Zangara v. Advocate Christ Med. Ctr.

2011 IL App (1st) 091,911

951 N.E.2d 1143

351 Ill.Dec. 479

Joseph ZANGARA, Plaintiff–Appellants,

v.ADVOCATE CHRIST MEDICAL CENTER; Paul Gordon; Ajay Parikh; and Sunil Shah, Defendants–Appellees.Wayne Dziamara, Indi

v. and as Special Adm'r of the Estate of Zigmund Dziamara, Deceased, Plaintiff–Appellant,

v.Advocate Christ Medical Center, an Illinois Corporation, a/k/a Advocate Health and Hospitals Corporation, Defendant–Appellee (Manor Care of Palos Heights (West), IL, LLC, a Foreign Corporation, Defendant).

Nos. 1–09–1911

1–09–1914.

Appellate Court of Illinois, First District, Sixth Division.

June 10, 2011.Rehearing Denied July 24, 2011.As Modified Upon Denial of Rehearing July 22, 2011.

Michael W. Rathsack, Chicago (Stephan D. Blandin, Antonio M. Romanucci, Michael W. Rathsack, of counsel), for Appellant.Jenny O. Blake, Mehreen S. Sherwani, Lowis & Gellen LLP, Chicago, for Appellee Advocate Christ Medical Center.

Robert Marc Chemers, Alan J. Schumacher, Scott L. Howie, Pretzel & Stouffer, Chartered, Chicago, for Appellee Ajay Parikh, M.D.Helaine Wachs Heydemann, Kathy P. Fox, Wildman Harrold, Chicago, for Appellee Paul Gordon.

OPINION MODIFIED UPON DENIAL OF REHEARING

Justice CAHILL delivered the judgment of the court, with opinion.

[351 Ill.Dec. 481] ¶ 1 We believe the primary issue in this case is controlled by our supreme court decision in Roach v. Springfield Clinic, 157 Ill.2d 29, 191 Ill.Dec. 1, 623 N.E.2d 246 (1993). Plaintiffs Joseph Zangara and Zigmund Dziamara appeal the trial court's judgement dismissing their claims for their failure to attach an attorney affidavit and a health care professional's report to their complaints as required by section 2–622 of the Code of Civil Procedure (Code) (735 ILCS 5/2–622 (West 2008)). Plaintiffs contend that their expert was unable to decide whether there was a meritorious cause of action because the trial court ruled that the information needed for the expert's opinion was privileged under section 8–2101 of the Code, commonly known as the Medical Studies Act (Act) (735 ILCS 5/8–2101 (West 2008)). We reverse and remand.

¶ 2 Joseph Zangara and Zigmund Dziamara contracted methicillin-resistant staphylococcus aureas (MRSA) in 2005 while they were patients at defendant Advocate Christ Medical Center (Advocate). Dziamara died and Zangara survived.

¶ 3 On November 20, 2007, before filing suit, Zangara filed a petition under Illinois Supreme Court Rule 224 (eff. May 30, 2008) for discovery, naming Advocate and asking for: infection-control data and statistics, policies and procedures for the control and treatment of infectious diseases and a list of all patients who contracted MRSA 90 days before Zangara was admitted to Advocate.

¶ 4 On December 18, 2007, Zangara filed a complaint against Advocate and Paul Gordon, M.D., Ajay Parikh, M.D., and Sunil Shah, O.D., alleging negligence. Dziamara's estate brought a similar medical malpractice action against Advocate and Manor Health Services. The complaints essentially allege that Advocate was negligent in its management of infection and infection-control procedures. Zangara's complaint also alleges among other claims that the individual doctors were negligent in failing to recognize he was at risk for developing an MRSA infection.

¶ 5 Neither of plaintiffs' complaints included a section 2–622 report. Instead, plaintiffs' counsel for both cases attached an affidavit to the complaint under section 2–622(a)(3) (735 ILCS 5/2–622 (West 2008)), stating that they were “unable to obtain a consultation with a licensed health care professional required by Paragraph 1 of Section 2–622 * * * due to the lack of compliance with requests for records made pursuant to Part 20 of Article VIII of the Illinois Code of Civil Procedure, as well as the need for further discovery in order to determine proper defendants in this cause of action.”

¶ 6 On March 18, 2008, Zangara sent a letter to Advocate, requesting production of the documents requested in the original petition for discovery. Advocate did not respond.

¶ 7 On March 26, 2008, the court entered an order entitling Zangara “to all discovery requests regarding any MRSA cases at Advocate Christ pursuant to plaintiff's petition.”

[951 N.E.2d 1146 , 351 Ill.Dec. 482]

¶ 8 On April 9, 2008, Zangara filed a motion to compel Advocate to respond to the petition for discovery.

¶ 9 On April 14, 2008, Advocate and Dr. Parikh filed motions to dismiss Zangara's complaint under section 2–619 of the Code (735 ILCS 5/2–619 (West 2008)) for failing to file a certificate of merit authored by a healthcare professional in accordance with section 2–622 of the Code. Advocate's motion argued that Advocate had responded to Zangara's request for his own medical records by sending them on November 7, 2007, before the lawsuit was filed. Advocate further argued that Zangara's petition for discovery “requested a number of documents and other items that are not properly obtained through such a proceeding” as they “fall outside the scope of” sections 2–622(a)(3) and 8–2001. Following a hearing on the motions to dismiss and Zangara's motion to compel, the court denied the motions to dismiss and gave Zangara until May 19, 2008, to file his section 2–622 report.

¶ 10 On April 18, 2008, plaintiffs filed separate motions on Advocate, requesting production of documents for six months before plaintiffs' hospitalization concerning: infection-control data, policies, procedures, rules, regulations, guidelines and standards relating to MRSA. Given the commonality of the suits, Zangara's and Dziamara's cases were consolidated and transferred to the same trial judge for discovery purposes.

¶ 11 On May 19, 2008, the court entered orders giving Advocate until June 19, 2008, to produce and answer plaintiffs' request for production. Advocate produced the indices of its policies and procedures manual for the infection-control/epidemiology department in effect during the time period in question. Advocate objected to production of all requests for information about MRSA and submitted a privilege log. Advocate asserted that the Medical Studies Act barred production of committee surgical site infections charts from 2005 through 2006 and all Advocate infection-control meeting minutes “drafted at the request of the Performance Improvement Committee for the purpose of evaluating and improving patient care.”

¶ 12 At a hearing plaintiffs' counsel explained that she needed to know the number of MRSA infections so plaintiffs' expert could render an opinion under section 2–622 as to whether Advocate was negligent for failing to notify the public or plaintiffs of an MRSA outbreak or close the hospital. When the court asked why the number of MRSA outbreaks was privileged under the Act, defense counsel responded that “an infectious disease committee investigates any kind of infectious disease outbreaks in the hospital, so their investigation is privileged under the Medical Studies Act. That's why.” But, defense counsel admitted that documents generated “in the general course of the hospital's business” were not protected by the Act. The court said that under Tomczak v. Ingalls Memorial Hospital, 359 Ill.App.3d 448, 295 Ill.Dec. 968, 834 N.E.2d 549 (2005), plaintiffs “are entitled to know all the number of outbreaks” and that Advocate's records could not be considered privileged merely because they were discussed in a peer-review meeting. The court acknowledged that plaintiffs needed to file a section 2–622 report but said that “[plaintiffs'] expert doesn't have enough information.” The court found Advocate's privilege log insufficient and ordered Advocate to file an amended privilege log “clearly stating the reasons for claiming privilege under the Medical Studies Act.” The court also continued defendants' motion to dismiss.

¶ 13 Advocate submitted 27 pages of documents to the court for in camera inspection

[351 Ill.Dec. 483 , 951 N.E.2d 1147]

Rather than filing an amended privilege log, Advocate filed the affidavit of nurse Karen Martin, manager of infection control at Advocate. Martin said the function of the infection-control committee is to investigate and make recommendations for the prevention and control of infections within the hospital. She said that 4 out of the 27 pages of documents submitted to the court for in camera review were created at the request of the committee “to assess and investigate surgical infection rates for the purpose of reducing morbidity and mortality and to improve the quality of patient care at the hospital.” Another page was created as part of an “assessment and investigation of infections during the time period between September 2005 to December 2005.” Another nine pages appear to be summaries of several committee meetings from August 12, 2005, through January 13, 2006. The remaining pages comprise a PowerPoint presentation with the title “Surgical Site Infection Prevention.” Martin said the documents were generated exclusively for the committee for the purpose of improving patient care. Plaintiffs moved to strike Martin's affidavit and for a finding that the Act did not apply to protect documents listing the cases of MRSA during the requested period.

¶ 14 At a September 19, 2008, hearing the court noted that the allegedly privileged documents Advocate supplied provided no details on MRSA infections. The court told Advocate's counsel to “go through all your hospital records in nine months in infectious disease patients and count how many [cases of MRSA] there were. * * * [Y]ou can get that information from a separate source that has nothing to do with the committee.” The court's written order reads: “Defendant Advocate to produce documents, information and amended affidavit as required per transcript of hearing.”

¶ 15 When Advocate failed to disclose the number of MRSA incidents, plaintiffs asked the court to compel production of the MRSA information requested in plaintiffs' original production...