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People v. Bickham

OPINION FILED NOVEMBER 19, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

ARNOLD BICKHAM, M.D., RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD J. FITZGERALD, Judge, presiding.

MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 29, 1980.

On January 26, 1979, the Circuit Court of Cook County found Dr. Arnold Bickham in contempt of court for failure to comply with two subpoenas duces tecum issued by the November 1978 grand jury. The court ordered Dr. Bickham incarcerated until he purged himself of contempt. The order of incarceration was stayed pending Dr. Bickham's appeal of this order.

The grand jury issued the two subpoenas requesting that Dr. Bickham, as president of the Water Tower Reproductive Center, Ltd., (Water Tower) produce various medical records of 63 women, including those of Sherry Emry. Water Tower filed a petition to quash the subpoenas asserting that the medical records were the personal property of Dr. Bickham. Water Tower further claimed that the documents were protected by the physician-patient privilege.

Subsequently, Dr. Bickham was presented with a "Waiver of Doctor/Patient Privilege" executed by the administratrix of the estate of Sherry Emry. The waiver authorized Water Tower to release all materials concerning the treatment of Emry to any duly authorized investigative body of the State of Illinois.

Following a hearing on the petition to quash the subpoenas, the court ordered Dr. Bickham to produce the records for an in camera inspection in order to determine whether the documents were subject to any privilege. Dr. Bickham refused to comply with this order and failed to produce the records, which he claimed were his personal property. The State filed a petition for a rule to show cause why Dr. Bickham should not be held in contempt of court.

The court conducted an evidentiary hearing to determine whether the records were the personal property of Dr. Bickham or of Water Tower. Mindy Trossman, an investigator for the Better Government Association, testified that she worked at Water Tower from August 26 to October 21, 1978, as a nurse's aid and counselor. Her responsibilities included assisting the patients and doctors and completing sections of the patients' charts.

Trossman testified that patients who came to Water Tower for a pregnancy termination were given an eight-page booklet with the name of Water Tower on the cover. This booklet was the patient's chart. This booklet was not given to Dr. Bickham's private patients who visited the facility.

In addition to Dr. Bickham, four other doctors performed abortions at Water Tower and used the patient chart. Trossman was instructed by a medical assistant to indicate on the chart that Dr. Bickham was the surgeon, regardless of which doctor performed the abortion. When another doctor was the surgeon, he would leave the physician's signature space blank and initial the back of the chart.

Trossman also testified that Dr. Bickham examined his private patients in a room which did not contain abortion equipment. The charts of these patients were hung on the door of the examining room and no other doctor would enter the room. The private patients received a different receipt than the one given to the abortion patients.

Michael T. Berger, the manager of the professional review section of the Department of Public Aid, testified on behalf of Dr. Bickham. His section, which conducted audits of participants in the Medicaid program, was auditing Dr. Bickham in connection with services he performed at a second facility, Bio-Genetics.

Berger testified that Dr. Bickham had informed the department that he was unable to produce certain records requested in connection with the audit because they were in the custody of Bio-Genetics. The department rejected this claim and considered that the records belonged to Dr. Bickham. Berger further stated that if a doctor is unable or refuses to produce the records, the department will take administrative action to terminate his participation in the Medicaid program.

At the conclusion of the hearing the court ruled that the records belonged to Water Tower and must be produced before the grand jury. On January 26, 1979, when Dr. Bickham appeared before the grand jury and refused to turn over the subpoenaed documents, he was held in contempt of court.

The first issue raised on appeal is whether the trial court's finding that the subpoenaed records belonged to Water Tower was erroneous. Dr. Bickham concedes that the subpoenaed records were located at the Water Tower facility, an ambulatory surgical treatment center licensed by the Illinois Department of Public Health. He contends that because the facility is not required to maintain ...


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