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People v. Florendo





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Richard J. Fitzgerald, Judge, presiding.


Rehearing denied April 8, 1983.

On July 10, 1979, the circuit court of Cook County found defendant, Dr. Regalado Florendo, in contempt of court for failure to comply with a subpoena duces tecum issued by the March 1979 grand jury. The court ordered defendant incarcerated until he purged himself of contempt and then stayed the order pending appeal. The appellate court affirmed (95 Ill. App.3d 601), and we granted the defendant leave to appeal.

The primary issue for review is whether disclosure of a patient's identity, pursuant to a grand jury subpoena, violates the physician-patient privilege.

On February 21, 1979, the grand jury issued a subpoena requesting that defendant, as president of the Michigan Avenue Medical Center (Medical Center), produce medical, billing and receipt records for 34 listed "case numbers" and 13 named individuals. The information sought concerned public-aid-recipient patients of defendant's clinic. Pursuant to defendant's motion to quash, the trial court limited the scope of the subpoena. The court required only that defendant turn over to the grand jury photocopies of the patients' identification cards, thereby disclosing their names. Defendant failed to do so, and the State petitioned for a rule to show cause why he should not be held in contempt. Defendant filed a motion to strike the State's petition, and a hearing was held thereon. Subsequently, the trial court denied defendant's motion and issued the following "impounding" order:

"[T]hat transcripts of all testimony given in respect to [the subpoena] be impounded by this 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 before 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."

In affirming the trial court's ruling, the appellate court concluded that "the public's interest in maintaining the power of the grand jury" outweighed the patients' interest in avoiding revelation of their identities. (95 Ill. App.3d 601, 605.) The court rejected defendant's arguments that disclosure of the women's names violated section 5.1 of "An Act in regard to evidence and depositions" (Act) (Ill. Rev. Stat. 1979, ch. 51, par. 5.1) and the Illinois Abortion Law of 1975 (Ill. Rev. Stat. 1979, ch. 38, par. 81-21 et seq.).

Section 5.1 of the Act, commonly referred to as the physician-patient privilege, provides: "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.) (Ill. Rev. Stat. 1979, ch. 51, par. 5.1.) The statute then lists a number of exceptions to the privilege, none of which are applicable here.

The plain meaning of section 5.1 of the Act limits privileged information to that which is necessary to enable the physician to render professional services. Defendant concedes that a patient's identity is not required for treatment. He also agrees that the mere identification of a patient is not typically considered a privileged communication. However, he argues that, here, disclosure of the patients' names would inevitably associate them with the treatment received. It is asserted that the Medical Center renders only abortion-related services. Therefore, disclosing the women's identities necessarily reveals the privileged information that they received abortions. We recognize this possibility and must therefore determine whether, under the circumstances in this case, the privilege should be construed to extend to a patient's identity.

As noted by the appellate court, resolution of this issue depends upon a balancing of competing interests. On the one hand the patient has an interest, recognized by the legislature, "in maintaining confidentiality in his or her medical dealings with a physician." (People v. Bickham (1982), 89 Ill.2d 1, 6.) However, the public also has an interest in maintaining the breadth of the grand jury's power to conduct investigations necessary to ferret out criminal activity. (People v. Bickham (1982), 89 Ill.2d 1, 5-6; People v. Dorr (1970), 47 Ill.2d 458, 462, cert. denied (1971), 402 U.S. 929, 28 L.Ed.2d 863, 91 S.Ct. 1527. See United States v. Calandra (1974), 414 U.S. 338, 344, 38 L.Ed.2d 561, 569, 94 S.Ct. 613, 618; Branzburg v. Hayes (1972), 408 U.S. 665, 700, 33 L.Ed.2d 626, 650, 92 S.Ct. 2646, 2666.) This power should be accorded "the broadest scope possible" consistent with constitutional limitations. (People v. Dorr (1970), 47 Ill.2d 458, 462.) We believe that, under the circumstances of this case, the balance should be struck in favor of the public.

This holding does not, as defendant suggests, conflict with the recent decision in People v. Bickham (1982), 89 Ill.2d 1. In Bickham, the grand jury issued two subpoenas requesting the production of medical records pertaining to 63 named patients of an abortion clinic. Subpoena No. 200 identified 62 patients, none of whom consented to disclosure of their records. Subpoena No. 208 sought the medical records of a deceased woman. The administratrix of her estate executed a waiver of the physician-patient privilege. The court held that, pursuant to this privilege, respondent was not compelled to comply with subpoena No. 200. However, the court required that the records sought pursuant to subpoena No. 208 be turned over to the grand jury, as there was a valid consent to their disclosure. (See Ill. Rev. Stat. 1979, ch. 51, par. 5.1(3).) In so concluding, this court stated:

"We note that the grand jury has been supplied with the names of the 62 women whose records it is seeking. There has been no consent for disclosure of medical records by any of the 62 women, as there was by the personal representative of the estate of Sherry Emry. As the appellate court observed, if the State obtains expressed consent from these women, whose identities it knows, exception (3) to the physician-patient privilege would be applicable. Respondent ...

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