IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION SAINT ANTHONY HOSPITAL, Plaintiff, v. THE LEAPFROG GROUP, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 2017-CH-14420 Hon. Anna Helen Demacopoulos DEFENDANT’S VERIFIED AFFIRMATIVE DEFENSES TO PLAINTIFF’S VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 21 of 46 INTRODUCTION 1. The Leapfrog Group (“Leapfrog”) is a national non-profit organization focused on spurring dramatic leaps forward toward a safer, higher quality, and more affordable U.S. health care system. A major goal of Leapfrog’s mission is to provide transparency to support informed health care decisions by those who use and pay for health care and to drive health care providers to increase the value, quality, and safety of the care they provide. 2. One of Leapfrog’s flagship initiatives is its Leapfrog Hospital Safety Grade program, a letter grading system that provides consumers with an easy to understand grade of A, B, C, D, or F (a “Safety Grade”) on how well hospitals keep their patients safe from errors, injuries, accidents, and infections. Over 2,600 hospitals are evaluated in the Leapfrog Hospital Safety Grade program, which calculates grades twice per year—once in the spring and once in the fall. Leapfrog also operates a hospital survey, the Leapfrog Hospital Survey (or the “Survey”), which evaluates hospitals on a variety of safety and quality metrics. Some of the data collected in the Hospital Survey are used in the Safety Grade, but participation in the Survey is voluntary and is not required to receive a Safety Grade. 3. Each Leapfrog Hospital Safety Grade that Leapfrog calculates for a hospital results from Leapfrog’s rigorous and peer-reviewed scoring methodology, which relies on both public data (e.g., information publicly reported by the Centers for Medicare and Medicare Services) and also data from Leapfrog’s own Leapfrog Hospital Survey for those hospitals that voluntarily submit a Survey. The grading methodology also includes data that hospitals voluntarily submit to the American Hospital Association (AHA) Annual Survey and HIT Supplement. Leapfrog’s peer-reviewed scoring methodology is available to the public on the Safety Grade website. The scoring methodology has been refined over the years under the guidance of a national panel of patient safety researchers and experts, and based on feedback from ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 22 of 46 the hospital community. Using scores from the 27 measures included in the Safety Grade, a single numerical score is calculated that is then translated into a letter grade. 4. The Leapfrog Hospital Safety Grade program provides health care consumers and other stakeholders with a reliable method of meaningfully comparing hospitals on patient safety based on one standardized set of criteria. To do so, it is critical that Leapfrog be able to calculate Safety Grades for the over 2,600 graded hospitals on a consistent, reliable, and fair basis. Accordingly, Leapfrog adheres to established and well-publicized policies and processes to maintain consistency and reliability in administering the program and calculating Safety Grades. This includes following an established, well-publicized timetable for all hospitals to submit data to those voluntary data sources used in the Leapfrog Hospital Safety Grade scoring methodology (i.e., the Leapfrog Hospital Survey, AHA Annual Survey and AHA HIT Supplement), such that all data can be evaluated under consistent conditions and in a uniform timeframe. -2- 5. Plaintiff Saint Anthony Hospital operates on the west side of Chicago and has received a Leapfrog Hospital Safety Grade since 2012. For a number of years, Plaintiff has also participated in Leapfrog’s Hospital Survey. 6. On June 7, 2017, Plaintiff submitted data to the Leapfrog Hospital Survey via Leapfrog’s online survey tool. Among this data, Plaintiff reported that approximately 60% of inpatient medication orders are processed through its computerized physician order entry (“CPOE”). In making its submission, Plaintiff completed an Affirmation of Accuracy, expressly certifying that the information submitted “is true, accurate, and reflects the current, normal operating circumstances at our hospital.” ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 23 of 46 7. Plaintiff, like all other hospitals that submitted data by June 30, 2017, had the opportunity to review its own Leapfrog Hospital Survey results, based entirely on its own selfreported data, for a period of two weeks before that information was published on the Leapfrog Hospital Survey website on July 25, 2017. Plaintiff raised no issues regarding its CPOE data or anything else during that time. 8. Later, Leapfrog notified all hospitals that they must complete or update their Leapfrog Hospital Survey responses by August 31, 2017, for their responses to be used in scoring the Fall 2017 Leapfrog Hospital Safety Grades. Again, Plaintiff did not update any CPOE data prior to the deadline. 9. On September 13, Leapfrog opened up a three-week data review period for hospitals receiving a Fall 2017 Leapfrog Hospital Safety Grade to review all data from all sources that would be used to calculate their Safety Grade, and to raise any concerns about those data with Leapfrog. During this period, Plaintiff did not review its data and raised no issue regarding the CPOE data Plaintiff provided to Leapfrog. -3- 10. Ten days after the close of the review period, on October 13, 2017, Plaintiff logged into the Leapfrog Hospital Survey via the online survey tool but did not change any survey responses pertaining to CPOE. 11. On October 12, 2017, Leapfrog opened a two-week embargo period for hospitals to preview their Fall 2017 Safety Grade before publication. Plaintiff again stayed silent despite receiving notification of this embargo period. 12. Only six days before the long-publicized publication date for the Fall 2017 Leapfrog Hospital Safety Grade did Plaintiff for the first time ever indicate to Leapfrog that it believed it had submitted inaccurate CPOE data in June and that its Fall 2017 Safety Grade was ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 24 of 46 inaccurate as a result. 13. Leapfrog was compelled to adhere to its established procedures and timetables for data submission, review, and the calculation of Safety Grades in order to maintain consistency and fairness in its grading process. However, Leapfrog did offer to assist Plaintiff through the process of documenting updated CPOE information and resubmitting its Leapfrog Hospital Survey. While this update could not change Plaintiff’s Fall 2017 Safety Grade, it would be used in the Spring 2018 Leapfrog Hospital Safety Grade. Notwithstanding Leapfrog’s offer, Plaintiff to date has been unable to verify that an update to its CPOE data is even warranted. 14. Plaintiff instead rushed into court on October 30, 2017—the very day before the Fall 2017 Leapfrog Hospital Safety Grades were to be published—bringing a lawsuit for emergency relief based on information provided and affirmed as accurate by Plaintiff, and indeed published for Plaintiff’s review for months without any objection from Plaintiff, despite numerous prompts and opportunities to verify the data. -4- 15. In short, this lawsuit is Plaintiff’s eleventh hour gambit to turn back the clock on a disappointing safety grade based in part on the data that Plaintiff itself provided and certified, and which Leapfrog simply used in accordance with its long-established processes. ALLEGATIONS SUPPORTING LEAPFROG’S AFFIRMATIVE AND OTHER DEFENSES PARTIES 16. Established in 2000, Leapfrog is a national non-profit organization based in Washington, D.C. Leapfrog is dedicated to improving the quality and safety of American health care through, among other things, arming consumers and other participants with information about ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 25 of 46 the quality and safety of thousands of hospitals across the nation. 17. Plaintiff is a hospital operating in Chicago, IL. FACTUAL ALLEGATIONS 18. This dispute is the result of Plaintiff’s eleventh hour displeasure with its Hospital Safety Grade of C, despite the fact that such grade was a byproduct of Plaintiff’s own self-reported data. 19. Leapfrog enjoys a favorable reputation in the industry in part because it follows a standardized process for allowing hospitals to submit and review their data in a consistent manner that is organized, predictable, transparent, and fair. Plaintiff would have had Leapfrog abandon its longstanding procedures and requirements, accept Plaintiff’s “new” CPOE data notwithstanding the fact that Plaintiff provided its data for the same metric in June and stood by that data for months—all to generate a new safety grade more to Plaintiff’s liking. 20. Plaintiff’s claims are baseless and also are defeated by numerous affirmative matters. -5- I. Leapfrog’s Hospital Survey and Hospital Safety Grade Programs 21. Leapfrog runs two main programs in support of its mission to improve the safety, quality, and affordability of U.S. health care through transparency. 22. One major program is the annual Leapfrog Hospital Survey (the “Survey”), which collects and reports data on participating hospitals’ performance on safety and quality, with the goal of empowering purchasers to find the highest-value care and giving consumers the information they need to make informed and potentially lifesaving decisions. This program is voluntary and utilizes information that hospitals submit directly to Leapfrog. Hospitals must affirm the truth and accuracy of the information provided before it can be submitted. In addition, ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 26 of 46 many reporting hospitals are required to undergo Leapfrog’s even more intensive verification process, which can include submission of additional documentation and/or an on-site hospital visit by an independent verification team. Plaintiff, for example, has been asked to provide thorough documentation that an update was warranted following their claim of inaccurate data (which Plaintiff claimed was incorrect after months of failing to review or raise issues regarding the data). 23. The Leapfrog Hospital Safety Grade program, Leapfrog’s other main initiative, assigns letter grades to hospitals based on their performance on 27 different national measures of patient safety, which helps consumers protect themselves and their families from errors, injuries, accidents, and infections. This program utilizes information that has already been publicly reported, such as patient safety data from the Centers for Medicare and Medicaid Services Website known as Hospital Compare. 24. Leapfrog’s peer-reviewed scoring methodology for the Leapfrog Hospital Safety Grade is the product of years of careful development and input from numerous patient safety researchers and experts following a set of guiding principles. The scoring methodology is refined on a regular basis by a ten-member expert panel (the “Expert Panel”) comprised of patient safety -6- experts from across the country. The Expert Panel follows a set of guiding principles in developing the Safety Grades, including that the Safety Grade should consist of a simple metric, it should focus on patient safety, it should include measures that are scientifically sound (e.g., valid, reliable), it should be determined according to a transparent process, and hospitals should have the opportunity to review their grades prior to public release. Leapfrog’s scoring methodology has previously been published in the peer-reviewed Journal of Patient Safety.9 25. The specifics of Leapfrog’s scoring methodology for the Leapfrog Hospital Safety Grade—including how CPOE information factors into the Safety Grade—is well known to hospitals and is published online.10 Relevant here, the published scoring methodology for the Fall ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 27 of 46 2017 Safety Grades expressly describes how a Leapfrog Hospital Survey-participating hospital’s use of a CPOE system for medication orders (as reported by the hospital through the online survey tool by the requisite August 31, 2017 deadline) affects the hospital’s Safety Grade. 26. The published scoring methodology for the Fall 2017 Leapfrog Hospital Safety Grade also describes Leapfrog’s policies for updating data, emphasizing that (a) Leapfrog relies on hospitals to review their self-reported and published data for accuracy, (b) Leapfrog does not allow hospitals to update their data after the August 31, 2017 deadline for submitting data to be used in the Fall 2017 Leapfrog Hospital Safety Grades (the “Data Snapshot Date”), and (c) Leapfrog holds a “courtesy three-week Safety Grade Review Period to give hospitals an additional opportunity to review the data that will be used to calculate their hospital’s Safety Grade” (during 9 J. Matthew Austin, et al., Safety in Numbers: The Development of Leapfrog’s Composite Patient Safety Score for U.S. Hospitals, 9 Journal of Patient Safety 1 (2013), available at http://www.hospitalsafetyscore.org/media/file/JournalofPatientSafety_HospitalSafetyScore.pdf. 10 The scoring methodology for the Fall 2017 Safety Grades is available at: http://www.hospitalsafetygrade.org/ media/file/12HospitalSafetyGrade_ScoringMethodology_Fall2017_FINAL2.pdf. -7- which time hospitals are instructed to “contact the Help Desk immediately” if they “find[] a data discrepancy”). 27. Leapfrog’s timeline for collecting and analyzing data, including details on the Data Snapshot Date and the data review periods, is provided well in advance. The three-week “Safety Grade Review Period” provides hospitals that will be receiving a grade with an opportunity to review the data for accuracy on a secure website, and to review any changes to Leapfrog’s methodology. II. Plaintiff Provides Data to Leapfrog and Affirms Its Accuracy 28. On or around June 7, 2017, Susan Sim (Saint Anthony Hospital Outcomes Case ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 28 of 46 Manager) submitted survey responses to Section 1 (Basic Hospital Information) and Section 2 (CPOE) of the Leapfrog Hospital Survey via Leapfrog’s online survey tool. Specifically, Plaintiff’s June 7, 2017 submission provided the following responses to Questions numbered 3 and 4 of the survey: Question #3: Total number of inpatient medication orders, including orders made in units which do NOT have a functioning CPOE system. Question #4: The number of orders in question #3 that licensed prescribers entered via a CPOE system that meets the criteria outlined in question #2. 29. Answer to #3: 197,046 Answer to #4: 118,542 In making the June 7, 2017 submission, Sim also completed an Affirmation of Accuracy, which stated (with emphasis added): As the hospital CEO or as an employee of the hospital to whom the hospital CEO has delegated responsibility, I have reviewed this information pertaining to the Medication Safety - Computerized Physician Order Entry Section at our hospital, and I hereby certify that this information is true, accurate, and reflects the current, normal operating circumstances at our hospital. I am authorized to make this certification on behalf of our hospital. -8- The hospital and I understand that The Leapfrog Group, its members, the public and entities and persons who contract with Leapfrog are relying on the truth and accuracy of this information. The hospital and I also understand that The Leapfrog Group will make this information and/or analyses of this information public through the survey results public reporting website, The Leapfrog Group’s Hospital Safety Grade, and/or other Leapfrog Group products and services. This information and/or analyses and all intellectual property rights therein shall be and remain the sole and exclusive property of The Leapfrog Group. This information does not infringe any third party’s intellectual property rights. The hospital and I acknowledge that The Leapfrog Group may use this information in a commercial manner for profit. The hospital shall be liable for and shall hold harmless and indemnify The Leapfrog Group from any and all damages, demands, costs, or causes of action resulting from any inaccuracies in the information or any misrepresentations in this Affirmation of Accuracy. The Leapfrog Group and its members and entities and persons who contract with Leapfrog reserve the right to omit or disclaim information that is not current, accurate or truthful. ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 29 of 46 III. Leapfrog’s Established Processes Afford Plaintiff Ample Opportunity to Submit, Review, and Update Their Data for the Fall 2017 Safety Grade A. Review, Publication and Use of Leapfrog Hospital Survey Results 30. On or about July 12, 2017, Leapfrog notified hospitals that the Leapfrog Hospital Survey Results (i.e., scores resulting from responses submitted via the online survey tool by the participating hospitals) were available on a password-protected website for those hospitals that had submitted their 2017 Leapfrog Hospital survey by June 30, 2017. The survey results available on the website for Plaintiff included a CPOE score that was based on Plaintiff’s June 7, 2017 submission indicating that it entered approximately 60% of inpatient medication orders into its CPOE system. This notice provided to all participating hospitals occurred two weeks prior to Leapfrog’s publication of Survey results on the Survey’s public website. 31. After those two weeks, on July 24, 2017, Leapfrog notified all hospitals that the Survey results would be posted to the Survey’s public website the following day, July 25, 2017. That notice also included a reminder that the deadline for submitting data to be used in the Fall 2017 Leapfrog Hospital Safety Grade (i.e. the Data Snapshot Date) was August 31, 2017. -9- 32. The following day, on July 25, Leapfrog posted the survey results to its public website, including the CPOE information based on Plaintiff’s June 7, 2017 submission indicating that Plaintiff entered approximately 60% of inpatient medication orders into its CPOE system. 33. Leapfrog reminded hospitals of important upcoming dates again on August 16, 2017, when it reminded each of their primary and secondary survey contacts, and each of their CEOs, of the August 31, 2017 Data Snapshot Date, and notified them of the courtesy three-week Hospital Safety Grade Review Period from September 13 to October 3, 2017. Ms. Sim of Saint Anthony Hospital opened that email notification. 34. August 31, 2017 was the Data Snapshot Date for the Fall 2017 Leapfrog Hospital ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 30 of 46 Safety Grade. As of the Data Snapshot Date, Plaintiff did not change the CPOE data it submitted in early June 2017 or raise with Leapfrog any concerns regarding its accuracy. B. The Hospital Safety Grade Review Period 35. As part of the next step in the Fall 2017 Leapfrog Hospital Safety Grade process, Leapfrog opened up a Hospital Safety Grade Review Period during which hospitals had the opportunity to review and comment on the 27 measures that would be used to calculate the hospitals’ Safety Grades. 36. On or about September 13, 2017, Leapfrog sent an announcement to Paula Ashley (Plaintiff’s primary survey contact) and Guy Medaglia (Plaintiff’s CEO) regarding the courtesy three-week Hospital Safety Grade Review Period. Additionally, Leapfrog sent an e-newsletter regarding the courtesy three-week Hospital Safety Grade Review Period to approximately five individuals employed by Plaintiff who were on Leapfrog’s e-newsletter listserv. 37. Leapfrog followed up again on or about September 26, 2017 by sending a reminder by both email and e-newsletter to all contacts on file for Plaintiff regarding the courtesy threeweek Hospital Safety Grade Review Period ending on October 3, 2017. Again, Leapfrog also sent -10- the e-newsletter regarding the courtesy three-week Hospital Safety Grade Review Period to approximately five individuals employed by Plaintiff who were on Leapfrog’s e-newsletter listserv. 38. Plaintiff never raised any issue with its CPOE data or any other data during the Hospital Safety Grade Review Period. C. The Two-Week Letter Grade Embargo Period 39. After the three-week Hospital Safety Grade Review Period ended and Leapfrog calculated all hospital grades, on or about October 12, 2017 Leapfrog opened the two-week embargo period for the Fall 2017 Leapfrog Hospital Safety Grade (the “Embargo Period”) to all ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 31 of 46 hospitals. 40. The Embargo Period is an opportunity for all graded hospitals to review their actual letter Safety Grade before it is published at www.HospitalSafetyGrade.org so that graded hospitals can prepare appropriate press and marketing efforts. Leapfrog sent the announcement to all hospitals’ primary and secondary survey contacts and CEOs, as well as their e-newsletter listserv distribution list. Ms. Ashley opened the email, and Mr. Medaglia opened the e-newsletter multiple times. 41. On or about October 13, 2017, Ms. Sim accessed Leapfrog’s online survey tool, but did not make any updates to Plaintiff’s responses in Section 2 (CPOE) of the Leapfrog Hospital Survey. 42. During the Embargo Period, on October 20, 2017, Leapfrog received a help desk ticket from Ms. Ashley asking about Plaintiff’s CPOE score. Leapfrog’s help desk responded that same day and directed Plaintiff to Leapfrog’s scoring algorithm for the CPOE measure and its scoring methodology for the Leapfrog Hospital Safety Grade (both of which had at all relevant -11- times been available to Plaintiff), and also explained the components of Plaintiff’s CPOE score based on the information that Plaintiff had submitted to Leapfrog. 43. Leapfrog received another help desk ticket on October 24, 2017, this time from Ms. Sim, asking whether Plaintiff could still “make corrections to [its] Leapfrog data” that would affect the Fall 2017 Hospital Safety Grade for Plaintiff. Leapfrog’s help desk responded that same day and explained that the Data Snapshot Date for the Fall 2017 Leapfrog Hospital Safety Grade ended on August 31, 2017, and that accordingly, any data submitted after August 31, 2017 could not be included in the Fall 2017 Leapfrog Hospital Safety Grade. Leapfrog also provided Ms. Sim with Leapfrog’s policy on correcting data used in the Safety Grade. ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 32 of 46 IV. Plaintiff’s Belated Request to Change Its Data 44. Not until October 25, 2017 did Plaintiff assert a purported issue with the self- reported CPOE data. Leapfrog received another help desk ticket, this time from Eden Takhsh M.D. (Plaintiff’s Chief Quality Officer), stating there was an issue with the CPOE data they reported via the Leapfrog online survey tool in June 2017. Leapfrog’s help desk responded that same day and asked Dr. Takhsh to describe the data that was entered incorrectly, but he did not reply. 45. Instead, Dr. Takhsh spoke with Missy Danforth (Leapfrog Vice President, Health Care Ratings) by telephone on or about October 26, 2017. Ms. Danforth reiterated Leapfrog’s policy that updates submitted to the Leapfrog online survey tool after the Data Snapshot Date cannot be applied retroactively, but can be used in the Leapfrog Hospital Safety Grade for the next cycle. For example, updates submitted after August 31, 2017 could be used in the Spring 2018 Leapfrog Hospital Safety Grade, but not the Fall 2017 Leapfrog Hospital Safety Grade. 46. Moreover, Ms. Danforth explained that per Leapfrog’s established policies and procedures, Safety Grades cannot be altered after they have been shared with hospitals during the -12- Embargo Period. This policy is to ensure, among other things, fairness and predictability for all hospitals, and that hospitals have no ability or incentive to lobby for a different grade once they have received their grade. Ms. Danforth further noted to Dr. Takhsh that Plaintiff had three months to review its submissions for accuracy and completeness but failed to do so. Finally, Ms. Danforth offered her assistance to Dr. Takhsh so he could document why an update to the CPOE data for the 2017 Survey was warranted, and to support Plaintiff through the re-submission and verification process. 47. The following day, on Friday, October 27, 2017, attorneys for Plaintiff sent a letter to Leapfrog. The October 27 letter acknowledged that Plaintiff had submitted data to Leapfrog ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 33 of 46 “on or about June 6, 2017,” and claimed that Plaintiff realized at some point in October 2017 that it had submitted purportedly inaccurate data to Leapfrog. The October 27 letter additionally acknowledged that Plaintiff did not bring the alleged error to the attention of Leapfrog until late October 2017, long after the August 31, 2017 Data Snapshot Date and long after Leapfrog had already relied on Plaintiff’s data—which Plaintiff had itself provided and explicitly affirmed as accurate—to determine Plaintiff’s Fall 2017 Leapfrog Hospital Safety Grade. Nevertheless, Plaintiff’s attorney’s October 27 letter purported to “withdraw” the CPOE data submitted by Plaintiff on or about June 6, 2017, and demanded that Leapfrog refrain from publishing Plaintiff’s Fall 2017 Safety Grade. 48. The following Monday, October 30, 2017—and less than 24 hours before the Fall 2017 Hospital Safety Grades were to be published—Plaintiff filed this suit against Leapfrog and moved for a temporary restraining order and preliminary injunction. 49. In a good-faith effort to help Plaintiff address its business concerns, Leapfrog agreed to an order on October 30, 2017 that Leapfrog would refrain from publishing new data or -13- a Fall 2017 Leapfrog Hospital Safety Grade for Plaintiff, that Leapfrog would respond to media inquiries regarding Plaintiff’s lack of a Fall 2017 Safety Grade only by indicating that there was a “discrepancy” with the self-reported data such that a “grade could not be issued,” and that Plaintiff’s motion for a temporary restraining order and preliminary injunction was denied. 50. On October 31, 2017, Leapfrog published the Fall 2017 Leapfrog Hospital Safety Grades, but did not publish any Safety Grade for Plaintiff, mooting Plaintiff’s claim for emergency injunctive relief. 51. Later on October 31, 2017, attorneys for Plaintiff contacted attorneys for Leapfrog, noting that Plaintiff’s CPOE information was still available under Plaintiff’s online Leapfrog ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 34 of 46 Hospital Survey results. Attorneys for Plaintiff demanded that the CPOE information—which had been published and continually available online since July 25, 2017 without any objection from Plaintiff—be taken down immediately. Attorneys for Leapfrog noted that the CPOE information was not new and that Leapfrog was in full compliance with the October 30, 2017 agreed order, but that Leapfrog was nevertheless standing by to assist Plaintiff in updating and verifying its Survey data. 52. In a telephonic discussion later that day between Leapfrog and Plaintiff, Ms. Danforth explained to Plaintiff’s personnel the process for submitting supporting documentation to Leapfrog in order to verify the update to Plaintiff’s CPOE data. 53. Plaintiff provided documentation purporting to support its requested CPOE updates, but such documentation did not meet Leapfrog’s criteria to verify Plaintiff’s claim that it enters 95% of medication orders through its CPOE system. For instance, Plaintiff incorrectly included medication ordered in observation units of the hospital, whereas Leapfrog measures medication orders for inpatient units alone. Because of Plaintiff’s inability to sufficiently -14- substantiate its requested CPOE update, Leapfrog determined that it would remove Plaintiff’s original CPOE results from the Leapfrog Hospital Survey results website. 54. To date, Plaintiff has been unable to substantiate its assertion that 95% of inpatient medication orders are entered through the CPOE system. * 55. * * Leapfrog asserts these affirmative and other defenses without conceding that Leapfrog bears the burden of proof as to any of these defenses. Leapfrog reserves the right to supplement or amend these defenses as warranted by discovery or as justice may require. ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 35 of 46 FIRST DEFENSE (Truth – as to Counts I & II) 56. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 52], as if fully set forth herein. 57. Leapfrog uses data—including hospitals’ self-reported data (from the Leapfrog Hospital Survey, AHA Annual Survey, and AHA HIT Supplement)—to determine Leapfrog Hospital Safety Grades with the good motive and for the justifiable end of informing the public and thereby improving the safety of the U.S. health care system. 58. Plaintiff submitted data to Leapfrog on or around June 7, 2017 and specifically affirmed that it had reviewed the “information pertaining to the Medication Safety - Computerized Physician Order Entry Section at our hospital” and did “certify that this information is true, accurate, and reflects the current, normal operating circumstances at our hospital” (emphasis added) (the “Affirmation of Accuracy”). 59. Thus the published statements at issue were in all events made truthfully and with good motives and for justifiable ends. -15- 60. Plaintiff’s claims for defamation per se and under the Uniform Deceptive Trade Practices Act are therefore barred because the allegedly defamatory statement was true and not deceptive. SECOND DEFENSE (Qualified Privilege – as to Counts I & II) 61. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 57], as if fully set forth herein. 62. The Leapfrog Hospital Safety Grades concern a recognized interest of the public in obtaining reliable information on hospitals, including information relevant to patient safety. ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 36 of 46 63. Leapfrog acted in good faith when it relied on Plaintiff’s self-reported data and Affirmation of Accuracy. 64. Leapfrog acted in accordance with and in support of the public’s interest in obtaining reliable information on hospitals, including information relevant to patient safety. 65. Leapfrog Hospital Safety Grades are limited in their scope to the purpose of promoting the public’s interest in obtaining reliable information on hospitals, including information relevant to patient safety. 66. Leapfrog’s biannual Leapfrog Hospital Safety Grade, which is conducted according to an established time table, is a proper occasion for the publication of the Leapfrog Hospital Safety Grade. 67. Because the purpose of the Safety Grade is to provide all stakeholders with a set of transparent and standardized information with which to make more informed decisions regarding U.S. health care, the Safety Grades are properly published online to the general public. 68. Plaintiff’s claims for defamation per se and under the Uniform Deceptive Trade Practices Act are therefore barred by Leapfrog’s qualified immunity. -16- THIRD DEFENSE (Consent – as to Counts I & II) 69. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 65], as if fully set forth herein. 70. Leapfrog uses data—including hospitals’ self-reported data—to inter alia determine and publish Leapfrog Hospital Safety Grades. 71. Plaintiff submitted data to the Leapfrog Hospital Survey on or around June 7, 2017 and specifically affirmed that “[Plaintiff] understand[s] that The Leapfrog Group will make this information and/or analyses of this information public through the survey results public reporting ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 37 of 46 website, The Leapfrog Group’s Hospital Safety Grade, and/or other Leapfrog Group products and services.” 72. Plaintiff declined numerous opportunities to change or re-submit its data regarding CPOE use at a time that would have affected its Fall 2017 Leapfrog Hospital Safety Grade. 73. Plaintiff’s claims for defamation per se and under the Uniform Deceptive Trade Practices Act are therefore barred because Plaintiff consented to the allegedly deceptive or defamatory statement. FOURTH DEFENSE (Broadcaster’s Exception to the Illinois Uniform Deceptive Trade Practices Act – as to Count I) 74. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 70], as if fully set forth herein. 75. The Illinois Uniform Deceptive Trade Practices Act expressly does not apply to “publishers, broadcasters, printers or other persons engaged in the dissemination of information or reproduction of printed or pictorial matter who publish, broadcast or reproduce material without knowledge of its deceptive character.” 815 ILCS 510/4(2). -17- 76. Leapfrog is a publisher and/or other person engaged in the dissemination of information within the meaning of the Illinois Uniform Deceptive Trade Practices Act. 77. Because Leapfrog did not have personal access or knowledge of Plaintiff’s data, and also because Plaintiff specifically affirmed the accuracy of the data that Plaintiff provided to Leapfrog, Leapfrog did not have knowledge that Plaintiff’s data was anything other than true and accurate. 78. Thus, in all events any publication or reproduction of information at issue in Count I would have fallen outside the application of the Illinois Uniform Deceptive Trade Practices Act. 79. Plaintiff’s claim under the Illinois Uniform Deceptive Trade Practices Act is ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 38 of 46 therefore barred by the act itself pursuant to 815 ILCS 510/4(2). FIFTH DEFENSE (Anti-SLAPP Protection Under the Citizen Participation Act – 735 ILCS 110/1 et seq. – as to all Counts) 80. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 76], as if fully set forth herein. 81. As set forth in 735 ILCS 110/5, Illinois has a public policy that the constitutional rights of citizens and organizations to be involved and participate freely in the process of government must be encouraged and safeguarded with great diligence. 82. The information, reports, and other expressions provided by citizens are vital to the operation of government, the making of public policy and decisions, and the continuation of representative democracy. Accordingly, the laws, courts, and other agencies of Illinois must provide the utmost protection for the free exercise of these rights. 83. Plaintiff’s claims are based on, related to, and in response to Leapfrog’s acts in determining the Fall 2017 Leapfrog Hospital Safety Grade for Plaintiff in furtherance of -18- Leapfrog’s rights to speak or otherwise to participate in government through its reporting endeavors in the U.S. health care markets. 84. The published statements were made truthfully, based on Plaintiff’s own certification of accuracy, making Plaintiff’s claims of deception and defamation meritless and purely retaliatory in nature. 85. Leapfrog’s genuine aim as an organization, and in determining the Fall 2017 Leapfrog Hospital Safety Grades, is to procure favorable government action, results, and/or outcomes for everyone affected by the U.S. health care system. 86. Leapfrog is therefore immune from liability for the acts it took in furtherance of its ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 39 of 46 constitutional rights pursuant to 735 ILCS 110/15. SIXTH DEFENSE (Waiver – as to all Counts) 87. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 83], as if fully set forth herein. 88. Like all hospitals, Plaintiff had the right to, and the benefit of, multiple opportunities to review and, if warranted, amend or correct the data submitted to Leapfrog for use in the Fall 2017 Leapfrog Hospital Safety Grade. 89. Through publically available time tables, grading guidelines, and multiple notifications, Plaintiff had actual or constructive knowledge of its rights and benefits as they pertained to the Fall 2017 Leapfrog Hospital Safety Grade. 90. Plaintiff relinquished its right to update or revoke its self-reported data as they pertain to the Fall 2017 Leapfrog Hospital Safety Grade after receiving numerous conspicuous notices of several opportunities to review and revise its data and its Safety Grade yet at every opportunity declined to do so for a period of several months. -19- 91. All of Plaintiff’s claims are therefore barred by waiver. SEVENTH DEFENSE (Assumption of Risk – as to all Counts) 92. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 88], as if fully set forth herein. 93. By submitting data, affirming its accuracy, and allowing it to become and remain published by Leapfrog for months before raising any issues with it, Plaintiff voluntarily assumed an open and obvious risk of harm arising from its own negligent conduct. 94. Moreover, Plaintiff submitted data to Leapfrog on or around June 7, 2017 and ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 40 of 46 specifically affirmed that “[t]he hospital shall be liable for and shall hold harmless and indemnify The Leapfrog Group from any and all damages, demands, costs, or causes of action resulting from any inaccuracies in the information or any misrepresentations in this Affirmation of Accuracy.” 95. All of Plaintiff’s claims are therefore barred because Plaintiff assumed the risks of the harms Plaintiff now asserts, which arose from Plaintiff’s own negligent conduct. EIGHTH DEFENSE (Failure to Mitigate Damages – as to all Counts) 96. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 92], as if fully set forth herein. 97. Plaintiff had a two-week period in which it could review its self-reported CPOE data before it was published as part of its Survey results. 98. Plaintiff took no action to avoid Leapfrog’s publication of the information on Plaintiff’s self-reported CPOE data on July 25, 2017. 99. Plaintiff had until August 31, 2017 to submit data, including updated data, to Leapfrog for use in the Fall 2017 Leapfrog Hospital Safety Grade, but Plaintiff took no action to change its self-reported CPOE data that had been published online since July 25, 2017. -20- 100. Plaintiff had a three-week period in which it could review the data being used for its Fall 2017 Leapfrog Hospital Safety Grade and alert Leapfrog of any data discrepancies, but Plaintiff took no action to alert Leapfrog of any data discrepancies in the CPOE data that had been published online since July 25, 2017. 101. Through this series of events, Plaintiff failed to take reasonable steps to avoid or mitigate the consequences of the actions that Leapfrog was predictably taking, in accordance with its pre-established processes. 102. All of Plaintiff’s claims and damages are therefore barred and otherwise ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 41 of 46 unrecoverable due to Plaintiff’s failure to mitigate damages. NINTH DEFENSE (Contributory Negligence – as to all Counts) 103. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 99], as if fully set forth herein. 104. By submitting and affirming as accurate allegedly inaccurate data, and then failing for months to identify and/or address its own purported error in time to affect the Fall 2017 Leapfrog Hospital Safety Grade, Plaintiff failed to act with the degree of care that a reasonably prudent person would have used for his or her own safety and interests under the circumstances. 105. Plaintiff’s failure to act with that degree of reasonable care was the proximate cause of Leapfrog’s allegedly injurious consideration of the data that Plaintiff self-reported to Leapfrog for use in the Fall 2017 Safety Grade. 106. All of Plaintiff’s claims are therefore barred, in whole or in part, due to Plaintiff’s contributory negligence. -21- TENTH DEFENSE (Mootness – as to all Counts) 107. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 103], as if fully set forth herein. 108. All of Plaintiff’s counts hinged on the assumption that Leapfrog would publish a “C” Leapfrog Hospital Safety Grade for Plaintiff on October 31, 2017. 109. By Agreed Order of this Court on October 30, 2017, the parties agreed that Leapfrog would not publish any Safety Grade for Plaintiff as part of the Fall 2017 Leapfrog Hospital Safety Grade publication on October 31, 2017. ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 42 of 46 110. Leapfrog has not published any Safety Grade for Plaintiff for the Fall 2017 Leapfrog Hospital Safety Grade publication. 111. All of Plaintiff’s claims are therefore moot. ELEVENTH DEFENSE (Laches – as to Count III) 112. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 108], as if fully set forth herein. 113. Plaintiff failed to act with due diligence when it, for months, failed to identify its purported error and/or bring the issue to the attention of Leapfrog, despite having access to all necessary information. 114. Leapfrog has been prejudiced as a result of Plaintiff’s months-long failure to act diligently, followed by the urgent demands and attendant costs and fees associated with this present suit. 115. Equity therefore cannot allow Plaintiff to obtain an equitable injunctive remedy now, after Plaintiff’s long lack of diligence has resulted in prejudice to Leapfrog. -22- TWELFTH DEFENSE (Equitable Estoppel – as to Count III) 116. Leapfrog re-alleges and incorporates the allegations in paragraphs [1 through 112], as if fully set forth herein. 117. Plaintiff made a misrepresentation to Leapfrog when it affirmed the accuracy of its June 7, 2017 data submission. 118. At the time of Plaintiff’s June 7, 2017 data submission and Affirmation of Accuracy, Plaintiff had knowledge of its own data and Leapfrog’s Survey instructions such that it knew or should have known that its representations as to the accuracy of its submission were ELECTRONICALLY FILED 12/5/2017 11:25 PM 2017-CH-14420 PAGE 43 of 46 inaccurate. 119. At the time of Plaintiff’s June 7, 2017 data submission, Leapfrog did not know, and could not have known, that Plaintiff’s Affirmation of Accuracy was untrue. 120. Plaintiff intended and/or reasonably expected that Leapfrog would act upon Plaintiff’s June 7, 2017 data submission and Affirmation of Accuracy. 121. Leapfrog in good faith relied upon Plaintiff’s June 7, 2017 data submission and Affirmation of Accuracy to the detriment of Leapfrog. 122. Leapfrog would be prejudiced if Plaintiff were now permitted to deny the truth of the June 7, 2017 data submission and Affirmation of Accuracy upon which Leapfrog relied in calculating Plaintiff’s Fall 2017 Hospital Safety Grade. 123. As a result, Plaintiff should be estopped by its change of position from obtaining the equitable injunctive relief it seeks. -23- ELECTRONICALLY FILED 12/5/2017 11 25 PM 2017-CH-14420 PAGE 44 0f 46 Dated: December 5, 20 7 Respectfully submitted, Jeffrey J. Bushofsky Timothy R. Farrell David W. Nordsieck Ropes Gray LLP 191 North Wacker Drive, 32nd Floor Chicago, IL 60606 T: (312) 845-1200 F: (312) 845-5500 effrey.Bushofsky@ropesgray.com Timothy.Farrell@ropesgray.com DavidNordsieck@ropesgray.com Firm ID: 47644 Attorneys for The Leap?og Group 2017-CH-14420 ELECTRONICALLY FILED 12/5/2017 11 25 PM PAGE 45 0f 46 VERIFICATION BY CERTIFICATION Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certi?es that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and believe and as to such matters the undersigned certi?es as aforesaid that she verily believes the same to be true. @9347ka BMErica' Mobley Title: Director of Operations, The Leapfrog Group Date: December 5, 2017 CERTIFICATE OF SERVICE I hereby certify that on this 5th day of December, 2017, true and correct copies of The Leapfrog Group?s Veri?ed Answer and Af?rmative Defenses to Plaintiff?s Veri?ed Complaint for Injunctive Relief were served on counsel of record for Saint Anthony Hospital by electronic mail, at the following addresses: Edwin E. Brooks, Esq. Steven D. Hamilton, Esq. Jason T. Mayer, Esq. MCGUIREWOODS LLP 77 W. Wacker Drive, Suite 4100 Chicago, IL 60601 Tel: (312) 849-8100 ebrooks@mcguirewoods.com shamilton@mcguirewoods.com jmayer@mcguirewoods.com Attorneys for Saint Anthony Hospital ELECTRONICALLY FILED 12/5/2017 11 25 PM PAGE 46 of 46 Dated: December 5, 2017 By: "Haw Dam. Nordsieck ROPES GRAY LLP 191 North Wacker Drive, 32nd Floor Chicago, IL 60606 T: (312) 845-1200 F: (312) 845?5500 David.Nordsieck@ropesgray.com Firm ID: 47644 Attorney for The Leapfrog Group