peer-review programs toimprove hospital conditions and patient care and to reduce therates of death and disease. We disagree.

Even if the September 16 letter notified Dr. Acharya onbehalf of the investigatory committee of a potential qualitycontrol issue, the Act's privilege does not apply because theSeptember 16 letter was information of the Hospital's staffrather than information of any committee, peer-review orotherwise. Roach, 157 Ill. 2d at 39 ("What the [Act] actuallyprotects is not information of a hospital's medical staff, butinformation of 'committees of licensed or accredited hospitals ortheir 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 16letter.

Our supreme court addressed a similar appeal in Roach, wherethe plaintiffs alleged that their child's birth defects resultedfrom an unreasonable delay in providing the mother's anesthesia. 157 Ill. 2d at 35-36. A couple of days after the child's birthbut before the monthly meeting of the hospital's peer-reviewcommittee, the hospital's chief anesthesiologist spoke with anurse and a nurse anesthetist about the cause of the allegeddelay. Roach, 157 Ill. 2d at 36-38. With respect to thoseconversations, the chief anesthesiologist stated in hisdeposition that his specific purpose as the departmentchairperson had been "'[t]o determine if there was a problem, andif there was a problem, to help find ways to improve things;quality control.'" Roach, 157 Ill. 2d at 39. Following thoseconversations, the chief anesthesiologist "'made a report to theDepartment of Anesthesia meeting.'" Roach, 157 Ill. 2d at 39.

At trial, the Roach plaintiffs called as a witness the nurseanesthetist, who referred to the aforementioned conversation withthe chief anesthesiologist. Roach, 157 Ill. 2d at 36. Thedefense then objected, and the trial court sustained thatobjection and refused to allow the nurse anesthetist to testifyabout his conversation with the chief anesthesiologist, findingthat it was privileged under the Act. Roach, 157 Ill. 2d at 37. On appeal, our supreme court held that the trial courterroneously excluded that evidence. Roach, 157 Ill. 2d at 32.

The Roach court held that the information obtained by thechief anesthesiologist (1) was not privileged under the Actbecause it was not "'information of' any committee, peer-reviewor otherwise" and (2) "was not transformed into 'information of'"a department or committee merely because the chiefanesthesiologist reported the incident to a peer-review bodysometime later. (Emphasis in original.) Roach, 157 Ill. 2d at40-41. The Roach court reasoned that to hold otherwise wouldcompletely subvert the purpose of the Act to promote improvedpatient care because hospitals could then foreclose disclosure ofvirtually all adverse facts known to its medical staff. 157 Ill.2d at 41.

Because the information sought in Roach was not informationof any committee, our supreme court found it unnecessary todefinitively resolve the issue of whether a hospital's committeemust be involved in the peer-review process before the privilegewill attach. Roach, 157 Ill. 2d at 40. The Roach court noted,however, that the legislative debate and case law concerning theAct suggested that when the committee is comprised of ahospital's medical staff, "the committee must be involved in thepeer-review process before the privilege will attach." (Emphasisadded.) Roach, 157 Ill. 2d at 40.

Subsequently, this court interpreted the Act to limit theprivilege to the mechanisms of the peer-review process--i.e.,information initiated, created, prepared or generated by a peer-review committee, including information gathering anddeliberation leading to the committee's ultimate decision. Chicago Trust Co., 298 Ill. App. 3d at 402 (reports preparedshortly after the incident and used by the oversight committee toreview that incident were not privileged where the reports werenot requested by--and thus did not belong to--a committee engagedin the peer-review process); Grandi v. Shah, 261 Ill. App. 3d551, 556 (1994) (even assuming that a hospital administrator'sconversations with a doctor and nurse to investigate a patientcomplaint were part of the hospital's internal review process,those conversations were not protected because the administratorwas not acting on behalf of any peer-review committee).

Here, the Hospital attempts to distinguish Roach bysuggesting that the September 16 letter marked the beginning ofthe peer-review process--and thus was part of that process--because Dr. Lopez wrote the letter in response to establishedHospital policy that staff was responsible for notifying thequality control committee of potential issues.

In Roach, the defendant hospital made a similar argument--i.e., that the chief anesthesiologist's conversations with twomedical staff members were tantamount to an investigation by acommittee and thus were part of the peer-review process. TheRoach court, however, rejected that argument, noting that thechief anesthesiologist spoke to those staff members before thedepartment was notified of the problem; that there was no legalprinciple warranting imputing the chief anesthesiologist'sactions to the department simply because he served as itschairperson; that the department, as a body, was charged with theresponsibility for conducting medical reviews at monthlymeetings; and that the hospital's bylaws contained no provisionconferring on the chairperson or any individual the authority toact for the department. Roach, 157 Ill. 2d at 42-43.

For these same reasons, we reject the Hospital's assertionthat Dr. Lopez's September 16 letter was protected as part of thepeer-review process. Clearly, Dr. Lopez, who had no similarposition of authority as the chief anesthesiologist in Roach,cannot successfully argue that she was acting on behalf of thedepartment or a committee to investigate the Berry case where theHospital concedes that the department was not aware of theproblem until Dr. Lopez's September 16 notification and where thepeer-review committee met several months after Dr. Lopez wrotethe September 16 letter.

The Hospital also contends that Roach is not relevant,arguing that Roach (1) did not address a writing submitted to apeer-review committee to initiate its proceedings, and (2) merelystands for the proposition that information does not becomeprivileged simply because a written report containing it might beprivileged. The application of the privilege under the Act isnot based on whether the information is verbal or written; underthe 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 theAct does not protect information of a hospital's medical staff,but information of its committees. The Hospital also ignores theRoach court's extensive discussion and rejection of the argumentthat an investigation initiated and conducted by a departmentchairperson was tantamount to an investigation by a committee ofthat department.

The September 16 letter was not initiated, created orgenerated by a peer-review committee. The letter was writtenprior to the commencement of the peer-review process as a meansto bring to Dr. Acharya's attention a potential quality issue. Based on our careful review of the record, we find that the trialcourt properly ordered the Hospital to produce the September 16letter.

Contempt

As a final matter, we address the trial court's contemptorder. Requesting the trial court to enter a contempt order is aproper procedure to seek immediate appeal of a trial court'sdiscovery order. Green v. Lake Forest Hospital, 335 Ill. App. 3d134, 139 (2002); Buckman v. Columbus-Cabrini Medical Center, 272Ill. App. 3d 1060, 1067 (1995). In this case, we find that theHospital's decision not to produce the September 16 letter wasmade in good faith. The Hospital was not contemptuous of thetrial court's authority but merely sought appellate review of itsunsuccessful assertion of privilege. Green, 335 Ill. App. 3d at139. We therefore vacate the trial court's contempt order andfine. Chicago Trust Co., 298 Ill. App. 3d at 410.

CONCLUSION

The trial court correctly overruled the Hospital'sobjections to producing the September 16 letter. The contemptorder is vacated. We return the sealed document to the trialcourt for proceedings consistent with this order.

Affirmed in part and vacated in part; cause remanded.

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

1. The three other documents were (1) Dr. Acharya's letterto Dr. Lopez, dated February 18, 2000, which was written after amorbidity and mortality review meeting held February 11, 2000;(2) Dr. Lopez's letter to Dr. Acharya, dated March 3, 2000, whichwas written at the request of the morbidity and mortality reviewcommittee; and (3) a Multidisciplinary Case Review Report.