FIRST DIVISION
March 29, 2004

In this case we consider the propriety of the trial court'sdetermination that documents withheld from discovery bydefendants were not privileged under that part of the Code ofCivil Procedure commonly known as the Medical Studies Act (735ILCS 5/8-2101 et seq. (West 2000))(the Act). In response toplaintiff's discovery requests, defendants claimed that certaindocuments were privileged because they were part of an internalpeer-review conducted by the Risk Management Committee at MountSinai Hospital and Medical Center of Chicago, Inc. (Mt. Sinai). After an in camera review of the documents and consideration ofthe affidavits, briefs, and arguments offered by the parties, thetrial court found that the documents were not privileged andordered that defendants produce them. Defendants asked the trialcourt to reconsider its decision. The trial court denied thatmotion and found defendants in contempt of court for theirfailure to produce the documents. The trial court additionallyfined defendants $50. Payment of the fine was stayed pendingdisposition of appeal.

On July 28, 2000, plaintiff filed a complaint againstdefendants, two additional doctors, and another medical facility,seeking damages under the Illinois Wrongful Death Act (740 ILCS180/0.01 et seq. (West 2000)) and the Illinois Survival Act (755ILCS 5/27-6 (West 2000)). The complaint alleged that Ashley Webbwas admitted to Mt. Sinai on July 28, 1998, "as an in-patient torule out hepatitis and treatment for dehydration." Williams wasone of her treating physicians. Ashley Webb died at Mt. Sinai onJuly 29, 1998. The complaint alleged her death was due todefendants' negligence. The case was removed to the federaldistrict court, where the claims against all defendants exceptMt. Sinai and Williams were dismissed. Finding that it lackedjurisdiction over the claims, the district court remanded thecase to the circuit court.

During discovery, plaintiff served interrogatories andrequests to produce on defendants. In response to severalinquiries, defendants explained that they possessed certaindocuments responsive to the requests but that those documentswere privileged under the Act. The documents at issue in thisappeal are a "Patient Safety Digest Professional Peer ReviewOccurrence Summary" (Occurrence Summary) authored by LoriNotowitz, R.N., M.J., the former director of risk management atMt. Sinai, and four memoranda "from" Notowitz "to" the RiskManagement Committee (collectively the memoranda). The memorandasummarized her interviews with four doctors, including Williams. Two of the memoranda were dated August 4, 1998. The other twowere dated July 29, 1998.

Upon receiving defendants' objections, plaintiff filed a"Motion for Ruling on Defendants' Medical Studies and WorkProduct Objections," requesting in camera review of thedocuments. Rather than immediately offering the documents for incamera review, defendants offered the affidavit of Notowitz. According to the affidavit, in July and August 1998, Notowitz wasthe director of risk management for Mt. Sinai. Part of herduties was "to improve patient care and safety" at Mt. Sinai"through risk management techniques, which included, among otherthings, [her] participation in peer review committees." She wasalso responsible "for loss prevention and managing claims" andwas "in the decision-making chain in settling claims against" Mt.Sinai. She was also a member of the Risk Management Committee,which "was a peer review committee composed largely ofphysicians, including the President of the Medical Staff." Thepurpose of the committee "was to review patient care incidentsand related systems issues in an effort to improve patientsafety, the quality of patient care, and to reduce morbidity andmortality." Notowitz prepared the documents at issue in thiscase and interviewed the various doctors mentioned in thosedocuments "at the specific direction of the Risk ManagementCommittee *** only after that Committee had received a report ofAshley Webb's death less than 24 hours after her admission to theHospital and after that Committee had undertaken a formal reviewof that occurrence." The documents were "utilized solely for thepurposes of the investigation of the Risk Management Committee***. They were presented solely to the Risk Management Committee***. They were utilized solely for peer review, patient safety,and quality improvement purposes." They were kept separate fromany litigation files and were not shared with Mt. Sinai'sattorneys.

In reply, plaintiff claimed that defendants' affidavit wasinsufficient to show that the privilege applied. Specifically,plaintiff complained that the evidence failed to show "when the'peer review' or 'quality improvement committee' first met tobegin investigating Ashley Webb's death." The trial courtordered defendants to file supplemental affidavits and providethe documents for in camera review.

Notowitz's second affidavit added that "[p]atient careincidents requiring review by the Risk [M]anagement Committeewere brought to the attention of the Committee by a variety ofsources, including individual Committee members and departmentpeer review committees" and that "where an event occurred betweenscheduled meetings of the Risk Management Committee, the Chairmanof that committee had the authority to initiate an investigationand review of the occurrence" on behalf of the committee. OnJuly 29, 1998, after being notified of Ashley Webb's death, theChairman of the Risk Management Committee instructed Notowitz "toinitiate an investigation and review of the occurrence" on behalfof the committee. The memoranda documenting Notowitz'sinterviews with doctors Perkins, Chaparro, Williams, and Ojo wereprepared to "utilize in the preparation" of the OccurrenceSummary. "The memoranda themselves were not distributed tomembers of the Risk Management Committee. In fact, they wereshared with nobody." Notowitz maintained minutes of all of themeetings of the Risk Management Committee, but she was unaware ofwhat became of those minutes after she left Mt. Sinai and"relinquished control of them to [her] successor." She did notrecall the date of the meeting of the Risk Management Committeein which she discussed her findings and recommendations inrelation to Ashley Webb. She remembered, however, that a meetinghad occurred.

After reviewing the affidavits and the documents, the trialcourt concluded that the documents were not privileged under theAct. The court explained:

"Inspection of the actual documents undoubtedlyreveals that their purpose encompassed 'an effort toimprove patient safety, the quality of patient care,and to reduce morbidity and mortality.' However, thisinspection also reveals that the processes of peer-review and quality improvement were not the solepurpose of their generation. Each of the documentsauthored by Notowitz clearly anticipates litigation. The Peer Review Occurrence Summary advises the RiskManagement Committee that 'the risk of litigation ishigh.' Each memo pertaining to an interview begins,'You have asked me to review the care of Ashley Webb toidentify any issues of liability or potential patientsafety.' Regardless as to whether these documents wereever used in a peer-review process, such statementsindicate that they were, at least in part, created torender legal opinions or weigh potential liabilityrisk. Thus, since they were not generated specificallyfor peer-review, these documents are not protected bythe privilege allowed by the Illinois Medical StudiesAct." (Emphasis added.)

Defendants filed a motion for reconsideration of the trialcourt's order. Alternatively, defendants sought an amended orderlimiting production to redacted documents or a contempt orderthat would allow defendants to appeal the trial court's order.

After plaintiff filed her response to defendants' motion forreconsideration, the trial court granted defendants' request foradditional time to file a supplemental affidavit. Specifically,the trial court instructed defendants that in order to reconsiderits findings, the trial court sought information regardingNotowitz's use of the phrases "liability" and "litigation" in thedocuments and proof that "the peer review took place."

In her third affidavit, Notowitz corrected a previouserroneous statement that the president of the medical staff waschairman of the Risk Management Committee and indicated that thechairman was the vice president of medical affairs at Mt. Sinai. Notowitz explained that the only functions of the Risk ManagementCommittee were "peer review and patient safety." The committee"did not review or evaluate liability issues or exposure topossible future litigation" in this or any other case "becauseother Hospital committees were charged specifically withaddressing those issues." The committee had authorized itschairman to act on its behalf and "initiate investigation andreview of an occurrence" when such an occurrence happened betweenregularly scheduled committee meetings. On "7/28/98," Notowitzinformed the chairman of Ashley Webb's death, and the chairmaninstructed her "to initiate an investigation and review of theoccurrence" on behalf of the committee. The full committee didnot meet before Notowitz began her investigation.

With regard to the references in the memoranda to issues ofliability, Notowitz explained:

"Insofar as [the memoranda] contain introductorylanguage suggesting that I was to review the care ofAshley Webb to identify 'any issues of liability,' thatlanguage was included at the specific instruction ofHospital counsel as being necessary to preserve thematerials as privileged. Notwithstanding thatlanguage, however, I did not conduct these interviewsor prepare these memoranda or Exhibit A for the purposeof evaluating potential liability risk or weighingexposure in possible future litigation. Nor did theRisk Management Committee review the care of AshleyWebb for the purpose of evaluating potential liabilityrisk or weighing exposure in possible futurelitigation."

At a hearing on October 17, 2002, defendants requested anevidentiary hearing on the motion to reconsider. The trial courtdenied that request finding that defendants had indicated thatthey had provided the court with everything it needed. The trialcourt, however, offered defendants the opportunity to bringNotowitz into court to give a sworn oral statement. Defendantselected not to bring Notowitz into court because of the expenseof doing so.

On February 26, 2003, the trial court denied defendants'motion for reconsideration. The trial court found that theaffidavits of Notowitz were "insufficient to establish that thedocuments she authored were privileged" under Act and emphasized that "[d]efendants [had] been given ample opportunity to providethe information necessary for this Court to make the conclusionas a matter of law that the at-issue documents are privilegedunder the Medical Studies Act," but failed to do so. Althoughfinding defendants in contempt and imposing "a penalty of $50.00upon them," the trial court did not find defendants' refusal toproduce the documents "contemptuous."

On appeal, defendants contend that the trial court's findingthat the documents were not privileged under the Act was againstthe manifest weight of the evidence. Defendants claim that the"uncontroverted affidavits of Lori Notowitz *** established thatthe documents at issue are *** protected." Specifically,defendants claim that because the plaintiff did not "file anycounteraffidavits or other evidentiary material controverting thewell-alleged facts of Ms. Notowitz's affidavit that were based onher personal knowledge," we must accept the facts of Notowitz'saffidavits as true. Regardless of our disposition on the merits,defendants argue, the trial court's contempt order should bevacated because it was sought in good faith as a means ofobtaining review of the trial court's discovery order.

Plaintiff responds that the trial court's finding that thedocuments were not privileged and its order to produce thedocuments were proper. Plaintiff first argues that Notowitz'saffidavits are inconsistent and need not be accepted as true. Plaintiff next claims that "the hospital did not produce anycredible evidence to show that the hospital actually conducted apeer review." Specifically, it points to Mt. Sinai's failures toproduce the minutes of the committee meeting related to AshleyWebb's death and explain why it did not produce them. Plaintiffcontends that, based on the evidence, "we do not know when thepurported review took place, i.e., when it began and when itended, or even if one actually occurred." Finally, plaintiffargues that the language from the documents, as identified in thetrial court's order, "contravened the hospital's contention thatthese were specifically peer review documents." Plaintiffdiscounts Notowitz's explanation of the litigation language inthe memoranda by claiming that the "excuse implies that thehospital was, at least at that point, trying to create anattorney-client privilege, and that in turn further implies thatNotowitz was engaged in a liability investigation, not a peerreview investigation." Plaintiff does not object to defendants'request that we vacate the contempt order entered againstdefendants.

Section 8-2101 of the Act provides, in relevant part:

"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 2002).

The Act further provides:

"Such information, records, reports, statements,notes, memoranda, or other data, shall not beadmissible as evidence, nor discoverable in any actionof any kind in any court or before any tribunal, board,agency or person. The disclosure of any suchinformation or data, whether proper, or improper, shallnot waive or have any effect upon its confidentiality,nondiscoverability, or nonadmissibility." 735 ILCS5/8-1202 (West 2002).

The Act's purpose "is to ensure that members of the medicalprofession will effectively engage in self-evaluation of theirpeers in the interest of advancing the quality of health care." Roach v. Springfield Clinic, 157 Ill. 2d 29, 40 (1993). The Actalso serves "to encourage candid and voluntary studies andprograms used to improve hospital conditions and patient care orto reduce the rates of death and disease." Niven v. Siqueira,109 Ill. 2d 357, 366 (1985). The Act "was never intended toshield hospitals from potential liability" (Roach, 157 Ill. 2d at42), and "legal advice is not a goal of the protection offered bythe Act" (Chicago Trust Co. v. Cook County Hospital, 298 Ill.App. 3d 396, 404 (1998)).

The Act does not protect "all information used for internalquality control" (Grandi v. Shah, 261 Ill. App. 3d 551, 557(1994)); instead, documents "generated specifically for the useof a peer-review committee receive protection under the Act"(Chicago Trust Co., 298 Ill. App. 3d at 402). A document that"was initiated, created, prepared, or generated by a peer-reviewcommittee" is privileged under the Act, "even though it was laterdisseminated outside the peer-review process." Chicago TrustCo., 298 Ill. App. 3d at 406. The reverse is not true, however. A document created "in the ordinary course of the hospital'smedical business, or for the purpose of rendering legal opinionsor to weigh potential liability risk or for later correctiveaction by the hospital staff" is not privileged "even though itlater was used by a committee in the peer-review process." Chicago Trust Co., 298 Ill. App. 3d at 406. Our supreme courtexplained:

"If the simple act of furnishing a committee withearlier-acquired information were sufficient to cloakthat information with the statutory privilege, ahospital could effectively insulate from disclosurevirtually all adverse facts known to its medical staff,with the exception of those matters actually containedin a patient's records. As a result, it would besubstantially more difficult for patients to holdhospitals responsible for their wrongdoing throughmedical malpractice litigation. So protected, thoseinstitutions would have scant incentive for advancingthe goal of improved patient care. The purpose of theact would be completely subverted." Roach, 157 Ill. 2dat 41-42.

Similarly, the Act does not "protect against disclosure ofinformation generated before a peer-review process begins orafter it ends." Ardisana v. Northwest Community Hospital, Inc.,342 Ill. App. 3d 741, 748 (2003). Thus, the hospital committee"must be engaged in the peer-review process before the statutoryprivilege is applicable." Grandi, 261 Ill. App. 3d at 557.

The question of whether the Act's privilege applies is aquestion of law that is reviewed de novo; however, the questionof whether specific materials are part of an internal qualitycontrol "is a factual question," on which defendants bear theburden. Berry v. West Suburban Hospital Medical Center, 338 Ill.App. 3d 49, 53-54 (2003). Similarly, defendants bear the burdenof any "failure to make a more complete record." Grandi, 261Ill. App. 3d at 557. The trial court's factual determination ofwhether the documents at issue were part of an internal qualitycontrol will not be reversed "unless it is against the manifestweight of the evidence." Berry, 338 Ill. App. 3d at 54.

A decision is against the manifest weight of the evidence"if it is wholly unwarranted by the evidence" (Schleyhahn v.Cole, 178 Ill. App. 3d 111, 117 (1989)), if "an oppositeconclusion is apparent or *** the trial court's findings appearto be unreasonable, arbitrary, or not based upon the evidence"(Freese v. Buoy, 217 Ill. App. 3d 234, 244 (1991)), or if "it isclearly evident that the conclusion opposite to the one reachedby the trial court was the proper disposition" (Crawford CountyState Bank v. Marine American National Bank, 199 Ill. App. 3d236, 256 (1990)). In evaluating the evidence in this case, werecognize that when the facts in an affidavit are uncontradicted,"they must be taken as true notwithstanding the existence ofcontrary unsupported allegations." Flannery v. Lin, 176 Ill.App. 3d 652, 658 (1988). However, a counteraffidavit is not theonly means by which an affidavit can be contradicted; anaffidavit may be contradicted by other documentary evidence. See, e.g., Rumford v. Countrywide Funding Corp., 287 Ill. App. 3d330, 336 (1997)(finding that a moving party is not entitled tosummary judgment based on the opposing party's failure to file acounteraffidavit where the moving party's affidavit iscontradicted by documents attached to the complaint). Wherethere are conflicts or contradictions in the evidence, the trialjudge "is in a better position than is the appellate court toweigh the evidence and ascertain the credibility of thewitnesses." Crawford County State Bank, 199 Ill. App. 3d at 256;see also Susan E. Loggans & Associates v. Estate of Magid, 226Ill. App. 3d 147, 154 (1992).

After our review of Notowitz's three affidavits and thedocuments at issue in this appeal, which were provided to usunder seal, we do not find that Notowitz's affidavits arecompletely uncontradicted, as defendants argue. Instead, we findsignificant discrepancies in the evidence. In the firstaffidavit, for instance, Notowitz explained that the fourmemoranda were "presented solely to the Risk ManagementCommittee." Yet, in her second affidavit, she claims that "[t]hememoranda themselves were not distributed to members of the RiskManagement Committee." Moreover, Notowitz explained the purposeof the Risk Management Committee as reviewing patient careincidences "in an effort to improve patient safety, the qualityof patient care, and to reduce morbidity and mortality." Yet,the documents contradict this assertion. Specifically, thememoranda include statements that each was prepared at therequest of the Risk Management Committee, in part, "to identifyany issues of liability." Similarly, the Occurrence Summaryconcludes that "the risk of litigation is high." It was notuntil after the trial court ruled that the documents were notprivileged under the Act because of this language that Notowitzattempted to explain the statements. It was not unreasonable forthe trial court to give more credit to the statements made in thedocuments and contemporaneously with the events at issue in thiscase than to the statements made more than four years later afterthe trial court ruled that the earlier statements rendered thedocuments unprivileged. Moreover, the trial court's finding wasnot inconsistent with the evidence, which explained that as apart of her duties at Mt. Sinai, Notowitz was responsible "forloss prevention and managing claims" and was "in the decision-making chain in settling claims against" Mt. Sinai.

Contrary to defendants' claim, Flannery v. Lin, 176 Ill.App. 3d 652 (1988), was not a case where a "far weaker factualshowing [than presented in this case] was found sufficient" toestablish that the privilege applied. In that case, the courtfound that a "code blue evaluation report" was privileged because"the record adequately demonstrate[d] that the code blueevaluation report was part of the hospital's internal qualitycontrol." Flannery, 176 Ill. App. 3d at 657. The defendantsupported its claim of privilege with the affidavits of itsdirector of quality management and manager of medical records. Both affidavits described the code blue evaluation report as apart of the hospital's quality control review. Flannery, 176Ill. App. 3d at 654-55. The court's finding that the documentswere privileged was based upon the facts contained in thoseaffidavits, both of which were uncontradicted. Flannery, 176Ill. App. 3d at 655, 658. As noted above, that was not case herewhere Notowitz's affidavits were internally inconsistent andcontradicted by the documentary evidence.

Furthermore, as the trial court pointed out in this case,there is no indication in the record as to when the RiskManagement Committee's review occurred. While Notowitz claimsthat her interviews occurred "after that Committee had undertakena formal review of that occurrence," there is no evidence showingthat all the memoranda and the occurrence report were completedprior to the close of the committee's review. Moreover, in herthird affidavit, Notowitz claimed that she informed the chairmanof the Risk Management Committee of Ashley Webb's death andinitiated the investigation and review of that occurrence on"7/28/99," a date which conflicts with the one given in herearlier affidavits and appears to be the day before Ashley Webbdied. As noted above, the timing of the peer review is a crucialfact because the Act does not protect documents generated beforethe peer-review process begins or after it ends. See Ardisana,342 Ill. App. 3d at 748. Without this evidence and in light ofthe specific words contained in the documents, it was notunreasonable for the trial court to conclude that defendantsfailed to show that the documents were part of the RiskManagement Committee's peer-review process.

Based on all the evidence, it is not apparent that anopposite conclusion was warranted. Nor are we convinced that thetrial court's decision was unreasonable, arbitrary, or contraryto the evidence. The trial court's decision was not against themanifest weight of the evidence, and we affirm the trial court'sorder that the documents be produced. This, however, does notmean that we must affirm the finding of contempt againstdefendants.

It is appropriate for a party to request that a contemptorder be entered against it so that party may seek immediateappeal of a trial court's discovery order. Berry, 338 Ill. App.3d at 57. In such situations, where the party sought the orderin good faith and was not contemptuous of the trial court'sauthority, we may vacate the contempt order even when we findthat the trial court's discovery order was proper. Berry, 338Ill. App. 3d at 57. In this case, the trial court found thatdefendants' actions were not contemptuous. Defendantsappropriately sought review of a discovery order requiring themto produce documents which they reasonably contended wereprivileged. Accordingly, we vacate the contempt order enteredagainst defendants.

Affirmed in part, vacated in part.

O'MALLEY, P.J., and GORDON, J., concur.