APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant Dr. Regalado Florendo was held in contempt of court for failure to comply with a subpoena duces tecum issued by a Cook County grand jury. He was ordered committed to jail until he complied with the subpoena. Incarceration was stayed pending resolution of defendant's appeal.
Defendant asks this court to determine whether the statutory physician-patient privilege (Ill. Rev. Stat. 1979, ch. 51, par. 5.1) or the terms of the Illinois Abortion Law of 1975 (Ill. Rev. Stat. 1979, ch. 38, par. 81-21 et seq.) exempt him from having to comply with the grand jury subpoena.
On February 21, 1979, a Cook County grand jury issued a subpoena duces tecum to the Michigan Avenue Medical Center, directed to the Center's president, Dr. Regalado Florendo. The subpoena commanded defendant to produce "any and all medical records including but not limited to treatment, correspondence and billing and receipt records" for numerous listed case numbers as well as for certain named individuals.
Defendant made a motion to quash the subpoena. *fn1 Apparently, the circuit court ruled that photocopies of the identification cards of public aid recipient-patients of defendant's clinic were not protected under the physician-patient privilege, and ordered those photocopies to be turned over to the grand jury. (This order is not found in the record.) Defendant failed to do so. The State then petitioned for a rule to show cause why defendant should not be held in contempt of court for refusing to turn over "certain documents" to the grand jury. Defendant filed a motion to strike the State's petition.
The circuit court held a hearing on these various motions. The court ruled that the secrecy of the grand jury would protect any disclosures defendant would make. The specific "impounding order" entered by the court in furtherance of its ruling decreed:
"[T]hat transcripts of all testimony given in respect to [the subpoena] be impounded by the Court until further order. It is further ordered that all documents subpoenaed by the [grand jury] and the contents thereof not be released or revealed to anyone other than the Grand Jury. It is further ordered that all witnesses disclosed by virtue of testimony or delivery of documents to the Grand Jury are not to be inquired of other than before the Grand Jury unless there is a specific and full waiver of the physician-patient privilege by the witness."
The court also denied defendant's motion to strike the State's petition for a rule.
Defendant thereafter refused to turn the documents over to the grand jury. The court then entered the requested rule to show cause, and found defendant to be in contempt of court. He was ordered incarcerated until he complied with the court's disclosure order.
Defendant claims that the statutory physician-patient privilege exempts him from releasing the requested information to the grand jury.
• 1 The statute states that no physician shall be permitted to disclose any information he may have acquired in attending any patient in a professional character if the information was necessary to enable him to professionally serve such patient. There are, however, seven listed exceptions to this disclosure restriction. Ill. Rev. Stat. 1979, ch. 51, par. 5.1.
The State argues that two of these exceptions are relevant to this case: the exception applicable in actions, civil or criminal, against the physician for malpractice, and the exception applicable in any criminal action where the charge is either murder by abortion, attempted abortion, or abortion. The State does not indicate its basis for asserting that a malpractice action is involved here. We therefore find that exception to be irrelevant. The State claims that "clearly, this [is] a criminal action against the doctor." In examining the subpoena served upon defendant, we note that it states only that a certain complaint against "John Doe" is being investigated. Nothing therein indicates the nature or subject of the grand jury's investigation. *fn2 In nearly identical circumstances, the Third Division of this court has recently ruled that a presumption cannot be made that the grand jury's investigation involves a criminal action for abortion without evidence to support such a claim. (People v. Bickham (1980), 90 Ill. App.3d 897, 901-02, 414 N.E.2d 37, appeal allowed (1981), ___ Ill.2d ___ .) We therefore find this exception to the privilege to be irrelevant as well. The availability of the statutory privilege thus may not be avoided on the basis of one of that provision's listed exceptions.
The State argues that the privilege has no application when, as here, the only thing sought from the physician are the names of his patients. In support thereof, the State cites Geisberger v. Willuhn (1979), 72 Ill. App.3d 435, 437, 390 N.E.2d 945. Defendant notes and accepts this as a general proposition, but responds that here, revelation of the patient's name will of necessity also reveal the type of treatment received, since the Medical Center performs only abortion-related functions. In support of this ...