A state appellate court has ruled a self-insured health care organization must produce insurance documents it says are confidential as part of discovery in a medical malpractice suit.

The suit was filed in 2013 against Advocate Health and other defendants by the estate of a woman who died after being hospitalized at Advocate South Suburban Hospital in Hazel Crest. During discovery, attorneys for the plaintiff, Anthony Brown, requested copies of Advocate’s insurance policies. The company responded that there are no policies, because it is self-insured.

In 2016, Advocate was ordered to turn over its full insurance trust agreement related to the information sought by the plaintiff. The judge in the case issued a protective order providing that any documents Advocate produced would remain confidential and be used strictly for the litigation. Advocate refused and asked to be held in friendly contempt. The circuit court obliged and imposed a $100 fine, which was waived by the appellate court.

One it was held in contempt, Advocate was able to take the matter to appeal, an avenue not open to argue a discovery order. In its appeal, the company argued that the requested documents are irrelevant to the case and that the trust agreement is not an insurance document, but rather a confidential financial document. The company cited case law it said demonstrated evidence informing a jury a defendant is insured is generally inadmissible.

Two of the three justices on the Illinois First District Appellate Court panel hearing the case, however, saw it differently, finding even inadmissible evidence may be relevant to discovery, as it could lead to admissible evidence, such as whether a relationship existed between defendants.

In a dissenting opinion, Justice Robert E. Gordon said there is nothing in the record indicating there may be admissible evidence hiding in the trust document. What is likely in the document, he said, are trade secrets such as financial formulas and how payments by an outside insurer are triggered.

“I doubt whether Advocate would want its employees, physicians or other medical personnel to know the intricate matters contained in this trust,” he wrote. “This is basically a confidential document with trade secrets that is not relevant in any malpractice case before the entry of judgment and may not even be relevant after judgment if Advocate has the funds to … satisfy any judgment entered against it.”

Writing for the majority, Justice Jesse Reyes said there is no way the circuit judge could evaluate whether the document is relevant unless permitted to inspect it. There was no order to turn over the document to the plaintiff, he noted, only to permit the court to review it. The majority also noted the protective order that forbids the use or sharing of the document outside the context of the case.

 “Advocate has provided little to no information regarding the scope or nature of the self-insured trust and related documents,” Reyes wrote. “Even if it is not a standard insurance policy per se, Advocate’s self-insured trust presumably exists – at least indirectly – for the ultimate benefit of parties such as the plaintiff. …Advocate has not cited any case, statute or rule that plainly exempts it from production of its insurance-related documents.”

The majority also noted that Advocate had said at an earlier hearing it had $12.5 million in coverage for the plaintiff’s claim. That statement, the court said, “belies its efforts to distinguish its trust document from a traditional liability policy.”

Justice Bertina E. Lampkin concurred with the majority opinion.

Advocate was represented in the action by attorneys with the firm of Johnson & Bell, of Chicago, according to Cook County court records.

Brown was represented by AMB Law Group, of Chicago.

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Cook County Circuit Court Illinois First District Appellate Court Johnson & Bell, Ltd.

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