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People v. Mileris

OPINION FILED DECEMBER 17, 1981.

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

v.

JONAS MILERIS, RESPONDENT-APPELLANT.



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

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 9, 1982.

On August 5, 1980, a Cook County grand jury issued a subpoena duces tecum to Dr. Jonas Mileris. The subpoena ordered him to appear on August 13, 1980, and give evidence on a certain complaint against him and to bring with him "any and all original documents which may tend to show services rendered by you and bills submitted by you during the period December 1, 1977 and the 15th day of July, 1980, regarding those individuals whose name and social security number appears on the attached Rider; such documents shall include but are not limited to medical history records, patient charts, treatment records, examination records, and billing records for services." On an attached sheet were the names and social security numbers of 29 individuals. Mileris filed a motion to quash the subpoena on the grounds that: (1) the subpoena was overbroad and amounted to a fishing expedition; (2) the subpoena requested the production of material subject to the physician/patient privilege; (3) the subpoena requested the production of material in violation of the fifth amendment right against self-incrimination. This motion was denied on August 13, 1980, apparently without a hearing; at least none is referred to and no report of proceedings of August 13, 1980, appears in the record. When Mileris still refused to turn over the documents, the State petitioned for a rule to show cause why Mileris should not be held in contempt of court. The court entered an order finding Mileris in contempt of court finding inter alia: (1) the grand jury was investigating possible violations of section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat 1979, ch. 38, par. 16-1) (theft); (2) Mileris was a target defendant of that investigation; (3) the business records subpoenaed are respondent's records of services rendered to persons pursuant to the Illinois Workmen's Compensation Act. On appeal Mileris has not contended that these findings were erroneous or unsupported by the evidence; accordingly, they are binding on the parties and this court. Based on these findings the court sentenced Mileris to the custody of the sheriff for the remainder of the term of the grand jury or until he complied with the subpoena. The court then stayed execution pending appeal.

I

Mileris makes no claim that he is unable to ascertain what documents have been demanded and there is thus no question posed concerning the specificity of the demand. (People v. Dorr (1970), 47 Ill.2d 458, 265 N.E.2d 601, cert. denied (1971), 402 U.S. 929, 28 L.Ed.2d 863, 91 S.Ct. 1527.) Mileris contends, however, that the demand is overbroad and there has been no showing as to relevancy of any of the documents subpoenaed.

When the grand jury is functioning, society's interests are best served by a thorough and extensive investigation (Branzburg v. Hayes (1972), 408 U.S. 665, 33 L.Ed.2d 626, 92 S.Ct. 2646), and its investigative power must be broad if its public responsibility is to be adequately discharged. United States v. Calandra (1974), 414 U.S. 338, 38 L.Ed.2d 561, 94 S.Ct. 613.

• 1 The permissible breadth of a subpoena duces tecum is to be measured by the scope of the problem under investigation and a subpoena which is not unreasonably broad when measured by that standard will be sustained. Here the grand jury was investigating possible existence of theft by Mileris, a physician. The subpoena, which merely sought evidence as to such materials as medical treatment for specified patients and the charges therefor, is reasonably restricted in scope and in time span in view of the subject matter under investigation. Compare People v. Allen (1951), 410 Ill. 508, 103 N.E.2d 116, cert. denied (1952), 344 U.S. 815, 97 L.Ed. 635, 73 S.Ct. 9; People v. Dorr (1970), 47 Ill.2d 458, 265 N.E.2d 601, cert. denied (1971), 402 U.S. 929, 28 L.Ed.2d 863, 91 S.Ct. 1527.

Likewise the documents which Mileris refused to produce are patently relevant to a theft investigation of a physician. Evidence as to medical diagnosis and treatment as well as billing is pertinent to a determination whether Mileris was guilty of criminal misconduct.

II

Section 5.1 of the Evidence Act (Ill. Rev. Stat. 1979, ch. 51, par. 5.1) provides in part:

"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, except only (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide, (2) in actions, civil or criminal, against the physician for malpractice, (3) with the expressed consent of the patient, or in case of his death or disability, of his personal representative or other person authorized to sue for personal injury or of the beneficiary of an insurance policy on his life, health, or physical condition, (4) in all civil suits brought by or against the patient, his personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his estate wherein the patient's physical or mental condition is an issue * * *."

• 2 Mileris, relying on People v. Bickham (1980), 90 Ill. App.3d 897, 414 N.E.2d 37, appeal allowed (1981), 83 Ill.2d 571, contends that he is prohibited from producing the subpoenaed documents by his patients' privilege of confidentiality. We do not believe Bickham is in point. In Bickham, the grand jury attempted to subpoena medical records of 63 women who obtained abortions. As the court pointed out, the women obtained an abortion with the expectation that the information remained confidential; and disclosure of this information, even within the secrecy of the grand jury proceeding, could result in incalculable embarrassment to the women and serious damage to their personal business and family relationships. Here, however, the information was not and had not remained confidential. As found by the trial court, the records were of services rendered to persons pursuant to the Illinois Workmen's Compensation Act. As such, the information sought, or at least most of it, would already have been disclosed by the patients when making claims under the Compensation Act. (Compare People v. Florendo (1981), 95 Ill. App.3d 601, 420 N.E.2d 506.) Indeed section 8 of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8) guarantees that none of this information could remain confidential since it provides in part:

"Every hospital, physician, surgeon or other person rendering treatment or services in accordance with the provisions of this Section shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer, the employee or his dependents, as the case may be, or any other party to any proceeding for compensation before the Commission, or their attorneys."

Since under the particular circumstances there was and could have been no expectation of confidentiality we find, as did the court in Florendo, that the present facts fall outside the boundaries of the circumscription of the public's right to evidence made ...


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