text:
    Barry MNOOKIN, Independent Executor of the Estate of Millicent E. Mnookin, Deceased, Plaintiff-Appellee, v. NORTHWEST COMMUNITY HOSPITAL, an Illinois Corporation; Midwest Anesthesia Partners, Ltd., an Illinois Corporation; Syed Ahmed, M.D., Individually; Karen Leider, R.N., Individually; Barbara Slager, R.N., Individually; Valarie Lawry, R.N., Individually; WomanCare, P.C., an Illinois Corporation; and Sheri Merchant, M.D., Individually, Defendants
    (Northwest Community Hospital, Defendant-Appellant).
    No. 1-17-1107
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    July 27, 2018
    Michelle C. Anderson, Hugh C. Griffin, Jacob Z. Goldstein, and Mathew J. Ennis, of Hall Prangle & Schoonveld, LLC, of Chicago, for appellant.
    Patrick A. Salvi, Andrew Burkavage, and Eirene Salvi, of Salvi, Schostok & Pritchard, P.C., of Chicago, and Robert G. Black, of Naperville, for appellee.
   JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Barry Mnookin, independent executor of the Estate of Millicent E. Mnookin, deceased, filed a medical malpractice and wrongful death action against Northwest Community Hospital (NCH) and other defendants. Plaintiff alleged that after decedent underwent surgery at NCH, she went into cardiac arrest and subsequently passed away. During discovery, plaintiff served written interrogatories and a request for production of documents on NCH. NCH presented a privilege log, asserting a privilege to the listed documents, premised on the Medical Studies Act (Act) ( 735 ILCS 5/8-2101 et seq. (West 2014) ). Plaintiff moved for an in camera inspection of the documents listed in NCH's privilege log, asking the trial court to make a determination on discoverability. After conducting an in camera review of the documents identified in the privilege log, the trial court overruled NCH's claim of privilege under the Act as to 17 of the documents and sustained NCH's claim of privilege as to 7 of the documents. NCH then moved for a finding of "friendly" contempt, in order to appeal the trial court's ruling on the production of the disputed documents. The trial court entered an order holding NCH in civil contempt pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) for its failure to produce the 17 documents in question and sanctioned NCH $500. NCH now appeals. For the following reasons, we reverse the trial court's discovery order, vacate the contempt order, and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 On May 13, 2015, the decedent, while under general anesthesia, allegedly suffered a drop in oxygen levels and cardiac arrest during a surgical procedure at NCH. The decedent was taken to the intensive care unit (ICU) and subsequently passed away on May 28, 2015.

¶ 4 On November 20, 2015, plaintiff filed suit against NCH; Dr. Syed Ahmed, the anesthesiologist during the decedent's surgery; and other defendants. Plaintiff alleged various acts of negligence by Dr. Ahmed, as an employee, agent, or apparent agent of NCH, during the surgery. Plaintiff sent NCH requests for production of documents, and in response, NCH filed a privilege log and then later an amended privilege log. In the amended privilege log, NCH identified 24 separate documents (Document Nos. 1 through 24) as privileged and protected under the Act. Document No. 1 was titled "Quality Management Worksheet Confidential Peer Review Information, Anesthesia and Pain Medicine." Document No. 2 was titled "Quality Management Worksheet, Confidential Peer Review Information Obstetrics/Gynecology." Document No. 3 was titled "OB/GYN Quality Improvement Audit Committee Minutes." Document Nos. 4, 5, and 6 were titled "Anesthesia Quality Improvement Audit Committee Minutes." Document Nos. 7, 8, and 9 were titled "NCH Medical Staff Quality Committee Minutes." Document No. 10 was titled "Sentinel Event Measures of Success Draft Report." Document No. 11 was titled "Sentinel Event Measures of Success Summary Report." Document Nos. 12 through 16 were titled "Root Cause Analysis Framework." Document No. 17 was titled "Patient Safety Event Debriefing Meeting Notes Pursuant to Root Cause Analysis Investigation." Document No. 18 was titled "Organization Self Report to the Joint Commission." Document Nos. 19 through 23 were titled "Meeting Notes Pursuant to Root Cause Analysis Investigation." Document No. 24 was titled "Summary Report to the Joint Commission for Sentinel Event Number 224628."

¶ 5 On September 23, 2016, plaintiff filed a motion asking the trial court to conduct an in camera inspection of all the documents listed in NCH's amended privilege log. On November 4, 2016, the trial court asked NCH to redact the portion of each privileged document for which NCH claimed privilege. In response, NCH redacted the entire text of each document except for printed headings. On December 5, 2016, a hearing was held on the privileged documents. At that hearing, the trial court stated that it had gone through the "remainder of the documents that defendants are claiming privilege; and in substance, I can agree with most of what it is that they're trying to claim falls under the [A]ct." The trial court stated, "The concerns that I have fall with information that had to have been or should have been contained in medical records of some sort that were then used in support of providing data to the group." The trial court went on to say:

"When I look at these forms and I see under, for example, root cause in some spots, there are places where it's clear that information had to have been given from the medical records, and I want to be sure that those medical records had been tendered to the plaintiff, or where there is an indication of abstract, I want to know those records from which the abstract occurs, those record were given to the plaintiff."

¶ 6 The trial court then held a brief recess and afterward stated that it wanted NCH to provide it with more information and set a new hearing date.

¶ 7 On December 22, 2016, plaintiff requested that NCH produce "all non-privileged documentation regarding any and all morbidity and mortality conferences held regarding [the decedent]." NCH filed a response to the motion that included affidavits from Katie Viggiano, Tiffany Ferguson, Claudia Ronayne, and Dr. Alan Loren, all attesting to the privileged nature of the documents described in the amended privilege log. The contents of these affidavits will be discussed in more detail below, but we will briefly discuss them here.

¶ 8 Ronayne, the executive director of service excellence of NCH, stated in her affidavit that the Department of Service Excellence is the quality department of NCH that is responsible for overseeing and implementing activities of the hospital relating to quality improvement, peer review, patient safety and outcomes, and accreditation and certification. She stated that her responsibilities include leading the Quality and Patient Safety Committee, which is a committee whose charge is to monitor, initiate, guide, and coordinate organization-wide quality assessment and improvement and patient safety activities. It is an internal quality committee of the hospital formed for the purpose of internal quality control and patient safety. Ronayne also ensures compliance with external regulatory agencies and external reporting, including reporting to the Joint Commission, an independent organization that accredits and certifies health care organizations across the country.

¶ 9 Ronayne also stated in her affidavit that she is familiar with the peer review process that takes place within the various departments of NCH. Each medical staff department has a department-specific quality committee to provide a mechanism for monitoring and evaluating the quality and appropriateness of patient care rendered by physicians within the department. Each department has established indicators for peer review by the department-specific quality committee. The Department of Anesthesia has indicators for peer review which are quality screening criteria, and when one is met, it triggers the peer review process within the department. The Department of Obstetrics and Gynecology also has indicators for peer review, and when one is met, it triggers the peer review process within the department. The indicators for review for both departments were attached to Ronayne's affidavit and included triggers like death and adverse outcomes.

¶ 10 Ronayne further stated in her affidavit that based on the circumstances surrounding the decedent's care, one or more of the indicators for review established by the two departments were met. As a result, this triggered the initiation of peer review processes within each department that were conducted by the Anesthesia Quality Improvement Audit Committee and the OB/GYN Quality Improvement Audit Committee, two peer review committees providing a mechanism for monitoring and evaluating the quality and appropriateness of patient care rendered by physicians.

¶ 11 Viggiano, a quality improvement resource specialist in the Department of Service Excellence of NCH, stated in her affidavit that she provides support for medical staff peer review quality initiatives and activities, performs ongoing reviews of cases and events that meet quality review indicators, monitors monthly reporting for case identification, and monitors the performance of case reviews and support of department-specific quality improvement committees. In her role as a quality improvement resource specialist, she assembles information and prepares data at the direction and for the use of the OB/GYN Quality Improvement Audit Committee through the creation of quality management worksheets. Viggiano stated that the Medical Staff Quality Committee is another committee of NCH that is an internal quality committee formed for the purpose of internal quality control and patient safety. The committee has the authority to conduct internal review and investigation of incidents relating to peer review, quality and patient safety, and medical staff education.

¶ 12 Ferguson stated in her affidavit that at the time of the incident, she was a quality improvement resource specialist in the Department of Service Excellence at NCH. In that role, she provided support for medical staff peer review quality initiatives and activities, performed ongoing reviews of cases and events that met quality review indicators, monitored monthly reporting for case identification, and monitored the performance of case reviews and support of department-specific quality improvement committees. In her role as quality improvement specialist, she assembled information and prepared data at the direction of the Anesthesia Quality Improvement Audit Committee through the creation of quality management worksheets.

¶ 13 Dr. Loren, NCH's chief medical officer, stated in his affidavit that he was a member of the Quality Committee of the Board of Directors of NCH at the time of the incident, as well as a member of the Quality and Patient Safety Committee of NCH. Dr. Loren stated that he was authorized to direct the performance of root cause analysis investigations of patient care, which are done for the purpose of improving the quality of patient care and reducing the risk of similar events occurring in the future.

¶ 14 On January 20, 2017, the court held another hearing regarding the privileged documents. Defense counsel argued that once the privilege was established for the documents under the Act, all information, statements, interviews, or anything contained in those documents is afforded the protection of the Act. Defense counsel noted that he had provided the affidavits of individuals that averred those documents were prepared at the request of and for the use of the Anesthesia Quality Improvement Audit Committee and the OB/GYN Quality Improvement Audit Committee.

¶ 15 The trial court stated that it

"wanted to be sure that what defendants are not doing in these cases is taking information that is in a medical record, generating some piece of paper and giving it to the peer review and then not disclosing the information to the plaintiff saying we have a privilege, and we used this information and you can't have it."

Defense counsel argued that was not the standard, stating:

"The documents we have provided to your Honor for review are notes taken and the framework documents taken during the root cause analysis meetings and discussions that occurred during those meetings and the things that people said during those meetings, which is the entire purpose of the Act, so which is to encourage frank discussion among peers about what happened, what does everybody remember, and that's the whole purpose of the Act."

The trial court stated that it would "overrule the privilege, and you can bring your motion for [Illinois Supreme Court Rule] 308(a) language."

¶ 16 On February 10, 2017, another hearing was held in this matter. Defense counsel stated that after the last hearing, plaintiff's counsel agreed to submit a list of any of the documents that plaintiff conceded was privileged. Plaintiff's counsel then submitted a list identifying Document Nos. 3 through 9, which represented the meeting minutes from the quality control meetings that were held on this matter.

¶ 17 On March 10, 2017, defense counsel asked the trial court to hold him in friendly contempt, arguing that it was the most expeditious way to get the issue of privilege to this court. The trial court responded:

"The way I've been handling it lately is instead of the friendly contempt, which the Appellate Court does not like, they don't like friendly contempt, I've been finding that the defendant is willful and contumacious and enter a $100 per day sanction. This is a[n] [Illinois Supreme Court Rule] 219(c) sanction as opposed to a finding of contempt."

The trial court stated, "So I'm finding willful and contumacious behavior for failing to obey the motion to compel under 219(c). I'm entering a $100 a day sanction against you to compel you and coerce you to comply."

¶ 18 On April 7, 2017, the trial court entered an order stating that due to NCH's refusal to produce the documents in question, the court would hold NCH in civil contempt pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) for failure to comply with the orders entered on February 10, 2017, and March 10, 2017. The trial court reduced the daily sanction entered on March 10, 2017, from $100 per day to $500 total, and "that amount shall be purged upon the production of documents within 35 days." NCH then filed a notice of appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016), appealing the trial court's April 7, 2017, order holding NCH in civil contempt for failing to produce Document Nos. 1, 2, and 10 through 24 of its amended privilege log.

¶ 19 ANALYSIS

¶ 20 On appeal, NCH contends that under the plain language of the Act, NCH's amended privilege log, Document Nos. 1, 2, and 10 through 24 are privileged and protected from discovery in their entirety. Plaintiff responds that the trial court properly ruled that the documents in question were not exempt from discovery by a purported privilege under the Act. The Act provides in pertinent 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 * * * 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 2016).

¶ 21 Section 8-2102 of the Act provides that such privileged material "shall not be admissible as evidence, nor discoverable in any action of any kind in any court." Id. § 8-2102. The purpose of the Act is to "encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rates of death and disease." Niven v. Siqueira , 109 Ill. 2d 357, 366, 94 Ill.Dec. 60, 487 N.E.2d 937 (1985). The Act is premised on the belief that, absent the privilege, physicians might be reluctant to sit on peer review committees and engage in frank evaluations of their colleagues. Roach v. Springfield Clinic , 157 Ill. 2d 29, 40, 191 Ill.Dec. 1, 623 N.E.2d 246 (1993).

¶ 22 However, the Act was "never intended to shield hospitals from potential liability." Anderson v. Rush-Copley Medical Center, Inc. , 385 Ill. App. 3d 167, 174, 323 Ill.Dec. 801, 894 N.E.2d 827 (2008). " '[N]ot every piece of information a hospital staff acquires is nondiscoverable, even if it is acquired by a peer-review committee.' " Frigo v. Silver Cross Hospital & Medical Center , 377 Ill. App. 3d 43, 65, 315 Ill.Dec. 385, 876 N.E.2d 697 (2007) (quoting Giangiulio v. Ingalls Memorial Hospital , 365 Ill. App. 3d 823, 835, 302 Ill.Dec. 812, 850 N.E.2d 249 (2006) ). The Act protects documents that arise from the workings of a peer review committee, "which are an integral part, but not the result, of the peer-review process." Toth v. Jensen , 272 Ill. App. 3d 382, 385, 208 Ill.Dec. 428, 649 N.E.2d 484 (1995). Information generated prior to the commencement of the peer review process but later disclosed to a peer review committee is not privileged under the Act. Grandi v. Shah , 261 Ill. App. 3d 551, 556, 199 Ill.Dec. 98, 633 N.E.2d 894 (1994). The Act "protects against disclosure of the mechanisms of the peer-review process, including information gathering and deliberations leading to the ultimate decision rendered by a peer-review committee, but does not protect against the discovery of information generated before the peer-review process begins or information generated after the peer-review process ends." Pietro v. Marriott Senior Living Services, Inc. , 348 Ill. App. 3d 541, 549, 284 Ill.Dec. 564, 810 N.E.2d 217 (2004).

¶ 23 The burden of establishing a privilege under the Act is on the party seeking to invoke it, which is NCH in this case. Ardisana v. Northwest Community Hospital, Inc. , 342 Ill. App. 3d 741, 746, 277 Ill.Dec. 296, 795 N.E.2d 964 (2003). This burden may be met by submitting the materials alleged to be privileged for an in camera inspection, or by submitting affidavits setting forth facts sufficient to establish the applicability of the privilege to the particular documents being withheld. Ekstrom v. Temple , 197 Ill. App. 3d 120, 127, 142 Ill.Dec. 910, 553 N.E.2d 424 (1990). Whether a discovery privilege applies is a matter of law, subject to de novo review. Webb v. Mount Sinai Hospital & Medical Center of Chicago, Inc. , 347 Ill. App. 3d 817, 825, 283 Ill.Dec. 185, 807 N.E.2d 1026 (2004). However, "whether specific materials are part of an internal quality control or a medical study is a factual determination, which will not be reversed on review unless it is against the manifest weight of the evidence." Anderson , 385 Ill. App. 3d at 174, 323 Ill.Dec. 801, 894 N.E.2d 827.

¶ 24 In the case at bar, NCH submitted several affidavits. NCH also submitted the documents in question for in camera inspection by the trial court. Upon review of the submitted affidavits and the documents in question, which were filed under seal, we find that NCH met its burden of proof to establish the applicability of the medical studies privilege to the documents in question. We will now discuss each of those documents in turn.

¶ 25 Quality Management Worksheets

¶ 26 The first two documents at issue (Document Nos. 1 and 2) are titled: "Quality Management Worksheet, Confidential Peer Review Information, Anesthesia and Pain," and "Quality Management Worksheet, Confidential Peer Review, Obstetrics/Gynecology." This court examined similar documents under seal in Ardisana , a case that also involved NCH, and found that a quality management worksheet prepared for the surgical audit committee and a quality management worksheet prepared for the anesthesia department quality audit committee, both constituted privileged documents under the Act. Ardisana , 342 Ill. App. 3d at 748, 277 Ill.Dec. 296, 795 N.E.2d 964. Specifically, this court found that "each of the documents establishes, by its own content, that it served an integral function in the peer-review information-gathering and decision-making process." Id. The court found that it was clear from the quality management/improvement worksheets' content that "they were authored for the use of a peer-review committee and are thus entitled to protection from disclosure." Id. at 749, 277 Ill.Dec. 296, 795 N.E.2d 964. In making its decision, this court noted that NCH had provided the affidavit of its risk manager, which stated that the documents in question were generated in the process of investigations by the general surgery quality improvement audit and anesthesia quality improvement committees, were prepared solely for those two committees, and were used exclusively by those two committees. Id. at 748, 277 Ill.Dec. 296, 795 N.E.2d 964. The court noted that "[w]hen the facts within an affidavit are not contradicted with a counteraffidavit, they must be taken as true." Id.

¶ 27 Similarly here, we have reviewed the two quality control worksheets and the accompanying affidavits of Ferguson, who authored the first document, and Viggiano, who authored the second document. We conclude that these two worksheets served an integral function in the peer review information-gathering and decision-making process.

¶ 28 According to Ferguson's affidavit, the quality improvement resource specialist at the time, the Anesthesia Quality Improvement Audit Committee is the peer review committee specific to the Department of Anesthesia, and it provides a mechanism for monitoring and evaluating the quality and appropriateness of patient care. Ferguson stated that she was familiar with certain peer review activities that took place as a result of the care of the decedent and that a Department of Anesthesia peer review began shortly after the death of decedent on May 28, 2015. Ferguson stated that the peer review was triggered by decedent's death as meeting one of the "established indicators for review by the Anesthesia Quality Improvement Audit Committee." Ferguson stated that the document in question was "prepared by me at the direction of and for the exclusive use of the Anesthesia Quality Improvement Audit Committee."

¶ 29 Viggiano, a quality improvement resource specialist at NCH, stated in her affidavit that she authored the second document in the amended privilege log, titled "Quality Management Worksheet, Confidential Peer Review, Obstetrics/Gynecology." She stated that the OB/GYN Quality Improvement Audit Committee is the peer review committee specific to the Department of Obstetrics and Gynecology. The committee also directs and empowers one or more individuals to assemble information about the patient care events. Viggiano stated that she assembles information and prepares data at the direction and for the use of the committee through the creation of quality management worksheets.

Viaggiano stated that the peer review was triggered by the decedent's death as meeting one of the established indicators for review by the committee.

¶ 30 We find, based on the information contained in these affidavits, and on our own review of the first two documents on NCH's amended privilege log, that NCH has met its burden of proof to show that the quality management worksheets were authored for the use of peer-review committees and are thus entitled to protection from disclosure. See id. at 749, 277 Ill.Dec. 296, 795 N.E.2d 964.

¶ 31 Joint Commission Documents

¶ 32 The next documents at issue in NCH's amended privilege log that we will discuss are the joint commission documents (Document Nos. 10, 11, 18, and 24). Document No. 10 is titled "Sentinel Event Measures of Success Draft Report," Document No. 11 is titled "Sentinel Event Measures of Success Summary Report," Document No. 18 is titled "Organization Self Report to the Joint Commission," and Document No. 24 is titled, "Summary Report to the Joint Commission for Sentinel Event Number 224628."

¶ 33 In support of its claim of privilege, NCH submitted the affidavit of Ronayne, the executive director of service excellence of NCH. Ronayne stated that the Department of Service Excellence is the quality department of NCH which is responsible for overseeing and implementing activities of the hospital relating to quality improvement, peer review, patient safety, and accreditation and certification. Ronayne stated that her predecessor was Tricia Elliott, who held the position during the incident in question. Ronayne stated that she was familiar with the file maintained by the Department of Service Excellence, which concerns the investigation of the care rendered to the decedent. Ronayne stated that NCH is accredited by the Joint Commission. Ronayne noted in her affidavit that the Joint Commission adopted a sentinel event policy in 1996 to help hospitals that experience serious adverse events improve safety and learn from those sentinel events. The purpose of reporting a sentinel event to the Joint Commission is to prevent similar patient safety events in the future and to improve the quality of care. Ronayne averred that the reporting of an event to the Joint Commission by NCH is within the scope of the Quality and Patient Safety Committee. Ronayne stated that she was familiar with the report made to the Joint Commission by Elliott. Ronayne indicated that Document Nos. 10, 11, 18, and 24 were generated by Elliott pursuant to the authority granted to her and her staff by the Quality and Patient Safety Committee. Ronayne stated: "Document 18 is the initial report made to The Joint Commission on May 15, 2015; Document 24 is the Summary Report to the Joint Commission; Document 10 is a draft of Ms. Elliott's summary report to the Joint Commission; and Document 11 is a follow up Summary Report to The Joint Commission."

¶ 34 After reading Ronayne's affidavit and reviewing the sealed documents in question, we find that they are not discoverable. In Niven , 109 Ill. 2d at 362, 94 Ill.Dec. 60, 487 N.E.2d 937, our supreme court addressed the issue of whether the Joint Commission had to produce certain documents including, " 'all other documents, records and other papers and instruments of writing regarding or relating to Northwestern Memorial Hospital.' " Northwestern Memorial Hospital and the Joint Commission objected on the basis of the Act. Our supreme court noted that the purpose of the Act is to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rates of death and disease. Id. at 366, 94 Ill.Dec. 60, 487 N.E.2d 937. Our supreme court found that "allied medical societies" listed in the Act can "only refer to those medical societies which are closely related to the purposes of the Act, i.e. , those medical societies that engage in studies or programs designed to further the purposes of the Act." Id. Our supreme court found that a common understanding of the term "medical society" would "certainly include the Joint Commission, which is, as its name implies, a joint undertaking of several established medical societies." Id. at 366-67, 94 Ill.Dec. 60, 487 N.E.2d 937. The court found that the materials sought by the plaintiffs were gathered "as part of a program designed to improve quality control and patient care" and that therefore "the materials fall under the protection of the Act." Id. at 367, 94 Ill.Dec. 60, 487 N.E.2d 937.

¶ 35 Likewise in the case at bar, we find that these Joint Commission documents are protected under the Act because "the legislature intended the disclosure of confidential materials to the Joint Commission to be an activity protected by the confidentiality guarantees of section 8-2101 [of the Act]." Id. at 367-68, 94 Ill.Dec. 60, 487 N.E.2d 937.

¶ 36 Root Cause Analysis Documents

¶ 37 The final group of documents at issue are the root cause analysis documents, which include Document Nos. 12 through 16, which are titled, "Root Cause Analysis Framework," Document No. 17, titled "Patient Safety Event Debriefing Meeting Notes Pursuant to Root Cause Analysis Investigation," and Document Nos. 19 through 23, titled, "Meeting Notes Pursuant to Root Cause Analysis Investigation." Ronayne stated in her affidavit that she and other members of the Department of Service Excellence are responsible for conducting root cause analysis investigations of specific patient cases in order to investigate opportunities for quality improvement, to identify patient safety issues, and to make recommendations for further improvement based on the findings. Ronayne explained that a root cause analysis identifies causal factors of the adverse outcome or variation in care and why they occurred, focusing primarily on systems and processes. By identifying the root cause of an adverse event, patient care is improved and recurrence is eliminated or mitigated. Ronayne stated that pursuant to NCH's quality improvement process, the decedent's care was identified as an event which necessitated a root cause analysis and Dr. Loren, chief medical officer and as a member of the Quality and Patient Safety Committee, authorized Elliott and her department to initiate a root cause analysis investigation, which began on May 14, 2015, a day after the decedent's surgery. Ronayne stated that Elliott and another member of her department, Bridget Bucholz, were designated gather information regarding the incident and conduct a root cause analysis investigation. Ronayne stated that Document Nos. 17, 19, 20, 21, 22, and 23 are the notes that Bridget Bucholz took during meetings she conducted pursuant to this investigation on May 14, May 18, May 19, May 20, and June 10, 2015. A review of these sealed documents reveals that those are indeed her notes from those meetings. Ronayne stated that Document Nos. 12-16 were generated by Bucholz to detail the investigation, deliberations, analysis, and conclusions of the root cause analysis investigation. A review of those sealed documents reveals the same. Ronayne stated that the root cause analysis investigation and meetings were performed in the course of internal quality control as part of NCH's quality improvement process.

¶ 38 Dr. Loren, the chief medical officer of NCH, stated in his affidavit that he was a member of the Quality Committee of the Board of Directors of NCH at the time of the incident, as well as a member of the Quality and Patient Safety Committee of NCH. Dr. Loren stated that he was authorized to direct the performance of root cause analysis investigations of patient care, which are done for the purpose of improving the quality of patient care and reducing the risk of similar events occurring in the future. Dr. Loren stated that on May 14, 2015, he was advised of the occurrence with decedent. Attached to his affidavit was a memo dated May 14, 2015, directing Elliot and her department to perform a full root cause analysis investigation into the event that occurred involving the decedent.

¶ 39 The express language of the Act states that a privilege applies to

"[a]ll 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 * * *, 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 * * *." 735 ILCS 5/8-2101 (West 2014).

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 advancing the quality of health care." Roach , 157 Ill. 2d at 40, 191 Ill.Dec. 1, 623 N.E.2d 246. Here, we find that these root cause analysis documents fall squarely within the express language of the Act and the purpose of the Act, as the documents were generated by designees of the Quality and Patient Safety Committee in the course of internal quality control for the purpose of reducing morbidity or mortality or for improving patient care.

¶ 40 Trial Court's Concerns

¶ 41 We briefly address the trial court's comments that were made during the hearings on this issue of the privilege log. During the January 20, 2017, hearing the trial court stated, "I'm talking not about the actual piece of paper, but the information that's contained therein, which, obviously, in my opinion was created before the peer review occurred." According to Viggiano and Ferguson, the peer review began shortly after the decedent's death on May 28, 2015. Our review of the sealed documents does not reveal any peer review documents that were generated before May 28, 2015. There are, however, root cause analysis investigation documents that were generated before that date. Ronayne stated in her affidavit that the root cause analysis investigation began on May 14, 2015, a day after the decedent's surgery. Dr. Loren similarly stated in his affidavit that he was advised on May 14, 2015 of an occurrence on May 13, 2015, involving decedent's care and that he ordered the root cause analysis investigation. Accordingly, there are certainly documents in the privilege log that were generated before the peer review process began, however, as discussed above, those documents are privileged, as they fall squarely within the purview of the Act where they were generated by designees of the Quality and Patient Safety Committee in the course of internal quality control for the purpose of reducing morbidity or mortality or for improving patient care. 735 ILCS 5/8-2101 (West 2014).

¶ 42 Also during the January 20, 2017, hearing the trial court stated it

"wanted to be sure that what defendants are not doing in these cases is taking information that is in a medical record, generating some piece of paper and giving it to the peer review and then not disclosing the information to the plaintiff saying we have a privilege, and we used this information and you can't have it."

It also stated, "my concern is, and I think I articulated it before, is that if the information that is in the medical records is missing, observations, discussions between medical personnel, that was only disclosed in the peer review, then the plaintiff can't even begin to ask those questions. That's a problem." The court further stated,

"if medical records don't contain information that somehow somebody then went to the peer review and disclosed, that information was not generated in my opinion for purposes of the peer review, and that is what is being hidden from the plaintiff, and that is not what the case law sustains."

¶ 43 We believe that through these statements the trial court was attempting to express the same concerns expressed in Roach -that simple act of furnishing a peer review committee with earlier-acquired information would not be sufficient to cloak that information with the statutory privilege, otherwise a hospital would be able to effectively insulate from disclosure virtually all adverse facts known to its medical staff, except for those matters actually contained in the patient's medical records. Roach , 157 Ill. 2d at 41-42, 191 Ill.Dec. 1, 623 N.E.2d 246. However, after careful examination of the affidavits and their accompanying exhibits, as well as the sealed documents themselves, there is nothing to suggest that NCH furnished a peer review committee with earlier-acquired information in order to hide that information. Rather, it is evident that an internal investigation was launched by peer review committees after the decedent's surgery because the incident met certain triggering criteria. The documents in question fall squarely within the Act's description of privileged documents, which include

"[a]ll 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 * * *, 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." 735 ILCS 5/8-2101 (West 2014).

¶ 44 Moreover, we note that plaintiff has received the decedent's medical records and that "not only do medical malpractice plaintiffs have full and complete access to their own records, but they can also depose all persons involved in their treatment and engage experts to give opinions as to the quality of care received. Therefore, the denial of this information to such plaintiffs should have little impact on their ability to maintain their cause of action." Jenkins v. Wu , 102 Ill. 2d 468, 479, 82 Ill.Dec. 382, 468 N.E.2d 1162 (1984).

¶ 45 As a final matter, we note that the "results" of the peer review process are not privileged. See Ardisana , 342 Ill. App. 3d at 747, 277 Ill.Dec. 296, 795 N.E.2d 964. Results of a peer review committee "take the form of ultimate decisions made or actions taken by that committee, or the hospital, and include the revocation, modification or restriction of privileges, letters of resignation or withdrawal, and the revision of rules, regulations, policies and procedures for medical staff." Id. "The recommendations and internal conclusions of peer-review committees, which may or may not lead to those results, are not discoverable ." (Emphasis in original.) Id. The only issue before us is whether certain documents in the privilege log are privileged under the Act, and we have determined that they are privileged. Any further inquiries into peer review results, names of committee members, or other matters pertaining to this cause of action, we presume will take place on remand.

¶ 46 CONCLUSION

¶ 47 For the foregoing reasons, we reverse the trial court's discovery order, vacate the contempt order, and remand for further proceedings.

¶ 48 Reversed in part and vacated in part.

¶ 49 Cause remanded.

Justices Cunningham and Delort concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald J. MISCHKE Jr., Defendant-Appellant.
    No. 2-16-0472
    Appellate Court of Illinois, Second District.
    Opinion filed July 30, 2018
    James E. Chadd, Thomas A. Lilien, and Bruce Kirkham, of State Appellate Defender's Office, of Elgin, for appellant.
    Michael G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, David J. Robinson, and Barry W. Jacobs, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Donald J. Mischke Jr., appeals from the judgment of the circuit court of Lake County resentencing him upon remand to consecutive terms of 26 years and 7 years in prison. Because the trial court did not abuse its discretion in resentencing defendant, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Following a bench trial, defendant was found guilty of, among other things, one count of first-degree murder ( 720 ILCS 5/9-1(a)(3) (West 2010) ) and one count of aggravated driving while under the influence (DUI) with cocaine in his urine ( 625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010) ). The charges arose out of defendant's killing another driver while fleeing from a retail store into which he had intentionally driven his vehicle and from which he had stolen a television. Defendant was sentenced to concurrent terms of imprisonment of 26 years on the murder conviction and 7 years on the DUI conviction.

¶ 4 In imposing the original sentences, the trial court noted that it had considered the trial evidence, the aggravating and mitigating evidence, all aggravating and mitigating factors, and the presentence investigation report (PSR). The court commented that defendant's criminal history was "certainly not terribly significant" and that his lack of a violent history indicated that he "possess[ed] the tools to work toward restoring himself * * * to useful citizenship." However, the court added that defendant's actions "evinced a callous disregard for anything or anyone that got in his way" and "caused a family unimaginable loss."

¶ 5 Defendant appealed, and this court vacated his sentences, as they were required to be consecutive (see 730 ILCS 5/5-8-4(d)(1) (West 2010) ), and remanded for resentencing. See People v. Mischke , 2014 IL App (2d) 130318, ¶¶ 23, 25, 391 Ill.Dec. 491, 30 N.E.3d 1129. In doing so, we noted that any increase in the aggregate sentence resulting from the sentences being made consecutive would not be improper. See Mischke , 2014 IL App (2d) 130318, ¶ 23 n.3, 391 Ill.Dec. 491, 30 N.E.3d 1129 (citing People v. Harris , 366 Ill. App. 3d 1161, 1165-66, 304 Ill.Dec. 835, 853 N.E.2d 912 (2006) ).

¶ 6 Upon remand, the trial court conducted a new sentencing hearing, at which the State offered no new evidence. Defendant submitted a letter, in which he explained how the death of the victim was the catalyst for his spiritual transformation and prison ministry. In allocution, defendant reiterated the positive impact the incident had on his life.

¶ 7 In imposing sentence, the trial court noted that it had carefully listened to the parties' arguments, reviewed the PSR and the record of the original sentencing, considered all aggravating and mitigating factors, and considered defendant's letter and allocution. The court commented that, although it was "considerably impressed" with defendant's efforts to make his life useful, it could see no reason to deviate from the original sentences. It added that to reduce either sentence would "seriously diminish and detract from the crimes that [defendant was] convicted of and the sentence [that the court] intended to impose." Thus, the court resentenced defendant to consecutive terms of 26 years' imprisonment on the murder conviction and 7 years' imprisonment on the DUI conviction.

¶ 8 Defendant filed a motion to reconsider his sentences. At that hearing, defendant noted that he was not contending that the imposition of the same individual sentences was per se improper. Instead, defendant asserted that, in light of the new mitigating evidence and the increase in the aggregate sentence from 26 to 33 years, the individual sentences were excessive. The trial court denied the motion to reconsider, and defendant filed this timely appeal.

¶ 9 II. ANALYSIS

¶ 10 On appeal, defendant contends that the trial court abused its discretion in imposing the same sentence for each offense when the aggregate sentence of 33 years exceeded the original aggregate of 26 years, he submitted additional mitigating evidence, and the State presented no new aggravating evidence. We disagree.

¶ 11 Generally, under section 5-5-4(a) of the Unified Code of Corrections ( 730 ILCS 5/5-5-4(a) (West 2014) ), a trial court at resentencing may not impose a more severe sentence. However, when a trial court is required to resentence a defendant to consecutive sentences, section 5-5-4(a) applies only to the individual sentences, not the aggregate sentence. Harris , 366 Ill. App. 3d at 1165, 304 Ill.Dec. 835, 853 N.E.2d 912. Indeed, our supreme court has stated that each conviction results in a discrete sentence that must be assessed individually. People v. Carney , 196 Ill. 2d 518, 530, 256 Ill.Dec. 895, 752 N.E.2d 1137 (2001). As such, consecutive sentences do not constitute a single sentence and cannot be combined as though they were one sentence for one offense. Carney , 196 Ill. 2d at 530, 256 Ill.Dec. 895, 752 N.E.2d 1137. Thus, regardless of any increase in the aggregate sentence, an individual sentence on remand does not violate section 5-5-4(a), provided that it does not, in the absence of any new aggravating evidence, exceed the original individual sentence. Harris , 366 Ill. App. 3d at 1165-66, 304 Ill.Dec. 835, 853 N.E.2d 912 ; People v. Sanders , 356 Ill. App. 3d 998, 1005, 292 Ill.Dec. 870, 827 N.E.2d 17 (2005).

¶ 12 Notwithstanding the foregoing, defendant relies, in part, on the increase in the aggregate of his sentences to argue that they constitute an abuse of discretion. We reject that contention. As noted, a mere increase in the aggregate sentence upon remand does not render the individual sentences improper. See Harris , 366 Ill. App. 3d at 1165-66, 304 Ill.Dec. 835, 853 N.E.2d 912. Thus, defendant's reliance on the increase in the aggregate of the sentences is misplaced.

¶ 13 Defendant also contends that the trial court abused its discretion in imposing the same individual sentences, despite the new mitigating evidence. That argument lacks merit.

¶ 14 It is well established that the trial court is the proper forum to determine a sentence and that a sentencing decision is entitled to great deference and weight. People v. Latona , 184 Ill. 2d 260, 272, 234 Ill.Dec. 801, 703 N.E.2d 901 (1998). A sentence within the statutory limits will not be disturbed absent an abuse of discretion. People v. Coleman , 166 Ill. 2d 247, 258, 209 Ill.Dec. 782, 652 N.E.2d 322 (1995). Such an abuse occurs only when the sentence varies greatly with the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. People v. Stacey , 193 Ill. 2d 203, 210, 250 Ill.Dec. 4, 737 N.E.2d 626 (2000). This court cannot alter a sentence under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967) unless the trial court abused its discretion. People v. Murray , 2017 IL App (2d) 150599, ¶ 90, 419 Ill.Dec. 674, 94 N.E.3d 212.

¶ 15 Here, the trial court resentenced defendant within the applicable statutory ranges. In doing so, the trial court reconsidered all of the aggravating and mitigating evidence, again reviewed the PSR, and noted the additional mitigating evidence regarding defendant's spiritual transformation and prison ministry. However, it explained that the appropriate sentence for each offense remained the same as originally imposed and that to shorten either sentence would deprecate the seriousness of the offense. The court stated that it was impressed with defendant's efforts at making his life useful, but it did not consider that mitigating evidence sufficient to lessen either sentence. Although we might weigh the mitigating evidence differently, we may not reverse the trial court's assessment of that evidence. See People v. Streit , 142 Ill. 2d 13, 19, 153 Ill.Dec. 245, 566 N.E.2d 1351 (1991).

¶ 16 Nor does the lack of any new aggravating evidence show an abuse of discretion. Although upon remand the absence of new aggravating evidence precluded an increase in either individual sentence (see 730 ILCS 5/5-5-4(a) (West 2014) ), there is no authority for the proposition that there must be new aggravating evidence to justify the imposition of the same sentences.

¶ 17 Finally, we note that, although defendant cites North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), he does not contend that his sentences upon remand were the product of vindictiveness. Further, the record does not show any actual vindictiveness. See People v. Garcia , 179 Ill. 2d 55, 74-75, 227 Ill.Dec. 720, 688 N.E.2d 57 (1997).

¶ 18 III. CONCLUSION

¶ 19 For the reasons stated, we affirm the judgment of the circuit court of Lake County. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 20 Affirmed.

Justices McLaren and Spence concurred in the judgment and opinion.

      The trial court merged into the first-degree murder conviction defendant's convictions of aggravated fleeing and eluding, burglary, and retail theft.


text:
    Larry JOHNSON, Marjorie Moore, and Steven Johnson, Plaintiffs, v. Jay K. FILLER, Filler and Associates, David O'Brien, James Schulz Jr., and Carolyn Schulz and Julie Spiers, Individually and as Executors and Beneficiaries of a Purported Last Will and Testament of Lawrence A. Johnson, Deceased, Defendants
    (Steven Johnson, Plaintiff-Appellant; Jay K. Filler and Filler and Associates, Defendants-Appellees).
    No. 2-17-0923
    Appellate Court of Illinois, Second District.
    Opinion filed August 2, 2018 Rehearing denied August 31, 2018
    Peter Thomas Smith and Jeffrey A. Meyer, of Klein, Stoddard, Buck & Lewis, LLC, of Sycamore, for appellant.
    Daniel F. Konicek and Amanda J. Hamilton, of Konicek & Dillon, P.C., of Geneva, for appellees.
   JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 This case involves a family of five children whose parents owned substantial amounts of farmland in McHenry County. The mother preceded the father in death. After the father died, three children filed a probate action (against the other siblings, an accountant, and an attorney) contesting the father's will and trust and asserting other civil claims. The subject of this appeal is a claim for aiding and abetting tortious interference with inheritance expectancy, which was filed by one of the children, Steven Johnson, against the attorney, Jay K. Filler, who prepared the will and trust that was the subject of the probate action. Following a settlement between the siblings in the probate action, the trial court dismissed Steven's claim against Filler. Steven appeals from that order. We affirm.

¶ 2 BACKGROUND

¶ 3 Lawrence and Ruth Johnson had five children: Larry, Marjorie, Steven, Carolyn, and Julie. Lawrence and Ruth each owned a one-half interest as tenants in common in 410 acres of farmland in McHenry County, known as Johnson Farms, which they had titled in a trust. A 116-acre parcel was known as the "Home Farm." Ruth died on July 28, 2001. Under the terms of Ruth's trust, she left her one-half interest in Johnson Farms to her children with a life estate for Lawrence. Ruth's trust further specified that, upon Lawrence's death, Steven would own Ruth's one-half interest in the Home Farm, and the remaining interest in Johnson Farms was to be distributed to all five children equally. Ruth's trust named Lawrence and Carolyn as cotrustees. Ruth's trust named Lawrence as executor and "Carolyn * * * and * * * Larry * * * each in the order named, as [successor] executor."

¶ 4 The record indicates that Lawrence had a will dated October 17, 2011. In that will, there was a provision titled "Article 2, Gifts on My Death." Under section 2.1 of article 2, titled "Gifts of Tangible Personal Property," Lawrence bequeathed all his tangible personal property in equal shares to all his children. Under section 2.2, titled "Gift of Balance," Lawrence, after making other specific bequests, stated as follows:

"C. I give the balance of my estate equally among my children Julie * * *, Carolyn * * *, Marjorie * * *, and Larry * * *.
D. I have intentionally not provided for distribution under this Will for my son Steven * * *, as I have made substantial gifts to him over the years and * * * feel that he has been fairly and adequately compensated."

¶ 5 On June 11, 2013, Lawrence executed a quitclaim deed, drafted by Filler, conveying his one-half interest in the Home Farm to his grandson, James Schulz Jr. (Carolyn's son). At about the same time, Lawrence attempted to sell Ruth's one-half interest in the Home Farm, conveyed under Ruth's trust, to James. The record contains two letters related to this attempted conveyance. In a June 17, 2013, letter from Filler to Larry, Filler stated that he had multiple conversations with Lawrence regarding the sale of the Home Farm to James, that there was a bona fide appraisal of Ruth's one-half interest, and that Lawrence was requesting that Larry either consent to the sale or resign as cotrustee of Ruth's trust. In a June 27, 2013, letter from Filler to Larry's attorney, Filler relied on language in Ruth's trust that gave the trustees the power to sell any real property contained in the trust. Filler stated in the letter that, under that provision, he "believe[d] the Trustees do, in fact, have power to sell the property as proposed." Filler also stated that, since the other one-half interest (Lawrence's interest) was not going to be conveyed to Steven, the sale of Ruth's share to James was "a logical step to avoid future conflict." However, Larry did not agree, and the sale was never consummated.

¶ 6 In a last will and testament dated August 22, 2013, drafted by Filler, Lawrence revoked any prior wills and codicils. Lawrence then bequeathed all his farming equipment and machinery to James. All the remaining personal property was bequeathed to Julie and Carolyn. In his trust, also dated August 22, 2013, Lawrence, after making other specific bequests, left the remainder of his trust estate to Julie and Carolyn, and "intentionally omitted any distribution hereunder to my children, Marjorie * * *, Larry * * *, and Steven, as they have chosen lifestyles apart from mine." Lawrence died on October 2, 2014.

¶ 7 On May 22, 2015, Larry, Marjorie, and Steven filed a complaint against Carolyn, Julie, and James, alleging claims based on undue influence, tortious interference with expectancy, aiding and abetting tortious interference with expectancy, conspiracy, breach of fiduciary duty, rescission, and constructive fraud. The complaint also alleged claims for aiding and abetting tortious interference with inheritance expectancy and legal malpractice against Filler. Following motions and argument, the complaint, as well as first and second amended complaints, were dismissed.

¶ 8 About the same time that Steven filed his May 2015 complaint, he filed a petition in a consolidated probate action, challenging the validity of the 2013 will and trust. On February 28, 2017, Steven entered into a settlement agreement with Carolyn, Julie, and James and dismissed with prejudice his petition in the probate action and his claims in the present action against Carolyn, Julie, and James. However, the agreement specifically reserved Steven's claims against Filler and David O'Brien, Lawrence's accountant and financial adviser.

¶ 9 On February 10, 2017, Steven filed a third amended complaint, separate from Larry and Marjorie, the dismissal of which is the subject of this appeal. Steven's third amended complaint stated claims against Filler and O'Brien. This appeal concerns count I, a claim against Filler for aiding and abetting Carolyn's tortious interference with inheritance expectancy. Specifically, Steven alleged that Carolyn tortiously interfered with his inheritance expectancy by exerting undue influence over Lawrence, causing Lawrence to (1) convey his one-half interest in the Home Farm to James, (2) execute the 2013 will that disinherited Steven, and (3) attempt to sell Ruth's interest in the Home Farm to James. Steven alleged that Filler aided and abetted Carolyn's tortious interference with his inheritance by (1) drafting the 2013 will, (2) preparing the quitclaim deed granting Lawrence's one-half interest in the Home Farm to James, and (3) preparing the paperwork related to the attempt to sell Ruth's one-half interest in the Home Farm to James.

¶ 10 On February 24, 2017, Filler filed a motion to dismiss the third amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2016) ). Filler argued that damages was an element of a claim for tortious interference with inheritance expectancy and that Steven could not prove damages, because he had already been completely disinherited in the 2011 will. Filler also adopted arguments that he set forth in a motion to dismiss the claims against him in a third amended complaint filed by Larry and Marjorie. The adopted arguments were that Steven failed to state a cause of action where he did not allege either that Filler knew that Carolyn was exerting undue influence over Lawrence or that Filler knowingly assisted her in the alleged activity. Specifically, there were no facts showing how Filler would have acquired the requisite knowledge or how Filler knew that Lawrence was susceptible to undue influence. Additionally, Filler argued that the complaint should be dismissed because there were no factual allegations that Carolyn engaged in any conduct or made any statements to Lawrence that would have coerced him into executing the 2013 will. Finally, Filler argued that dismissal was also appropriate because the settlement in the probate case precluded the present claim.

¶ 11 On March 28, 2017, Steven filed a response to Filler's motion to dismiss count I of his third amended complaint. Steven argued that his complaint adequately alleged the elements of his claim. Steven further argued that the probate settlement did not preclude his claim, because he specifically reserved the right to pursue it. Steven also disagreed with Filler's assertion that Steven was disinherited in the 2011 will. Steven argued that, under the 2011 will, he was still entitled to a one-fifth share of his father's personal property.

¶ 12 On April 25, 2017, a hearing was held on Filler's motion to dismiss. A transcript of that hearing is not included in the record on appeal. However, following the hearing, the trial court took the matter under advisement. On July 18, 2017, the trial court granted the dismissal on three different bases. First, the trial court found that Steven failed to state a claim, because there were no allegations that Filler was directly responsible for any undue influence, fraud, or duress. Next, relying on Cherney v. Soldinger , 299 Ill. App. 3d 1066, 234 Ill.Dec. 65, 702 N.E.2d 231 (1998), the trial court found that the claim was barred by the settlement in the probate case. Finally, the trial court found that Filler owed no duty because what happened to Steven occurred two years prior to Filler's involvement in the case-an implicit finding that Steven was completely disinherited in the 2011 will. The trial court subsequently denied Steven's motion to reconsider and entered a finding under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason to delay enforcement or appeal of the order. Thereafter, Steven filed a timely notice of appeal.

¶ 13 ANALYSIS

¶ 14 On appeal, Steven argues that the trial court erred in granting Filler's motion to dismiss count I of his third amended complaint. Specifically, Steven argues that the trial court erred in finding that (1) count I should be dismissed for failing to allege that Filler himself committed acts of undue influence, fraud, or duress; (2) the claim was barred by the settlement agreement in the probate case; and (3) Steven was disinherited in the 2011 will. Finally, Steven argues that his claim sufficiently stated all the elements of his cause of action. We will first address this last argument, as the issue is dispositive of this appeal.

¶ 15 A motion to dismiss under section 2-615 of the Code ( 735 ILCS 5/2-615 (West 2016) ) challenges the legal sufficiency of a complaint, based on facial defects of the complaint. Borowiec v. Gateway 2000, Inc. , 209 Ill. 2d 376, 382, 283 Ill.Dec. 669, 808 N.E.2d 957 (2004). A trial court should grant a section 2-615 motion to dismiss only if "it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief." Pooh-Bah Enterprises, Inc. v. County of Cook , 232 Ill. 2d 463, 473, 328 Ill.Dec. 892, 905 N.E.2d 781 (2009). A court must accept as "true all well-pleaded facts and all reasonable inferences that may be drawn from those facts." Id. This court conducts a de novo review of a trial court's ruling on a motion to dismiss. U.S. Bank National Ass'n v. Clark , 216 Ill. 2d 334, 342, 297 Ill.Dec. 294, 837 N.E.2d 74 (2005). While allegations in the complaint are viewed in the light most favorable to the plaintiff, the decision to dismiss a case may be affirmed on any basis contained in the record, "whether or not the trial court relied on that basis or its reasoning was correct." Erie Insurance Exchange v. Compeve Corp. , 2015 IL App (1st) 142508, ¶ 16, 392 Ill.Dec. 160, 32 N.E.3d 160.

¶ 16 In count I, Steven alleged that Filler aided and abetted Carolyn's tortious interference with his inheritance. In order to state a claim for aiding and abetting, a plaintiff must allege the following: (1) the party whom the defendant aided performed a wrongful act that caused an injury; (2) the defendant was generally aware of his role as part of the overall or tortious activity when he provided the assistance; and (3) the defendant knowingly and substantially assisted the principal violation. Wolf v. Liberis , 153 Ill. App. 3d 488, 496, 106 Ill.Dec. 411, 505 N.E.2d 1202 (1987). A plaintiff cannot merely paraphrase the elements of a cause of action in conclusory terms but must plead specific facts to support the cause of action. Thornwood, Inc. v. Jenner & Block , 344 Ill. App. 3d 15, 29, 278 Ill.Dec. 891, 799 N.E.2d 756 (2003).

¶ 17 In Thornwood , the reviewing court reversed the dismissal of a claim of aiding and abetting a breach of fiduciary duty. Id. at 29-30, 278 Ill.Dec. 891, 799 N.E.2d 756. The plaintiff, Thomas Thornton, had sued the defendant law firm, Jenner & Block, as well as his ex-business partner, James Follensbee, after he had been excluded from a profitable business deal. Id. at 18, 278 Ill.Dec. 891, 799 N.E.2d 756. Specifically, Thornton and Follensbee had formed a partnership to develop Thornton's farm as a residential community and golf course. Id. Initial attempts by Follensbee to work with the Professional Golfers Association (PGA) to have the course developed as an official PGA course, which would have significantly increased the value of the parties' investments, were unsuccessful. Id. at 19, 278 Ill.Dec. 891, 799 N.E.2d 756. After Follensbee had notified Thornton that the PGA's " 'involvement in the development project was not feasible,' " Follensbee secretly continued to negotiate a deal. Id. Follensbee retained Jenner & Block to help him buy out Thornton's partnership interest and negotiate with the PGA and other investors. Id. at 20, 278 Ill.Dec. 891, 799 N.E.2d 756. Jenner & Block drafted an agreement under which Follensbee acquired Thornton's interest in the partnership. Id. Four years later, Thornton found out about Follensbee's negotiations and brought suit. Id. at 21, 278 Ill.Dec. 891, 799 N.E.2d 756.

¶ 18 In discussing the requirements to state a claim against Jenner & Block for aiding and abetting its client's breach of fiduciary duty, the court observed:

"Certainly * * * mere receipt of copies of letters authored by Follensbee, which expose his breach of fiduciary duty, probably does not constitute aiding and abetting under Illinois law. Here, however, Thornton alleges more. He alleges that Jenner & Block aided and abetted by knowingly and substantially assisting Follensbee in breaching his fiduciary duty by[:] (1) communicating the competitive advantages available to the Partnership * * * to other parties, but specifically not to Thornton; (2) expressing Follensbee's interest in purchasing Thornton's interest in the Partnership and negotiating the purchase of that interest without disclosing to Thornton the continued negotiations * * *; (3) reviewing and counseling Follensbee with regard to the production of investment offering memoranda, financial projections, and marketing literature, which purposely failed to identify Thornton as a partner; and (4) drafting, negotiating, reviewing, and executing documents, * * * relating to the purchase of Thornton's interest * * * with knowledge that Thornton was not aware of [negotiations with the PGA]. All of these acts are alleged to have been perpetrated by Jenner & Block while it had knowledge that Thornton and Follensbee were partners, that Follensbee had a duty to disclose [plans] to Thornton, and that Follensbee did not disclose [plans] to Thornton despite having the opportunity and duty to do so." Id. at 29, 278 Ill.Dec. 891, 799 N.E.2d 756.

The Thornwood complaint thus adequately alleged that Jenner & Block (1) had specific knowledge of the tortious acts Follensbee was committing against Thornton, (2) knew that Thornton was not aware of those tortious acts, and (3) was actively involved in both hiding and furthering those tortious acts.

¶ 19 Here, count I of Steven's third amended complaint failed to state a cause of action against Filler for aiding and abetting the alleged tortious interference with his inheritance by Carolyn's undue influence. Steven alleged that Filler (1) knew that Lawrence was "susceptible" to undue influence, (2) "should have known" that the conveyance of Lawrence's share in the Home Farm to James was "presumptively fraudulent," and (3) "should have made a reasonable and good faith determination as to whether Carolyn was unduly influencing Lawrence." Steven also alleged that Filler should have obtained "independent and competent counsel for Lawrence" to determine if the desire to change the will was the result of undue influence. With respect to the attempt to sell Ruth's one-half interest in the Home Farm to James, Steven alleged that Filler, in the June 27 letter, set forth a false legal opinion that Larry, as a trustee of Ruth's trust, could sell Ruth's interest in the Home Farm.

¶ 20 These allegations do not show that Filler knew of the undue influence and substantially assisted it. In fact, the allegations imply that Filler did not know of any undue influence but would have found out if he had investigated. Further, unlike in Thornwood , there are no allegations that Filler actively participated in the alleged tortious activity. In Thornwood , it was alleged that Jenner & Block actively concealed information from Thornton in order to further the tortious activity. Here, although Filler drafted the 2013 will and other documents requested by Lawrence, there are no allegations that Filler actively hid information from or made any misrepresentations to either Lawrence or any of the siblings in order to further the alleged undue influence. Although Steven alleged that Filler set forth a false legal opinion regarding the ability of the trustees of Ruth's trust to sell Ruth's interest in the Home Farm, the June 27 letter demonstrates no more than Filler's opinion as to the trustees' power under Ruth's trust. If in fact this legal opinion was erroneous, we note that the letter was addressed to Larry's attorney, not to Larry or Lawrence directly.

¶ 21 Steven argues that "should have known" is sufficient to allege a claim for aiding and abetting. However, recent cases, such as Thornwood , refer to the standard of actual knowledge, not constructive knowledge. Id. at 27, 278 Ill.Dec. 891, 799 N.E.2d 756. Additionally, other courts have rejected the notion that constructive knowledge is sufficient to support a claim for aiding and abetting. Barker v. Henderson, Franklin, Starnes & Holt , 797 F.2d 490, 497 (7th Cir. 1986) ("[a] plaintiff's case against an aider, abetter, or conspirator may not rest on a bare inference that the defendant 'must have had' knowledge of the facts. The plaintiff must support the inference with some reason to conclude that the defendant has thrown in his lot with the primary violators."); Global Cash Network, Inc. v. Worldpay, US, Inc. , 148 F.Supp.3d 716, 724 (N.D. Ill. 2015) (that a defendant should have known that something was improper "is a far cry from knowingly assisting" with tortious activity). Here, even if there were circumstances such that Filler should have suspected undue influence, there are still no allegations that Filler substantially assisted it.

¶ 22 Steven cites White v. Moran , 134 Ill. App. 480 (1907), for the proposition that the knowledge necessary for aiding and abetting can be either actual or constructive. In that case, the court stated:

"If [defendants] had actual or constructive knowledge of the fraudulent character of the enterprise, and with such knowledge, aided and abetted in its furtherance, and by means of false and untrue representations induced appellee to invest therein, they were in pari delicto with White in the fraud and deceit practiced and equally liable with him for any damages occasioned to appellee." Id. at 491-92.

¶ 23 We find unpersuasive Steven's reliance on White . First, no case has ever cited White for the proposition that constructive knowledge of wrongful conduct is sufficient to allege a claim for aiding and abetting. Further, the allegations in White were based on actual knowledge. In White , it was alleged that the defendants (1) made false representations to further the fraud and deceit of the principal, (2) knew that the representations were false, and (3) made the representations to deceive the plaintiff and induce him to rely on them. Id. at 481. In this case, unlike in White , there are no allegations that Filler took steps, other than drafting documents requested by his client, to substantially assist the alleged tortious activity.

¶ 24 For the above reasons, we affirm the dismissal of count I of Steven's third amended complaint on the basis that it failed to state a cause of action. We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis. Erie , 2015 IL App (1st) 142508, ¶ 16, 392 Ill.Dec. 160, 32 N.E.3d 160. Accordingly, we need not address Steven's additional contentions relating to the propriety of the trial court's reasons for the dismissal.

¶ 25 In so ruling, we include a note of concern. Although we find that count I failed to state a cause of action, attorneys should be mindful of situations, as in the present case, where an elderly person in the last years of his life requests to disinherit family members and attempts to sell a family member's interest in a property. In such situations, attorneys should proceed with the utmost caution.

¶ 26 CONCLUSION

¶ 27 For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.

¶ 28 Affirmed.

Justices Zenoff and Jorgensen concurred in the judgment and opinion.