APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
SULLIVAN, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 10, 1982.
The plaintiffs in this consolidated appeal filed complaints alleging, inter alia, medical malpractice and drug product liability. The plaintiffs alleged that they had suffered injuries from injections of discase, the trade name used by defendant Baxter Laboratories, Inc., for chymopapain, a Federal Drug Administration investigational drug. During discovery, the plaintiffs sought the production of the medical records of patients, other than the plaintiffs, who also had been treated with discase at the defendant hospital, Central DuPage Hospital (the hospital). The hospital's objections were overruled, and the trial court subsequently ordered the hospital to produce the admission and discharge summaries (the records) of some 800 patients. The court stated that the hospital could strike the names and identifying numbers of the patients from the records. The hospital failed to comply with the court's orders and was held in contempt of court. The hospital appeals.
The issues presented in this appeal are: (1) whether a hospital can assert the physician-patient privilege; (2) whether the physician-patient privilege protects the hospital's records; (3) whether the physician-patient privilege has been waived by the hospital or the patients; (4) whether the hospital records are relevant to the plaintiffs' actions; and (5) whether the records are protected by the patients' constitutional and Federal statutory rights of privacy and due process. *fn1
Although communications between a doctor and patient were not protected at common law (The Physician-Patient Privilege, 56 Nw. U.L. Rev. 263(1961)), the State of Illinois has created a statutory protection for certain information obtained by a physician in his professional relationship with a patient. (People v. Bickham (1980), 90 Ill. App.3d 897, 414 N.E.2d 37, aff'd (1982), 89 Ill.2d 1, 431 N.E.2d 365.) The Illinois statute, which is similar in substance to those of other States (Geisberger v. Willuhn (1979), 72 Ill. App.3d 435, 390 N.E.2d 945), provides in pertinent 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 * * * (2) in actions, civil or criminal, against the physician for malpractice, (3) with the expressed consent of the patient, * * * (4) in all civil suits brought by or against the patient, * * * wherein the patient's physical or mental condition is an issue, * * * (6) in any criminal action where the charge is either murder by abortion, attempted abortion or abortion * * *." Ill. Rev. Stat. 1979, ch. 51, par. 5.1.
The plaintiffs in the instant case argue that the statute only permits the physician or surgeon to assert the privilege on behalf of the patient. Thus, they contend that the hospital does not have standing to claim the physician-patient privilege.
We believe that in certain instances a hospital can assert the physician-patient privilege to protect the records of its patients. While no Illinois court has ruled on this issue, we believe that such a conclusion can be drawn inferentially from the case of Cannell v. Medical & Surgical Clinic, S.C. (1974), 21 Ill. App.3d 383, 315 N.E.2d 278. Cannell held that the defendant medical clinic had a duty to disclose a patient's medical history, upon the patient's request, to third parties. In reaching this conclusion the court quoted the following passage from Emmett v. Eastern Dispensary & Casualty Hospital (D.C. Cir. 1967), 396 F.2d 931, 935:
"`The responsibilities of physicians and hospitals to protect their patients' medical facts from extra-judicial exposure spring from the confidential nature of the relationship. We find in the fiducial qualities of that relationship the physician's duty to reveal to the patient that which in his best interests it is important that he should know.'" (Emphasis added.) 21 Ill. App.3d 383, 385, 315 N.E.2d 278, 280.
This issue specifically was decided by the Arizona courts> in Tucson Medical Center Inc. v. Rowles (1974), 21 Ariz. App. 424, 520 P.2d 518. The Arizona statute construed in that case provided that in a civil action physicians and surgeons could not, without the consent of their patients, be examined as to certain physician-patient communications. (Ariz. Rev. Stat. Annot. § 12-2235 (1982).) In holding that the hospital could assert the privilege on behalf of the patient, the court stated:
"We have neither discovered nor have we been cited to authority holding directly that a hospital cannot assert the privilege as to records containing confidential material when both the physician and the patient are absent from the proceedings. * * * [O]ur decision above that hospital records are covered by the physician-patient privilege mandates that the hospital assert this privilege when neither the patient nor his physician are parties to the proceeding. To hold otherwise would deprive a patient of the confidentiality granted him by A.R.S. § 12-2235 * * *." 21 Ariz. App. 424, 429, 520 P.2d 518, 523.
• 1 Central DuPage Hospital was the only defendant from whom the plaintiffs sought the records of patients who were treated with discase. Therefore, we hold that the hospital was mandated to assert the physician-patient privilege to insure that the patients' records would be protected in accordance with the intentions of our statute. *fn2
The next issue raised in this appeal is whether the Illinois physician-patient privilege is applicable in the case at bar. The plaintiffs contend that the records were discoverable because they met the second of seven statutory exceptions to the privilege — "in actions, civil or criminal, against the physician for malpractice" (Ill. Rev. Stat. 1979, ch. 51, par. 5.1). It is the plaintiffs' position that this exception is not limited to the records of the patient who brings an action for malpractice. They argue that the exception should apply to the records of all patients of the physician who is being sued for malpractice.
As we stated in People v. Bickham, the purpose of the physician-patient privilege is to encourage free disclosure between the physician and patient and to protect the patient from the embarrassment and invasion of privacy which disclosure would entail. (See also The Physician-Patient Privilege, 56 Nw. U.L. Rev. 263, 266-69 (1961).) The physician-patient privilege, as with other statutory privileges, is a legislative balancing between relationships that society feels should be fostered through the shield of confidentiality and the interests served by disclosure of the information in a court of law. (See In re Westland (1976), 48 Ill. App.3d 172, 362 N.E.2d 1153; ...