ELGIN — A state appeals panel has upheld a decision from a lower court ordering Edward Hospital, in Naperville, to produce documents related to the death of an infant.

Abigail K. Grosshuesch had filed a complaint on Oct. 31, 2014, against Edward Hospital regarding the Nov. 1, 2013, death of her newborn daughter. Grosshuesch later amended her complaint, which was filed on Oct. 21, 2015, seeking damages for her daughter’s death and for injuries the child allegedly suffered during the one month she lived.

When Edward Hospital received Grosshuesch’s discovery request, it refused to release the medical staff quality committee (MSQC) liaison’s notes on her consultations with peer reviewers, claiming they were part of MSQC’s investigation and were therefore privileged as per the Medical Studies Act.

The trial court, however, decided the notes must be produced because they had been written before the MSQC met. When Edward Hospital continued to refuse to release the notes, the trial court found it in contempt.

A three-justice panel of the Illinois Second District Appellate Court, which convenes in Elgin, found "Edward Hospital’s argument is contrary to over 20 years of precedent establishing that the Medical Studies Act cannot be used to conceal relevant evidence that was created before a quality-assurance committee or its designee authorized an investigation into a specific incident.” 

Justice Mary Seminara-Schostok authored the decision, with justices Donald C. Hudson and Joseph E. Birkett concurring.

Seminara-Schostok cited several cases in the opinion, including Roach v. Springfield Clinic, Lindsey v. Butterfield Health Care II Inc and Nielson v. Swedish American Hospital. In each of these cases, as described by Seminara-Schostok, the defendants claimed privilege under the Medical Studies Act and the respective courts determined that any documents created prior to the initiation of the peer-review process were not protected by the act and had to be released.

“Based on the foregoing authorities, the Medical Studies Act does not insulate from discovery documents that were generated before a peer-review committee or its designee authorized an investigation of a specific incident,” Seminara-Schostok said. 

Therefore, Seminara-Schostok determined Edward Hospital’s claim that the notes were protected to have no merit and affirmed the circuit court’s order to produce the documents.

Seminara-Schostok, however, vacated the circuit court’s contempt order. 

“Edward Hospital was not contemptuous of the trial court’s authority,” Seminara-Schostok said in the decision. “Rather, its refusal was made in good faith, as it merely sought appellate review of its unsuccessful assertions of privilege. Accordingly, we vacate the trial court’s finding of contempt.”

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