delivered the opinion of the court:
In this case we consider the propriety of the trial court’s determination that documents withheld from discovery by defendants were not privileged under that part of the Code of Civil Procedure commonly known as the Medical Studies Act (735 ILCS 5/8 — 2101 et seq. (West 2000)) (the Act). In response to plaintiff’s discovery requests, defendants claimed that certain documents were privileged because they were part of an internal peer-review conducted by the risk management committee at Mount Sinai Hospital and Medical Center of Chicago, Inc. (Mt. Sinai). After an in camera review of the documents and consideration of the affidavits, briefs, and arguments offered by the parties, the trial court found that the documents were not privileged and ordered that defendants produce them. Defendants asked the trial court to reconsider its decision. The trial court denied that motion and found defendants in contempt of court for their failure to produce the documents. The trial court additionally fined defendants $50. Payment of the fine was stayed pending disposition of appeal.
On July 28, 2000, plaintiff filed a complaint against defendants, two additional doctors, and another medical facility, seeking damages under the Illinois Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2000)) and the Illinois Survival Act (755 ILCS 5/27 — 6 (West 2000)). The complaint alleged that Ashley Webb was admitted to Mt. Sinai on July 28, 1998, “as an in-patient to rule out hepatitis and treatment for dehydration.” Williams was one of her treating physicians. Ashley Webb died at Mt. Sinai on July 29, 1998. The complaint alleged her death was due to defendants’ negligence. The case was removed to the federal district court, where the claims against all defendants except Mt. Sinai and Williams were dismissed. Finding that it lacked jurisdiction over the claims, the district court remanded the case to the circuit court.
During discovery, plaintiff served interrogatories and requests to produce on defendants. In response to several inquiries, defendants explained that they possessed certain documents responsive to the requests but that those documents were privileged under the Act. The documents at issue in this appeal are a “Patient Safety Digest Professional Peer Review Occurrence Summary” (Occurrence Summary) authored by Lori Notowitz, R.N., M.J., the former director of risk management at Mt. Sinai, and four memoranda “from” Notowitz “to” the risk management committee (collectively the memoranda). The memoranda summarized her interviews with four doctors, including Williams. Two of the memoranda were dated August 4, 1998. The other two were dated July 29, 1998.
Upon receiving defendants’ objеctions, plaintiff filed a “Motion for Ruling on Defendants’ Medical Studies and Work Product Objections,” requesting in camera review of the documents. Rather than immediately offering the documents for in camera review, defendants offered the affidavit of Notowitz. According to the affidavit, in July and August 1998, Notowitz was the director of risk management for Mt. Sinai. Part of her duties was “to improve patient care and safety” at Mt. Sinai “through risk management techniques, which included, among other things, [her] participation in peer review committees.” She was also responsible “for loss prevention and managing claims” and was “in the decision-making chain in settling claims against” Mt. Sinai. She was also a member of the risk management committee, which “was a peer review committee composed largely of physicians, including the President of the Medical Staff.” The purpose of the committee “was to review patient care incidents and related systems issues in an effort to improve patient safety, the quality of patient cаre, and to reduce morbidity and mortality.” Notowitz prepared the documents at issue in this case and interviewed the various doctors mentioned in those documents “at the specific direction of the Risk Management Committee *** only after that Committee had received a report of Ashley Webb’s death less than 24 hours after her admission to the Hospital and after that Committee had undertaken a formal review of that occurrence.” The documents were “utilized solely for the purposes of the investigation of the Risk Management Committee ***. They were presented solely to the Risk Management Committee ***. They were utilized solely for peer review, patient safety, and quality improvement purposes.” They were kept separate from any litigation files and were not shared with Mt. Sinai’s attorneys.
In reply, plaintiff claimed that defendants’ affidavit was insufficient to show that the privilege applied. Specifically, plaintiff complained that the evidence failed to show “when the ‘peer review’ or ‘quality improvement committee’ first met to begin investigating Ashley Webb’s death.” The trial court ordered defendants to file supplemental affidavits and provide the documents for in camera review.
Notowitz’s second affidavit added that “[pjatient care incidents requiring review by the Risk [M]anagement Committee were brought to the attention of the Committee by a variety of sources, including individual Committee members and department peer review committees” and that “where an event occurred between scheduled meetings of the Risk Management Committee, the Chairman of that committee had the authority to initiate an investigation and review of the occurrence” on behalf of the committee. On July 29, 1998, after being notified of Ashley Webb’s death, the chairman of the risk management committee instructed Notowitz “to initiate an investigation and review of the occurrence” on behalf of the committee. The memoranda documenting Notowitz’s interviews with doctors Perkins, Chaparro, Williams, and Ojo were prepared to “utilize in the preparation” of the Occurrence Summary. “The memoranda themselves were not distributed to members of the risk management committee. In fact, they were shared with nobody.” Notowitz maintained minutes of all of the meetings of the risk management committee, but she was unaware of what became of those minutes after she left Mt. Sinai and “relinquished control of them to [her] successor.” She did not recall the date of the meeting of the risk management committee in which she discussed her findings and recommendations in relation to Ashley Webb. She remembered, however, that, a meeting had occurred.
After reviewing the affidavits and the documents, the trial court concluded that the documents were not privileged under the Act. The court explained:
“Inspection of the actual documents undoubtedly reveals that their purpose encompassed ‘an effort to improve patient safety, the quality of patient care, and to reduce morbidity and mortality.’ However, this inspection аlso reveals that the processes of peer-review and quality improvement were not the sole purpose of their generation. Each of the documents authored by Notowitz clearly anticipates litigation. The Peer Review Occurrence Summary advises the Risk Management Committee that ‘the risk of litigation is high.’ Each memo pertaining to an interview begins, ‘You have asked me to review the care of Ashley Webb to identify any issues of liability or potential patient safety.’ Regardless as to whеther these documents were ever used in a peer-review process, such statements indicate that they were, at least in part, created to render legal opinions or weigh potential liability risk. Thus, since they were not generated specifically for peer-review, these documents are not protected by the privilege allowed by the Illinois Medical Studies Act.” (Emphasis added.)
Defendants filed a motion for reconsideration of the trial court’s order. Alternatively, defendants sought аn amended order limiting production to redacted documents or a contempt order that would allow defendants to appeal the trial court’s order.
After plaintiff filed her response to defendants’ motion for reconsideration, the trial court granted defendants’ request for additional time to file a supplemental affidavit. Specifically the trial court instructed defendants that in order to reconsider its findings, the trial court sought information regarding Notowitz’s use of the phrases “liability” and “litigation” in thе documents and proof that “the peer review took place.”
In her third affidavit, Notowitz corrected a previous erroneous statement that the president of the medical staff was chairman of the risk management committee and indicated that the chairman was the vice president of medical affairs at Mt. Sinai. Notowitz explained that the only functions of the risk management committee were “peer review and patient safety.” The committee “did not review or evaluate liability issues or exposure to possible future litigation” in this or any other case “because other Hospital committees were charged specifically with addressing those issues.” The committee had authorized its chairman to act on its behalf and “initiate investigation and review of an occurrence” when such an occurrence happened between regularly scheduled committee meetings. On “7/28/98,” Notowitz informed the chairman of Ashley Webb’s death, and the chairman instructed her “to initiate аn investigation and review of the occurrence” on behalf of the committee. The full committee did not meet before Notowitz began her investigation.
With regard to the references in the memoranda to issues of liability Notowitz explained:
“Insofar as [the memoranda] contain introductory language suggesting that I was to review the care of Ashley Webb to identify ‘any issues of liability,’ that language was included at the specific instruction of Hospital counsel as being necessary to preserve the materials as privileged. Notwithstanding that language, however, I did not conduct these interviews or prepare these memoranda or Exhibit A for the purpose of evaluating potential liability risk or weighing exposure in possible future litigation. Nor die] the Risk Management Committee review the care of Ashley Webb for the purpose of evaluating potential liability risk or weighing exposure in possible future litigation.”
At a hearing on October 17, 2002, defendants requested an evidentiary hearing on the motion to reconsidеr. The trial court denied that request finding that defendants had indicated that they had provided the court with everything it needed. The trial court, however, offered defendants the opportunity to bring Notowitz into court to give a sworn oral statement. Defendants elected not to bring Notowitz into court because of the expense of doing so.
On February 26, 2003, the trial court denied defendants’ motion for reconsideration. The trial court found that the affidavits of Notowitz were “insufficient to establish that the documents she аuthored were privileged” under the Act and emphasized that “ [defendants [had] been given ample opportunity to provide the information necessary for this Court to make the conclusion as a matter of law that the at-issue documents are privileged under the Medical Studies Act,” but failed to do so. Although finding defendants in contempt and imposing “a penalty of $50.00 upon them,” the trial court did not find defendants’ refusal to produce the documents “contemptuous.”
On appeal, defendants contend that the trial court’s finding that the documents were not privileged under the Act was against the manifest weight of the evidence. Defendants claim that the “uncontroverted affidavits of Lori Notowitz *** established that the documents at issue are *** protected.” Specifically, defendants claim that because the plaintiff did not “file any counteraffidavits or other evidentiary material controverting the well-alleged facts of Ms. Notowitz’s affidavit that were based on her personal knowledge,” we must acceрt the facts of Notowitz’s affidavits as true. Regardless of our disposition on the merits, defendants argue, the trial court’s contempt order should be vacated because it was sought in good faith as a means of obtaining review of the trial court’s discovery order.
Plaintiff responds that the trial court’s finding that the documents were not privileged and its order to produce the documents were proper. Plaintiff first argues that Notowitz’s affidavits are inconsistent and need not be accepted as true. Plaintiff next сlaims that “the hospital did not produce any credible evidence to show that the hospital actually conducted a peer review.” Specifically, it points to Mt. Sinai’s failures to produce the minutes of the committee meeting related to Ashley Webb’s death and explain why it did not produce them. Plaintiff contends that, based on the evidence, “we do not know when the purported review took place, i.e., when it began and when it ended, or even if one actually occurred.” Finally, plаintiff argues that the language from the documents, as identified in the trial court’s order, “contravened the hospital’s contention that these were specifically peer review documents.” Plaintiff discounts Notowitz’s explanation of the litigation language in the memoranda by claiming that the “excuse implies that the hospital was, at least at that point, trying to create an attorney-client privilege, and that in turn further implies that Notowitz was engaged in a liability investigation, not a peer review investigation.” Plaintiff does not object to defendants’ request that we vacate the contempt order entered against defendants.
Section 8 — 2101 of the Act provides, in relevant part:
“All information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner’s professional competence, or other data of *** 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 Committees, or their designees (but not the 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 provides:
“Such information, records, reports, statements, notes, memoranda, or other data, 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. The disclosure of any such information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiаlity, nondiscoverability, or nonadmissibility.” 735 ILCS 5/8 — 2102 (West 2002).
The Act’s purpose “is to ensure that members of the medical profession will effectively engage in self-evaluation of their peers in the interest of advancing the quality of health care.” Roach v. Springfield Clinic,
The Act does not protect “all information used for internal quality control” (Grandi v. Shah,
“If the simple act of furnishing a committee with earlier-acquired information were sufficient to cloak that information with the statutory privilege, a hospital could effectively insulate from disclosure virtually all adverse facts known to its medical staff, with the exception of those matters actually contained in a patient’s records. As a result, it would be substantially more difficult for patients to hold hospitals responsible for their wrongdoing through medical malpractice litigation. So protected, those institutions would have scant incentive for advancing the goal of improved patient care. The purpose of the act would be completely subverted.” Roach,157 Ill. 2d at 41-42 .
Similarly, the Act does not “protect against disclosure of information generated before a peer-review process begins or after it ends.” Ardisana v. Northwest Community Hospital, Inc.,
The questiоn of whether the Act’s privilege applies is a question of law that is reviewed de novo; however, the question of whether specific materials are part of an internal quality control “is a factual question,” on which defendants bear the burden. Berry v. West Suburban Hospital Medical Center,
A decision is against the manifest weight of the evidence “if it is wholly unwarranted by the evidence” (Schleyhahn v. Cole,
After our review of Notowitz’s three affidavits and the documents at issue in this appeal, which were prоvided to us under seal, we do not find that Notowitz’s affidavits are completely uncontradicted, as defendants argue. Instead, we find significant discrepancies in the evidence. In the first affidavit, for instance, Notowitz explained that the four memoranda were “presented solely to the Risk Management Committee.” Yet, in her second affidavit, she claims that “[t]he memoranda themselves were not distributed to members of the Risk Management Committee.” Moreover, Notowitz explained the purpose of the risk mаnagement committee as reviewing patient care incidences “in an effort to improve patient safety, the quality of patient care, and to reduce morbidity and mortality.” Yet, the documents contradict this assertion. Specifically, the memoranda include statements that each was prepared at the request of the risk management committee, in part, “to identify any issues of liability.” Similarly, the Occurrence Summary concludes that “the risk of litigation is high.” It was not until after the trial court ruled that thе documents were not privileged under the Act because of this language that Notowitz attempted to explain the statements. It was not unreasonable for the trial court to give more credit to the statements made in the documents and contemporaneously with the events at issue in this case than to the statements made more than four years later after the trial court ruled that the earlier statements rendered the documents unprivileged. Moreover, the trial court’s finding was not inconsistent with the еvidence, which explained that as a part of her duties at Mt. Sinai, Notowitz was responsible “for loss prevention and managing claims” and was “in the decision-making chain in settling claims against” Mt. Sinai.
Contrary to defendants’ claim, Flannery v. Lin,
Furthermore, as the trial court pointed out in this case, there is no indication in the record as to when the risk management committee’s review occurred. While Notowitz claims that her interviews occurred “after that Committee had undertaken a formal review of that occurrence,” there is no evidence showing that all the memoranda and the occurrence report were completed prior to the close of the committee’s review. Moreover, in her third affidavit, Notowitz claimed that she informed the chairman of the risk management committee of Ashley Webb’s death and initiated the investigation and review of that occurrence on “7/28/99,” a date which conflicts with the one given in her earlier affidavits and appears to be the day before Ashley Webb died. As noted above, the timing of the peer review is a crucial fact because the Act does not protect documents generated before the peer-review process begins or after it ends. See Ardisana,
Based on all the evidence, it is not apparent that an оpposite conclusion was warranted. Nor are we convinced that the trial court’s decision was unreasonable, arbitrary, or contrary to the evidence. The trial court’s decision was not against the manifest weight of the evidence, and we affirm the trial court’s order that the documents be produced. This, however, does not mean that we must affirm the finding of contempt against defendants.
It is appropriate for a party to request that a contempt order be entered against it so that party may seek immediate appeal of a trial court’s discovery order. Berry,
Affirmed in part; vacated in part.