With A Suggestion That The Defendant Is Legally Blind – Can Plaintiff Get Defendant’s Medical Records?
July 10th, 2019
Palm v. Holocker
2018 IL 123152
By Robert Handley
BURKE & HANDLEY, P.C.
799 Roosevelt Road, Building 6, Suite 108
Glen Ellyn, Illinois 60137
On October 18, 2014, Defendant, Ruben Holocker struck Plaintiff, Scarlett Palm, a pedestrian crossing an intersection. Plaintiff filed her personal injury action in Marshall County, Illinois. Plaintiff claimed negligence. Defendant filed his answer denying negligence and asserted affirmative defenses alleging Plaintiff was more than 50% responsible for her injuries by: improperly crossing the street; failing to keep a proper lookout; and that she was under the influence of an intoxicant.
A few weeks after the incident Plaintiff learned, via a Facebook post, from someone who allegedly knew Defendant, that he is legally blind, has had many other collisions, and that he has never reported them for fear of losing his driving privileges.
Because of that, Plaintiff served Interrogatories requesting, among other things, the name and address of any physician, ophthalmologist, optician, or other healthcare professional who performed any eye examination within the last 5 years. Plaintiff also requested the name of any physician or healthcare professional who examined Defendant within the last 10 years.
Defendant refused to answer the Interrogatories and interposed objections claiming the questions violate HIPAA, doctor-patient privilege, and that Defendant has not placed his medical condition in issue in this matter.
At the Motion to Compel the answers to the Interrogatories, Plaintiff argued that the Defendant’s ability to see and drive was “at issue” because he drove his vehicle into the pedestrian. Contemnor, Defendant’s attorney, Karl Bayer, argued that the Defendant’s medical information was privileged because the defense was not putting the Defendant’s medical condition at issue. Contemnor acknowledged that Defendant requires a doctor’s note to drive but explained that vision was not at issue because Defendant was not even looking in Plaintiff’s direction at the time of the collision but instead waving to a pedestrian by the side of the road.
The Trial Court granted Plaintiff’s Motion to Compel and ordered Defendant to answer the Interrogatories. The Trial Court also entered a HIPAA Order applicable to both Plaintiff and Defendant at the hearing.
Defendant still refused to answer the interrogatories and Plaintiff moved for sanctions. The Trial Court found that Plaintiff had a legitimate reasonable cause to believe that the Defendant had sight problems that could have been related to the accident and that Plaintiff had “a right to look for that.” Therefore, the Trial Court held Defendant’s Attorney in contempt and imposed a $5.00 per day fine until he submitted answers to the interrogatories.
Contemnor appealed, and the Appellate Court reversed the contempt finding. After addressing some procedural issues, the Parties briefed the broader issue of whether the physician-patient privilege applied even though the Trial Court’s holding was that Defendant had to answer the interrogatories. The Court noted that a ruling that the privilege applied would render the interrogatories pointless because if Plaintiff could not obtain the Defendant’s medical records the answer to the two interrogatories would not lead to discoverable information.
Ultimately, the Appellate Court held that the records were privileged under Section 8-802 of the Code of Civil Procedure and that the exception in subsection (4) did not apply. The subsection exception (4) provides:
“In all actions brought by or against the patient . . . wherein the patient’s
physical or mental condition is an issue.” (emphasis added)
Although Plaintiff argued that “an issue” as used in this subsection simply means relevant. The Appellate Court disagreed finding that if the legislature meant “an issue” to mean “relevant” it would have simply said that the privilege does not apply in any litigation. The
Appellate Court also held that Section 8-802(4) applies only when a Defendant affirmatively places his or her health at issue and that a Plaintiff cannot waive someone else’s privilege.
SUPREME COURT DECISION
The Supreme Court allowed Plaintiff’s Petition for Leave to Appeal. Justice Thomas delivered the Judgment with Opinion. Chief Justice Karmeier and Justices Kilbride, Garman, Burke, Theis, and Neville concurred in the judgment and opinion.
The Supreme Court began its analysis by concluding that, “Resolution of this appeal turns on the meaning of ‘an issue’ in Section 8-802(4), which provides that the privilege does not apply in any action wherein ‘the patient's physical or mental condition is an issue’.”
Plaintiff argued that the Appellate Court wrongfully interpreted Section 8-802(4) because the section only requires that the patient’s physical or mental condition be “an issue.” It does not say that only the patient may put his or her medical condition at issue. Plaintiff also pointed out that there are several criminal Appellate decisions where the State was permitted to put a Defendant’s medical condition at issue. Defendant countered that criminal cases have separate rules for the purposes of Section 8-802(4). Although there is no distinction in 8-802 between criminal and civil matters, Justice Thomas agreed that the Courts have treated civil and criminal actions differently by allowing the State to waive a Defendant’s privilege by putting his or her physical or mental condition at issue.
After discussing a New Mexico case at length, and a North Carolina case which took the opposite view, the Court came to the conclusion that, “The legislature’s intent in enacting Section 8-802(4) is not clear, and the cases interpreting that Section are inconsistent in applying it.” The Court went on to hold that the issue of whether a Plaintiff may put a Defendant’s medical condition in issue for purposes of Section 8-802(4) is ultimately not presented by the facts of this case. The Supreme Court concluded that the Appellate Court said more than it needed to in deciding the appeal. The Court went on to state that, “We need not resolve whether a Plaintiff may put a Defendant’s medical condition at issue so as to waive the Defendant’s privilege under Section 8-802(4) because, on the record before (them), Plaintiff has not put Defendant’s medical condition at issue.”
After a lengthy discussion of the word “issue” and “issue of fact” the Court came to the conclusion that the Defendant’s medical condition is not “an issue” in this case. Although the
Trial Court thought that the allegation that the Defendant failed to keep a proper lookout might have put his vision at issue, that is not the same as alleging someone has vision problems.
The Court further stated that although the Appellate Court correctly ordered the Plaintiff’s Counsel to relinquish the Defendant’s medical records, their holding was too broad. The Appellate Court ordered the Plaintiff’s Attorney to “promptly relinquish possession of Holocker’s medical records ‘from all sources.’” Defendant did not assert the privilege in naming the doctor who provided the report that allowed him to renew his drivers license.
The purpose of the physician-patient privilege is to encourage full disclosure to ensure the best diagnosis. When a patient obtains a physician’s report in order to maintain his driving privileges, he is not seeking treatment. And disclosing the privileged information to a third party waives the privilege. Even though Illinois has a Statute providing that medical records turned over to the Secretary of State are confidential, that Statute says that records may be turned over if directed by an Order of Court of competent jurisdiction. Therefore, the Vehicle Code leaves it to the discretion of the Court to determine whether the information is necessary. In this instance because the Defendant answered the interrogatory disclosing his doctor’s name; and the Plaintiff subpoenaed that report; and the Court ordered the Secretary of State to comply with the subpoena; and that portion of the Order was not appealed to the Supreme Court; on the record before it, because there was no appeal of the Court’s order requiring the Secretary of State to comply with the subpoena, Plaintiff is entitled to use that record.
In this case, neither the Defendant’s physical or mental condition is an issue. Therefore, privilege under 8-802 applies. The Supreme Court disagreed with the Appellate Court’s analysis that this case presents a question of whether the Plaintiff may put a Defendant’s medical condition an issue for the purposes of 8-802(4). Because the Plaintiff did not put the Defendant’s medical condition at issue, it was not necessary for the Appellate Court to decide that issue.
Finally, the Court urged the legislature to address Section 8-802(4) to make its intentions clearer by clarifying how something becomes “an issue” for purposes of this Section; whether one party may put another party’s physical or mental condition at issue, and if the Rule is any different in its application for civil and criminal cases.
It seems that amendatory legislation may be in order.