NO. 4-03-1025

JUSTICE McCULLOUGH delivered the opinion of the court:

On August 12, 2002, plaintiff, Molly Youle, filed a two-count complaint against defendants, Raymond Ryan, M.D., and SarahBush Lincoln Health Center, for negligence related to plaintiff'sgallbladder removal surgery (cholecystectomy). Plaintiff filed asupplemental request to produce the contents of Dr. Ryan's surgicaldatabase, a request with which Dr. Ryan refused to comply. On March5, 2003, plaintiff filed a motion to compel Dr. Ryan to produce thedatabase contents. On August 14, 2003, after hearing, the trialcourt granted plaintiff's motion. On September 4, 2003, Dr. Ryanfiled a motion to reconsider. On October 28, 2003, the court deniedhis motion to reconsider. At hearing, it found Dr. Ryan's counsel,contemnor, Kevin Miller, in willful contempt of court and sanctionedhim by imposing a fine of $100. On appeal, Miller argues that (1)the court erred in granting plaintiff's motion to compel where thecontents of Dr. Ryan's surgical database would not reasonably lead todiscoverable information and (2) the contempt finding and fine shouldbe vacated. We reverse in part, vacate in part, and remand withdirections.

On August 12, 2002, plaintiff filed a medical malpracticecomplaint against Dr. Ryan and Sarah Bush Lincoln Health Center,alleging Dr. Ryan was negligent in performing a cholecystectomy onher in that he transected her common bile duct during surgery.

On January 28, 2003, Dr. Ryan testified in a discoverydeposition that he maintains a surgical database of all the cases inwhich he has participated since he began practice. As to cholecystectomies, he listed the name of the patient, the date of the surgery, the referring physician, the type of anesthesia, the type ofoperation, the pathology involved, and any unique complications forparticular cases.

Plaintiff filed a supplemental request to produce, specifically requesting a print version of Dr. Ryan's database, to includeinformation related to all the cholecystectomy procedures he had everperformed, with the patient names redacted. Dr. Ryan refused tocomply, stating that the request was not reasonably calculated tolead to the discovery of admissible evidence. On March 5, 2003,plaintiff filed a motion to compel production of the database contents, arguing that the contents were reasonably calculated to leadto the discovery of admissible evidence because "[e]vidence of priorsurgeries engaged in by Defendant Ryan which are similar enough tothis surgery, could show evidence of a pattern or practice of negligence on the part of Defendant Ryan."

On August 14, 2003, the trial court held a hearing onplaintiff's motion to compel. The court granted the motion as to thedatabase contents, with the exception that any reference to anypatient or any other information that might reasonably allow for theidentification of a patient be redacted. The court further prohibited plaintiff's counsel from providing a copy of the requestedinformation to any person except a retained expert witness or anyonewhom plaintiff reasonably expected to use as an expert witness in thecase.

Dr. Ryan filed a motion to reconsider, reasserting that a"pattern or practice of negligence" was an improper ground on whichto grant the motion. At hearing, plaintiff's counsel acknowledgedhis motion "was probably inartfully drafted" but that the reason thetrial court granted the motion was that it "believed that the discovery in question may lead to admissible evidence in the form ofevidence which would impeach Dr. Ryan's experience, which is one ofthe foundational bases for expert testimony." She was concerned that"Dr. Ryan's experience may not be up to par" to be qualified totestify as to the relevant standard of care. Dr. Ryan asked thetrial court to conduct an in camera inspection of the databasecontents, contained within a relatively short document, before rulingon his motion to reconsider. The court declined and denied Dr.Ryan's motion to reconsider. It found that the document and information therein were not discoverable to show a "pattern or practice ofnegligence by Dr. Ryan." However, the court further concluded:

"I do believe the documents and informationare discoverable because it is reasonable for theplaintiff to anticipate that Dr. Ryan may becalled to testify on his own behalf as an expertwitness and to offer testimony that the professional conduct engaged in by him met with theapplicable standard of care and that he, as anexpert in the field, is familiar with the applicable standard of care.

I cannot foresee if the doctor were calledto testify that the jury wouldn't consider hiseducational background, his training, his experience, and other matters that go to his qualifications, and in that regard, I think the discoveryof the documents and information in question isreasonably related to the question of the doctor's foundation and background as an expertwitness.

Now, hypothetically, of course, I have noidea what the doctor might say, but he might sayhe's familiar with the standard of care, that hisprocedures met with the applicable standard ofcare, that he's done similar procedures on anynumber of occasions, and he did the procedure inquestion just like he always did it, and maybethe plaintiff will be able to show from an examination of the records that that's not so, that hedid something different in this particular instance.

Of course, what I just said constitutesspeculation but I think it's reasonably calculated to lead to discovery of relevant information by allowing the plaintiff to look at theserecords."

After the trial court denied defendants' motion to reconsider, defendants again requested that the court enter an orderimposing a sanction under Supreme Court Rule 219(c) (166 Ill. 2d R.219(c)), thereby permitting defendants an immediate appeal under Rule304(b)(5) (155 Ill. 2d R. 304(b)(5)). Miller indicated his intentionnot to comply with the court's order compelling production of thedatabase contents and asked the court to enter a contempt finding. The court found Miller in contempt and assessed a sanction of $100.

Miller first argues that the trial court erred in grantingthe motion to compel where the contents of Dr. Ryan's surgicaldatabase would not reasonably lead to discoverable information. Where an individual appeals a contempt judgment imposed for violatinga discovery order, that discovery order is also subject to appellatereview. Reda v. Advocate Health Care, 199 Ill. 2d 47, 54, 765 N.E.2d1002, 1007 (2002). Discovery rulings are generally within the trialcourt's discretion and we will not disturb such decisions absent anabuse of that discretion. D.C. v. S.A., 178 Ill. 2d 551, 559, 687N.E.2d 1032, 1036-37 (1997). "However, the right to discovery islimited to disclosure of matters that will be relevant to the case athand in order to protect against abuses and unfairness, and a courtshould deny a discovery request where there is insufficient evidencethat the requested discovery is relevant or will lead to such evidence." Leeson v. State Farm Mutual Automobile Insurance Co., 190Ill. App. 3d 359, 366, 546 N.E.2d 782, 787 (1989).

Miller first contends that the trial court abused itsdiscretion in failing to conduct an in camera inspection of thedatabase contents prior to ordering production of the information. We agree. Supreme Court Rule 201(b)(1) limits discoverable materialto that "relevant to the subject matter involved in the pendingaction." 166 Ill. 2d R. 201(b)(1). Trial courts may supervise anyor all parts of the discovery process. 166 Ill. 2d R. 201(c)(2). This power includes the authority to review discovery materials incamera to determine any possible relevance. See In re Estate ofBagus, 294 Ill. App. 3d 887, 891, 691 N.E.2d 401, 404 (1998).

Here, the trial court had the prerogative to conduct afirsthand inspection of the disputed document to determine therelevance, if any, of the database information. The failure to do soresulted in the court making a decision as to relevance without allof the pertinent facts before it. Further, because the court did notexamine the document, defendants were unfairly limited in makingtheir case that the material was irrelevant for all purposes or wasotherwise protected from disclosure.

Applying the liberal discovery definition of relevance, wequestion how hundreds of medical records of third-party patientscould have any bearing on whether Dr. Ryan committed medical malpractice in this particular case or how such information would lead torelevant matters. See, e.g., Hilgenberg v. Kazan, 305 Ill. App. 3d197, 205, 711 N.E.2d 1160, 1166 (1999) (medical records of testifyingexpert's patient were properly excluded as a collateral matter anddid not interfere with opposing party's right to cross-examination);Leeson, 190 Ill. App. 3d at 366, 546 N.E.2d at 787 (rejecting argument that 2,100 unrelated medical claims were material and relevantto the reasonableness and necessity of medical expenses in the caseat bar). The fact that Dr. Ryan might testify as an expert witnesson his own behalf would not make the information any more or lessrelevant.

However, should the trial court conclude, after conductingsuch an inspection of the document, that the information containedtherein, or a portion thereof, is relevant for discovery purposes,the court should state the grounds of relevance of that information.

Even if the trial court deems the database contents to berelevant upon inspection, a privilege may apply to the extent theinformation contains third-party medical records. See Glassman v.St. Joseph Hospital, 259 Ill. App. 3d 730, 745-46, 631 N.E.2d 1186,1198-99 (1994) (affirming denial of motion to compel discovery ofmedical records of third-party patients who underwent surgery by thesame surgeons and who experienced difficulties similar to the plaintiff); In re D.H., 319 Ill. App. 3d 771, 774, 746 N.E.2d 274, 277(2001) (rejecting argument for exception to physician-patient privilege of third-party patients where physician is sued for malpractice); Ekstrom v. Temple, 197 Ill. App. 3d 120, 130, 553 N.E.2d 424,430 (1990) (statutory privilege barred disclosure of medical recordsof third-party patients even where names and identification numberswere redacted).

While defendants did not explicitly claim that the database contents were privileged, the record shows that they couched aprivilege argument in terms of the need for confidentiality of therecords of third-party patients' medical treatment. A party claimingthat discovery material is privileged may not merely assert that thematter is confidential and privileged; rather, he should support sucha claim "either by producing the materials for an in camera inspection or by submitting affidavits setting forth facts sufficient toestablish the applicability of the privilege to the particulardocuments." Menoski v. Shih, 242 Ill. App. 3d 117, 121, 612 N.E.2d834, 836-37 (1993). Accordingly, even if the trial court had properly determined that the information was relevant, it should havereviewed the document in camera to determine whether defendants'privilege claim had merit. Only by making a fully informed decisioncould the court fashion an appropriate discovery order by balancingthe interests of plaintiff in obtaining relevant nonprivilegedinformation against the need to promote effective professional self-evaluation by members of the medical profession in the interest ofimproving the quality of health care.

Under the circumstances, the trial court abused itsdiscretion in failing to conduct an in camera inspection of therequested document prior to denying defendants' motion to reconsider. Accordingly, we reverse the court's judgment granting plaintiff'smotion to compel and remand with directions that the court examinethe database contents in camera.

As a final matter, we address the trial court's contemptorder. Requesting the court to enter a contempt order is an appropriate method by which a party may test the correctness of a discovery order. Reda, 199 Ill. 2d at 54, 765 N.E.2d at 1007. Here, thecourt concluded, as do we, that Miller's decision not to comply withthe court's order to produce the contents of Dr. Ryan's database wasmade in good faith. Miller was not contemptuous of the court'sauthority but merely sought appellate review of the order to produce. We therefore vacate the court's contempt order and fine.

For the reasons stated, we reverse the trial court'sjudgment granting the motion to compel, vacate the contempt findingand fine, and remand with directions.

Reversed in part and vacated in part; cause remanded withdirections.

COOK and APPLETON, JJ., concur.