APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN E. SYPE, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This is a second appeal in this case. On September 17, 1976, the plaintiff filed a nine-count complaint for malicious prosecution against a total of nine defendants. Counts I, II, IV and IX, against the Cherryvale Security Systems, Inc., Marshall Field & Co. and the store manager, were dismissed for failure to state a cause of action. This court affirmed that dismissal in Geisberger v. Vella (1978), 62 Ill. App.3d 941, 379 N.E.2d 947. Counts V, VI, VII and VIII against Carolyn Bergmark and the arresting officer, O.A. Gazouski, are still pending.
The facts in this case are set forth in our prior opinion of Geisberger v. Vella. Without going into detail, therefore, the complaint is based upon the fact that an employee of a physician furnished the name of the plaintiff as a possible suspect in the armed robbery of the Marshall Field store in Cherryvale Shopping Mall, located in Cherry Valley, Illinois. He was arrested and the criminal case against him was subsequently dismissed.
On June 30, 1977, the plaintiff filed a supplemental three-count complaint against the defendant, Dr. Hans Willuhn, under three different legal theories. Count X alleged that the disclosure of plaintiff's name by Carolyn Bergmark, the employee of the defendant Dr. Willuhn, constituted a breach of the physician-patient privilege established by section 5.1 of "An Act in regard to evidence * * *" (Ill. Rev. Stat. 1973, ch. 51, par. 5.1). Count XI alleged that the disclosure of the plaintiff's name constituted a breach of an implied contract not to divulge confidential information acquired through the physician-patient relationship. Count XI further alleged that this implied contract arose out of custom and usage in the community; the statutory physician-patient privilege set out in section 5.1 (Ill. Rev. Stat. 1973, ch. 51, par. 5.1); the Hippocratic oath and the Canons of Medical Ethics. Count XII alleged that the disclosure of plaintiff's name, resulting in his arrest, constituted an invasion of privacy. The trial court dismissed all three counts for failure to state a cause of action and the plaintiff appeals.
This is a matter of first impression in the State of Illinois as to the right of a patient to recover damages from a physician for the alleged unauthorized disclosure of confidential information. In this case the only confidential information released by the employee of the doctor was the name of the patient. This issue has been the subject of litigation in other States and attention is directed to the annotations found in 20 A.L.R.3d 1109 (1968).
The only question presented here is whether the disclosure of a patient's name by a doctor or his employee is sufficient to support a cause of action.
1 Unlike the attorney-client relationship, the common law does not recognize a privilege for communication between a doctor and a patient. (See 8 Wigmore on Evidence § 2380 (McNaughton rev. 1961).) *fn1 Illinois has statutorily protected from disclosure certain information obtained by a physician in his professional relationship with a patient. (Ill. Rev. Stat. 1977, ch. 51, par. 5.1.) Whether a patient's name is protected, therefore, depends entirely on the extent of the privilege granted under that paragraph. That statute provides, in pertinent part, as follows:
"No physician or surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient, * * *." (Emphasis added.)
The privilege is extended to "any information" acquired by a physician in a professional capacity which is "necessary" to enable him to "serve" his patient. The Illinois statute is similar, in substance, to those of other States and confines the privilege to information concerning the patient's medical condition or the physician's diagnosis and treatment. The disputed communication, to be within the rule of this exclusion, must have been necessary for the performance of a professional duty on the part of the physician. That is, a duty to treat, prescribe or act for the patient. We find this spelled out in Corpus Juris Secundum:
"* * * the privilege exists as to, and only as to, information necessary to enable the physician to act or serve in a professional capacity, that is, to information necessary to act or prescribe for the patient, or diagnose or treat his ailments, * * *." (97 C.J.S. Witnesses § 295(b)(2) (1957).)
Most of the jurisdictions who have passed upon the question presented here have, in the great majority, held that the name and address of a patient alone is not confidential information protected by the statutory provision of privilege. See, e.g., Ascherman v. Superior Court (1967), 254 Cal.App. 506, 62 Cal. Rptr. 547, where the court held that the name of the patient had no relation to treatment by the physician or to the ailment of the patient as the physician need not know the name of the patient in order to treat him, and was, therefore, not privileged information. (See also Marcus v. Superior Court (Cal.App. 1971), 95 Cal.Rptr. 545; Kaplan v. Manhattan Life Insurance Co. of New York (D.C. Cir. 1939), 109 F.2d 463; Wolf v. People (1947), 117 Colo. 279, 187 P.2d 926.) Likewise, the name of the patient is not privileged under New York or Federal law. (In re Albert Lindley Lee Memorial Hospital (2d Cir. 1953), 209 F.2d 122.) The only case to the contrary, apparently, is that of Schechet v. Kesten (1964), 372 Mich. 346, 126 N.W.2d 718. The cases cited by the plaintiff herein are clearly distinguishable from the majority opinion quoted above. Costa v. Regents of University of California (Cal.App. 1952), 247 P.2d 21, rev'd on other grounds (1953), 116 Cal.App.2d 445, 254 P.2d 85, and Marcus v. Superior Court (Cal.App. 1971), 95 Cal.Rptr. 545, involved plaintiffs in malpractice actions who were seeking the names of other patients treated by the defendant doctors. In Marcus the court said:
"We recognize that the disclosure of a patient's name does not necessarily violate the privilege. * * * In the case at bench it is not merely the disclosure of the name and address, but the joining of that information with the limitation in the question that these were patients who had received the specified tests." 95 Cal.Rptr. 545, 547.
2 Finally, in a related context, the name and the identity of a client does not generally qualify as confidential information protected from disclosure by the attorney-client privilege. (Leindecker v. Waldron (1869), 52 Ill. 283.) We follow the overwhelming majority of the courts> of the United States which have held that the disclosure of the name alone of the patient by a doctor or his agents does not violate the patient-doctor privilege established by section 5.1. (Ill. Rev. Stat. 1973, ch. 51, par. 5.1.) Having held that the disclosure of the plaintiff's name does not violate section 5.1, it is unnecessary to consider whether the defendant physician can be held liable when any unauthorized disclosure is made by an employee. We need not reach the very vicarious liability which might arise under the statutory privilege which specifies physicians and surgeons and includes agents of the physicians only by implication. In a number of cases, for example, the privilege has been denied to nurses on the theory that it is in derogation of the common law and should be particularly confined to those expressly named. On the other hand, other courts> have recognized the privilege for agents, specifically nurses, on the view that it would be ineffective if agents could, in fact, testify. See 61 Am.Jur.2d Physicians and Surgeons § 102 (1972), and Annot., 47 A.L.R.2d 742 (1956).
3 The second issue presented is whether the plaintiff's complaint herein, found in count XI, states a cause of action for the breach of an implied contract not to disclose confidential information acquired through the physician-patient relationship. We find that, for all practical purposes, the breach of a confidential relationship and the breach of contract are probably co-extensive. In other words, those disclosures which violate the statutory privilege also define what is actionable under a contract theory. The cases that have recognized the contract theory as a cause of action make it clear that the action lies for the disclosure of "personal" information, e.g., information relating to the patient's mental or physical condition or the physician's diagnosis or treatment. (See Horne v. Patton (Ala. 1974), 291 Ala. 71, 287 ...