Kiersten v. Edward Hospital, 2017 IL App (2d) 160972

In Oct. 2013 Abigail Grosshuesch delivered a premature infant, Isabella, who died Nov. 1, 2013; plaintiff later sued Edward Hospital for wrongful death and survival claims.
After the plaintiff complained, Edward Hospital’s Medical Staff Quality Committee (MSQC) liaison, Nancy Rosenbery, contacted two peer reviewers and recorded notes of their input on Feb. 24–25, 2014.
The MSQC later met in March and April 2014 and considered those reviewer inputs.
Plaintiff served discovery seeking all documents about Isabella’s care; Edward Hospital refused to produce Rosenbery’s Feb. 24–25 notes, asserting the Medical Studies Act peer‑review privilege.
The trial court ordered production, finding the hospital’s affidavits did not establish that the MSQC had authorized the investigation before Rosenbery created the notes; the hospital’s motion to reconsider was denied.
The trial court fined the hospital $1/day for contempt for continued refusal; on appeal the court affirmed production but vacated the contempt finding.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rosenbery’s Feb. 24–25, 2014 notes are privileged under the Medical Studies Act	Notes are not privileged because they were created before any committee or designee authorized a peer‑review investigation	Notes are privileged as part of the MSQC peer‑review process under the hospital’s peer‑review policy (policy enacted 2008)	Not privileged; privilege does not protect documents generated before a committee or its designee authorized investigation; production ordered
Whether civil contempt sanction was appropriate	Plaintiff sought enforcement of discovery order	Hospital contended it acted in good faith while pursuing appellate review of privilege claim	Contempt vacated because hospital’s refusal was in good faith, though production requirement stands

Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993) (privilege attaches only after committee or its designee has authorized peer review; pre‑existing staff knowledge not cloaked)
Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396 (1998) (incident reports created before committee review are discoverable; policy pre‑designating all incidents as peer‑review materials is impermissible)
Berry v. West Suburban Hosp. Med. Ctr., 338 Ill. App. 3d 49 (2003) (documents authored by staff before committee engagement are not information of the committee and thus not privileged)
Ardisana v. Northwest Cmty. Hosp., Inc., 342 Ill. App. 3d 741 (2003) (documents generated during an actual committee investigation may be privileged where affidavit shows committee involvement and documents’ integral role)
Anderson v. Rush‑Copley Med. Ctr., Inc., 385 Ill. App. 3d 167 (2008) (materials gathered during a committee’s ongoing investigation can be privileged; timing of committee engagement is key)
Niven v. Siqueira, 109 Ill. 2d 357 (1985) (purpose of Medical Studies Act is to encourage candid peer review to improve patient care)
Richter v. Diamond, 108 Ill. 2d 265 (1985) (statutory peer‑review privilege intended to protect frank evaluations by medical staff)
Toth v. Jensen, 272 Ill. App. 3d 382 (1995) (documents generated specifically for a peer‑review committee receive protection under the Act)