Daley v. Teruel

2018 IL App (1st) 170891

107 N.E.3d 1028

Terri DALEY, Independent Administrator of the Estate of Rosalie Galmore Jones, deceased, Plaintiff–Appellee,

v.Kevin TERUEL, RN; Victoria Hall, RN; and Ingalls Memorial Hospital, Defendants,

(Ingalls Memorial Hospital, Defendant–Contemnor–Appellant).

No. 1–17–0891

Appellate Court of Illinois, First District, Fourth Division.

June 28, 2018

Karen Kies DeGrand, Sherri M. Arrigo, and Laura Coffey Ieremia, of Donohue Brown Mathewson & Smyth LLC, of Chicago, for appellant.

Matthew D. Ports, of Pfaff, Gill & Ports, Ltd., of Chicago, for appellee.

Sarah F. King, of Clifford Law Offices, P.C., of Chicago, for amicus curiae Illinois Trial Lawyers Association.

Michael R. Callahan, of Katten Muchin Rosenman LLP, and Leonard A. Nelson, both of Chicago, Mark D. Deaton and Marilyn E. Hanzal, of Naperville, Richard R. King II and Sherri DeVito, of Springfield, and Peggy Binzer, of Alexandra, Virginia, for amici curiae Illinois Health and Hospital Association et al.

PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Terri Daley, as independent administrator of the estate of Rosalie Galmore Jones, deceased, sued defendants Kevin Teruel, RN; Victoria Hall, RN; and Ingalls Memorial Hospital (Ingalls) (collectively, defendants) for medical malpractice. During discovery, in response to one of plaintiff's written interrogatories and a request to produce, Ingalls claimed a privilege on certain documents based on the federal Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act) ( 42 U.S.C. § 299b–21 et seq. (2012) ). Plaintiff subsequently filed a motion to compel the production of the documents, which the Cook County circuit court granted. Ingalls refused, based on the Patient Safety Act and sought a contempt finding in order to facilitate appellate review. The court found Ingalls in contempt, and Ingalls appealed.

¶ 2 In this appeal, Ingalls contends that the documents constitute patient safety work product under the Patient Safety Act and the federal law preempts the circuit court's production order. We agree with both contentions, and accordingly, we reverse and remand the matter for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 A. The Patient Safety Act

¶ 5 The Patient Safety Act ( Pub. L. No. 109–41, 119 Stat. 424 (codified at 42 U.S.C. § 299b–21 et seq. ) ) established a voluntary reporting system of patient safety information by health care providers designed to analyze and improve patient safety and the quality of health care. Patient Safety and Quality Improvement, 73 Fed. Reg. 70,732, 70,732 (Nov. 21, 2008) (to be codified at 42 C.F.R. pt. 3). In order to encourage the voluntary reporting, the law provides privilege and confidentiality protections for patient safety information ( id. ), known as "patient safety work product," a broad set of information, such as data, reports, records, and written statements, that could help improve patient safety and the quality of health care. 42 U.S.C. § 299b–21(7)(A) (2012) ). Health care providers share this information with patient safety organizations, which are federally certified groups who collect and analyze patient safety work product and, in turn, recommend strategies to improve patient safety and the quality of health care. Id. §§ 299b–21(4), 299b–24 ; S. Rep. No. 108–196, at 5 (2003). Because the privilege and confidentiality protections are essential to the functioning of the system created by the Patient Safety Act, health care providers who disclose patient safety work product can face monetary fines of up to $10,000 per disclosure. 42 U.S.C. § 299b–22(f)(1) (2012).

¶ 6 B. The Litigation

¶ 7 Plaintiff's February 2016 amended complaint frames this appeal. Her lawsuit alleged that defendants committed medical malpractice when they failed to adequately monitor and treat the blood glucose levels of Rosalie Galmore Jones over the course of November 17 and 18, 2013. As a result of defendants' alleged negligence, plaintiff asserted that Jones suffered injuries that caused or contributed to her eventual death in October 2014.

¶ 8 Ingalls and Teruel filed an answer, denying any negligence. Hall filed a motion to dismiss based on her noninvolvement in Jones's care, though the record is unclear whether that motion was resolved prior to this appeal. All the meanwhile, the parties were conducting discovery.

¶ 9 In one of plaintiff's written interrogatories, she asked Ingalls to state whether the incident identified in the complaint was reported to, or investigated by, any hospital or governmental committee, agency, or body. Ingalls objected, as the interrogatory sought privileged information and directed plaintiff to an attached privilege log, in which it claimed privilege on six documents: incident review No. 25472, incident review No. 25753, complaint No. 5101, complaint No. 5478, the security department incident report, and the privilege file of Dr. Rita Oganwu. Concerning the first five documents, Ingalls claimed that they were privileged under the Illinois Medical Studies Act ( 735 ILCS 5/8–2101 et seq. (West 2016) ) and the federal Patient Safety Act ( 42 U.S.C. § 299b–21 et seq. (2012) ). Concerning the file of Dr. Oganwu, Ingalls claimed it was privileged under Illinois's Health Care Professional Credentials Data Collection Act ( 410 ILCS 517/1 et seq. (West 2016) ).

¶ 10 Additionally, in one of plaintiff's requests to produce, she asked Ingalls to produce any documents that describe statements made by Jones, her family, anyone with knowledge of the events at issue in the complaint, or anyone investigating the events at issue in the complaint. In response, Ingalls stated that it had turned over several responsive documents already and directed plaintiff to an attached privilege log, in which it claimed privilege on the same six documents on the same bases as it did in its response to plaintiff's interrogatory.

¶ 11 Plaintiff subsequently filed a motion to compel the production of the allegedly privileged documents, arguing that, "[i]n light of Illinois broad discovery rules, if there is any doubt" about whether the documents should be produced, they should be produced. The circuit court ordered Ingalls to articulate the reasons for its claims of privilege and provide the documents for an in camera review.¹ Shortly thereafter, Ingalls produced the security department incident report and the privilege file of Dr. Rita Oganwu for plaintiff, and it accordingly updated its privilege log to include only the four remaining documents. Ingalls provided the remaining documents for the court's review.

¶ 12 All four documents contain the heading "Healthcare Safety Zone Portal" on the top of the page, and all four bear the name "Clarity Group, Inc. Copyright" at the bottom of the page. Generally, incident review No. 25472 detailed an incident that occurred on November 18, 2013, and its aftermath involving Jones's blood glucose levels while she was hospitalized at Ingalls. The document appears to have been created on December 5, 2013. Incident review No. 25753 detailed an incident involving Jones that occurred while she was hospitalized at Ingalls, but does not relate to her blood glucose treatment around November 17 and 18, 2013. The document appears to have been created on January 8, 2014. Complaint No. 5101 detailed an in-person complaint made by Gladys Galmore, the daughter of Jones, to an employee at Ingalls regarding the treatment administered to Jones on November 18, 2013. Galmore's complaint itself was received by Ingalls on December 4, 2013, and it appears the report was created on December 11, 2013. Lastly, complaint No. 5478 detailed an incident not relevant to this appeal.

¶ 13 Ingalls also responded to the circuit court's order and plaintiff's motion, arguing that, under the Medical Studies Act and the Patient Safety Act, the documents were privileged. Under the Patient Safety Act, Ingalls posited that the documents constituted patient safety work product, as they were assembled for submission to a patient safety organization for the purpose of improving patient safety and the quality of health care.

¶ 14 Ingalls attached an affidavit from Linda Conway, its associate general counsel, who averred that, in 2009, Ingalls contracted with Clarity Patient Safety Organization (Clarity), a federally certified patient safety organization, to conduct activities to improve the hospital's patient safety and quality of health care pursuant to the Patient Safety Act. Conway asserted that the documents at issue were created, prepared, and generated for submission to Clarity for those purposes. According to Conway, the documents were patient safety work product, and the healthcare safety zone portal provided the means for Ingalls to report such work product to Clarity.

¶ 15 Plaintiff did not reply to Ingalls's filing.

¶ 16 On November 28, 2016, following a hearing on plaintiff's motion to compel, the circuit court granted the motion in part and denied the motion in part, requiring Ingalls to disclose only the portions of the documents that it had circled, which were parts of incident review No. 25472, incident review No. 25753, and complaint No. 5101. The court determined that the information it circled was "obtained prior to the peer review" and thus discoverable. Ingalls's attorney posited that, while that may be the standard under the Illinois Medical Studies Act, it was not under the federal Patient Safety Act, which required only that the work product be assembled for purposes of reporting to a patient safety organization and actually be reported. The circuit court responded that, unless the information in the documents had been tendered to plaintiff in some other form, such as medical records, Ingalls could not broadly assert a privilege on the information circled in the documents. The court observed that the documents contained "some of plaintiff's medical history" and conversations with her family and that Ingalls...