delivered the opinion of the court:
J. Sсott Myers, attorney for defendants Marriott Senior Living Services, Inc., d/b/a Marriott Brighton Gardens of Hoffman Estates (Marriott), and Odessa McArdle, appeals from an order of the circuit court which held him in contempt for refusing to produce certain documents demanded by plaintiff, Mary Pietro, during discovery. Defense counsel was assessed a $100 fine for his refusal to comply with the court’s order. On appeal, counsel contends that the requested documents are protected under the Code of Civil Procedure (Medical Studies Act оr the Act) (735 ILCS 5/8 — 2101 et seq. (West 2002)) and the attorney-client privilege (166 Ill. 2d R. 201). For the following reasons, we affirm the circuit court’s ruling with respect to the documents and vacate the finding of contempt.
BACKGROUND
. Plaintiff brought this action against defendants Marriott and McArdle to recover damages resulting from their alleged negligence in rendering care to plaintiff’s father, Raymond Morman, while he was a resident at Marriott’s assisted living facility. Plaintiff alleged that defendants failed to provide necessary emergency medical care, including cardiopulmonary rеsuscitation, and failed to call 911 for assistance; Sohail Agha, a resident assistant, and Laura Dudek-Konar, a nurse, were also named as respondents in discovery. 1 During the course of written discovery, plaintiff sought the production of various documents. Defendants objected, asserting that these documents were privileged under the attorney-client privilege and the Act (735 ILCS 5/8 — 2101 et seq. (West 2002)). The documents at issue on appeal include witness statements from McArdle, Dudek-Konar, and Agha, as well as three other documents referred to as documents 2, 14, and 137.
Defendants filed a privilege log, which the court initially held to be insufficient. Subsequently, they were granted leave to file an amended log. According to the amended log, the documents are all contained in McArdle’s personnel or confidential personnel file. Defendants asserted that the handwritten statements of McArdle and Agha were generated during the course of a peer review. No privilege was asserted with respect to any statement of Dudek-Konar. It was asserted that document 2 was an undated, handwrittеn note, authored in contemplation of litigation and protected by the attorney-client privilege. With respect to document 14, it was asserted that it was an unidentified handwritten note created on June 28, 2000, and protected by the attorney-client privilege. It was further stated that document 137 was preliminary research of events generated during the course of a peer review and in contemplation of litigation. No author or date was provided in the log for this document.
Defendants also supported their assertions of privilege with affidavits from the following individuals: Diana Barthel, the general manager and administrator of Marriott; Ruth Raine, a special service supervisor for Marriott’s claim services department; and McArdle, Dudek-Konar, and Agha. According to Barthel’s affidavit, she was responsible for investigating all incidents which occurred at the facility and reporting the results of said investigations to Marriott’s risk management/in-house legal department with her analysis. She stated that in accordance with Marriott’s risk management policy and as a member of its quality assurance committee, she requested that McArdle, Dudek-Konar, and Agha prepare written statements regarding their involvement in Mr. Morman’s care on the date of the occurrence. The purpose for the written statement was “to protect the interests of Marriott and its employees should a lawsuit be filed,” and for quality assurance purposes. Additionally, she stated thát the statements were reviewed by other department heads at Marriott who are also members of its quality assurance committee. With respect to documents 2 and 14, she stated that they were prepared by Beth Hovius, Marriott’s assisted living manager. These documents were included in McArdle’s personnel file at Barthel’s direction during the course of her investigation and in contemplation of litigation.
According to Raine’s affidavit, it was the policy of Marriott’s claim services department to defend and indemnify its employees against litigation arising out of the scope of their employment. She stated that the department relied upon the analysis and opinions of Barthel when formulаting its position regarding this occurrence and the anticipated litigation. She further stated that Marriott selected a law firm to protect the interests of Marriott and its employees in accordance with its risk management policy.
McArdle, Dudek-Konar, and Agha filed identical affidavits. Therein, they stated that on May 30, 2000, the morning of the incident, Barthel asked them to prepare a written statement regarding their involvement in Mr. Morman’s care on the date of the occurrence. They further stated that they “understood this request was made for quality assurance purposes and because Marriott anticipated litigation resulting from this incident.” It was also their understanding that “Barthel would forward same to Marriott’s Risk Management/In-House Legal Department for the protection of both Marriott and [their] interests in the event a lawsuit was filed.”
The trial court was also supplied with the deposition testimony of Barthel and Raine. According to Barthel’s deposition, members of the quality assurance committee, also known as the resident care committee, reviewed the statements together on the day of the incident. The statements were prepared prior to their meeting, and no formal committee ever met. Raine testified that Marriott had a self-insured retention under its liability policy in the amount of $100,000.
On November 19, 2002, after an in camera inspection, the trial court held a hearing on the disputed documents. The court held that defendants failed to establish a privilege under the Act as to the witness statements of McArdle, Dudek-Konar and Agha. The court found that the privilege log lacked elements necessаry to assert such a privilege. Additionally, the court found that the statements at issue were generated prior to any quality assurance committee meeting and that there was no evidence of a request by the committee for the information. The court further found that McArdle, Dudek-Konar and Agha admitted knowledge that the statements they made would be shared with others for quality assurance purposes. The court held that such knowledge defeated the attorney-client privilege because the witnesses had no expectatiоn of privacy.
With respect to documents 2 and 14, the trial court found that the attorney-client privilege was waived by Marriott’s placement of these materials in McArdle’s personnel file. With respect to document 137, the trial court found that the amended privilege log was inadequate and lacked the requisite information to sustain defendants’ burden of proof. After the trial court ruled, defense counsel refused to produce the disputed documents and was held in contempt of court and fined $100. Defense counsel timely apрealed.
ANALYSIS
Medical Studies Act Privilege
Initially, we consider plaintiffs contention that the Act does not apply to Marriott because, as an assisted living facility, it is not one of the enumerated entities protected under the statute. The issue of whether an assisted living facility falls within the purview of the Act is one of first impression in the state. In answering that question, we are guided by the rules of statutory construction. The primary goal of statutory construction is to ascertain and give effect to the intent of the legislature, and the most reliable indication of the legislature’s intеnt is the plain language of the statute. Metzger v. DaRosa,
The Act provides in relevant part:
“All information, interviews, reports, statements, memoranda, recommendations, letters of referencе or other third party confidential assessments of a health care practitioner’s professional competence, or other data of the Illinois Department of Public Health, local health departments, the Department of Human Services ***, the Mental Health and Developmental Disabilities Medical Review Board, Illinois State Medical Society, allied medical societies, health maintenance organizations, medical organizations under contract with health maintenance organizations or with insurance or other health care delivery entities or facilities, tissue banks, organ procurement agencies, physician-owned insurance companies and their agents, committees of ambulatory surgical treatment centers or post-surgical recovery centers or their medical staffs, or committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committеes, or their designees (but no medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care or increasing organ and tissue donation, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges or agreements for services ***.” 735 ILCS 5/8 — 2101 (West 2002).
The Act further providеs that such privileged material “shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person.” 735 ILCS 5/8 — 2102 (West 2002).
Plaintiff is correct that the Act does not protect all information used for quality control, but only that information belonging to certain entities and categories of organizations. Niven v. Siqueira,
Additionally, we find that the historical and statutory notes provide support for our interpretation. On numerous occasions, the legislature has chosen to amend the Act to include additional entities within its purview. See, e.g., Public Act 83 — 1001 (Pub. Act 83 — 1001, eff. July 1, 1984) (added datа of the Illinois Department of Mental Health and Developmental Disabilities); Public Act 84 — 544 (Pub. Act 84 — 544, eff. January 1, 1986) (added data of health maintenance organizations and medical organizations under contract with health maintenance organizations); Public Act 84 — 902 (Pub. Act 84 — 902, eff. January 1, 1986) (added data of the Mental Health and Developmental Disabilities Medical Review Board); Public Act 89 — 393 (Pub. Act 89 — 393, eff. August 20, 1995) (included data of tissue banks and organ procurement agencies). Had the legislature intended to include health care facilities such as nursing homes, lоng-term care facilities, or assisted living facilities within its purview, it could have done so explicitly.
Indeed, the legislature has addressed the privileged nature of quality assurance information at these types of facilities under other specific statutory schemes. For example, section 4 of the Long-term Care Peer Review and Quality Assessment and Assurance Protection Act (745 ILCS 55/4 (West 2002)) provides that proceedings and communications of peer review or quality control committees of long-term care providers are рrivileged and confidential. However, under the Assisted Living and Shared Housing Act (210 ILCS 9/1 et seq. (West 2002)), which regulates assisted living facilities, the legislature has made no provision regarding the privileged nature of quality assurance information. Accordingly, the legislature intended to address these types of facilities distinctly from those encompassed under the Medical Studies Act. For all of the foregoing reasons, assisted living facilities are not covered entities under the Act.
Even if we were to find that the legislature intended to include assisted living facilities under the Act, Marriott’s resident care committee is not consistent with the type of committee envisioned by the Act. The purpose of the Act is to ensure that members of the medical profession will effectively engage in self-evaluation of their peers in the interest of improving the quality of health care. Roach v. Springfield Clinic,
Here, while there were two nurses who were members of the resident care committee, the other members included a corporate administrator, a director of food and beverages, a director of facilities management, and other people as needed. Accordingly, while individual nurses may have been capable оf peer review, this particular committee was not qualified to provide professional self-evaluation or render opinions regarding the adequacy of the patient care rendered to Mr. Morman as envisioned by the Act.
Furthermore, the Act does not protect all information used for internal quality control. Information initiated, created, prepared or generated by a peer-review committee is privileged under the Act, even if later disseminated outside the peer-review process. Webb v. Mount Sinаi Hospital & Medical Center of Chicago, Inc.,
The burden of establishing the applicability of the privilege rests with the party seeking to invoke the privilege. Roach,
Defense counsel contends that the written statements of McArdle, Dudek-Konar and Agha were privileged under the Act because they were “secured for purposes of quality assurance and for the evaluation and improvement of patient care.” Additionally, counsel contends that document 137 was privileged because it was prepared “in conjunction with the quаlity assurance committee’s proceedings.” The record is silent as to when, if ever, the quality assurance committee formally met for purposes of rendering opinions regarding this incident. The only information provided reflects that the documents were made part of McArdle’s personnel file and that, at the time the statements were prepared, no formal committee had convened. Nor was there any evidence presented that the committee requested these statements. Barthel’s affidavit stated that the witnеss statements were “reviewed” by “members” of the quality assurance committee and that she shared the “results” of her investigation into the incident with the committee. Therefore, it was not against the manifest weight of the evidence for the trial court to find that the statements were not “part of’ the internal quality control process.
Our courts have repeatedly distinguished between nonprivileged information reported to a committee and privileged information generated by or requested by a committee. See, e.g., Chicago Trust Co.,
With respect to document 137, no information was provided as to the author of the document or when the document was prepared or by whom the document was prepared. Supreme Court Rule 201(n) (166 Ill. 2d R. 201(n)) requires that the privilege log describe “the nature of the documents *** not produced or disclosed” and “the exact privilege which is being claimed.” The burden was on Marriоtt to establish why the Act was properly invoked. 166 Ill. 2d R. 201(n). Without this information, it was not unreasonable for the trial court to find that there was insufficient information on which to base a privilege under the Act. Furthermore, the trial court had an opportunity to view the document in camera and the document does not indicate by whom it was prepared or to whom it was addressed.
Attorney-Client or Insurer-Insured Privilege
Defense counsel contends that the statements of McArdle, Dudek-Konar and Agha are protected by the attorney-client privilege or the insurer-insured privilege. Supreme Court Rule 201(b)(2) provides, in pertinent part:
“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” 166 Ill. 2d R. 201(b)(2).
The attorney-client privilege exists for thе purpose of encouraging and promoting the full and frank consultation between a client and his or her legal advisor by removing the fear of compelled disclosure of information. Consolidation Coal Co. v. Bucyrus-Erie Co.,
Our supreme court has also stated that this privilege extends to communications between an insurer and an insured, where the insurer is under an obligation to defend the insured. People v. Ryan,
In this context, it has been stated that to extend the attorney-client privilege, the party asserting the privilege must prove: (1) the identity of the insured; (2) the identity of the insurance carrier; (3) the duty to defend a lawsuit; and (4) that a communication was made between the insured and an agent of the insurer. Chicago Trust Co.,
Here, defense counsel maintains that Marriott and its employees are entitled to extend the privilege based upon Marriott’s status as a self-insurer with a self-insured retention of $100,000. He maintains that where Marriott has a duty to defend its employees against any litigation arising out of the scope of their employment, the witness statements are confidential communicаtions between an insured (employees McArdle, Dudek-Konar and Agha) and its insurer (Marriott). Defendants presented an affidavit from Marriott’s claims handler stating that Marriott has a duty to defend its employees. They also provided the court with a copy of Marriott’s insurance policy endorsement which states that Marriott employees are additional insureds under the policy while acting within the scope of their duties.
The question of whether the privilege applies to an insured’s communication to a self-insurer rather than an insurance carrier has never been squarely addressed in Illinois. While the issue has been raised, the court has based its decision on other grounds. See, e.g., Chicago Trust Co.,
Here, we need not determine whеther defendants are entitled to extend the privilege to a self-insurer because defendants failed to meet the threshold burden of proving that the statements remained confidential. McArdle, Dudek-Konar and Agha never stated in their affidavits that they intended their statements to remain confidential. They knew that their statements were not only prepared for transmittal to the risk management/in-house legal counsel, but were prepared for purposes of quality control. As such, these employees knew that their actual statements would not remain confidential with access only provided to the claims administrators, risk managers/in-house counsel or outside counsel. By disseminating these statements outside these confines, these employees had no expectation of privacy, a necessary element of the attorney-client privilege and its offshoot, the insurer-insured privilege. To allow a broader scope of dissemination would effectively swallow the rule, which provides for liberal discovery. Buckman,
We next address defense counsel’s argument that documents 2, 14, and 137 are privileged because they were prepared in contemplation of litigation. According to Barthel’s affidavit, documents 2 and 14 were prepared by Beth Hovius, Marriott’s assisted living manager, and were included in McArdle’s personnel file at Barthel’s direction during the course of her investigation and in contemplation of litigation. As stated in Ryan, the privilege applies where the communication is made by the insured to the insurer or its agent for the dominant purpose of protecting the interests of the insured. Ryan,
Here, it has not been shown that these documents were drafted by Hovius (the insured) in order to protect her interests. See Chicago Trust Co.,
Contempt Order
Lastly, we address the court’s contempt order. The record reveals that defense counsel’s conduct was not contemptuous and that the trial court entered the contеmpt order at counsel’s request as the proper procedure to seek immediate appeal of a trial court’s discovery order. Buckman,
Accordingly, for the foregoing reasons, we affirm the trial court’s ruling with respect to the disputed documents at issue on appeal and vacate the trial court’s contempt order.
Affirmed in part; vacated in part.
QUINN, P.J., and GREIMAN, J., concur.
Notes
On July 15, 2003, these individuals were converted from respondents in discovery to defendants.