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People v. Dean

OPINION FILED JULY 31, 1984.

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

v.

BRENDA DEAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. Edward Ferguson, Judge, presiding.

JUSTICE JOHN M. KARNS DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 4, 1984.

Defendant, Brenda K. Dean, appeals from the judgment of the circuit court of Madison County revoking her sentence of probation and imposing a term of imprisonment.

In May 1982, defendant pleaded guilty to the offense of forgery (Ill. Rev. Stat. 1981, ch. 38, par. 17-3(a)(2)) following a charge that she knowingly and with the intent to defraud delivered to a grocery store clerk a check purported to have been made by another. She was sentenced to a period of two years' probation.

In September 1982, the State filed a petition to revoke probation, charging that the defendant violated the terms of her probation in that she knowingly and and unlawfully acquired possession of a Schedule II controlled substance, phenmetrazine (Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 1206(a), (d)(3)), by presentation of altered official prescription forms to a pharmacist, in violation of section 406(b)(3) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1406(b)(3)).

At the probation revocation hearing, Francis E. Meyers, a Wood River police officer, testified that he was contacted by Marsha Bursner, a pharmacist, regarding three prescriptions she had received and which appeared to her to have been altered.

Bursner testified that the defendant presented two prescriptions from Dr. Suresh Chand on separate occasions in June and that both were filled. Among the drugs dispensed on each occasion was "Preludin," which she testified was a manufacturer's name for the generic drug phenmetrazine hydrochloride.

Dr. Chand, defendant's personal physician, testified over objection that he wrote the original prescriptions at issue. In each instance, he testified, he had prescribed and written "Prelu-2" on his prescription pad, and in each instance it was altered to read "Preludin." Dr. Chand also stated that the generic name for "Preludin" is phenmetrazine hydrochloride.

• 1 Defendant contends that the trial court erred in admitting over objection Dr. Chand's testimony because it violated the physician-patient privilege. In particular, defendant argues that Dr. Chand should not have been required to divulge the specific medication he prescribed, "Prelu-2," because it was contrary to her right to protection from disclosure and an invasion of her right to privacy. We do not agree.

Section 8-802 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 8-802, formerly Ill. Rev. Stat. 1981, ch. 51, par. 5.1), provides in relevant part:

"Sec. 8-802. Physician and patient. No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient * * *."

None of the enumerated exceptions are applicable here.

Dr. Chand's disclosure of the prescribed medication does not fall within the ambit of the statute. His testimony did not disclose any information which he had acquired from her. Rather, it is evident that Dr. Chand's testimony merely established a variance between what was prescribed and what was presented to the pharmacist and acquired by the defendant.

• 2 Defendant also relies on "Illinois Revised Statutes, chapter 51, sec. 5.2" for the proposition that Dr. Chand's testimony was precluded by the psychiatrist-patient relationship. Inasmuch as this section relating to this privilege was repealed by Public Act 80-1508, article II, section 5, effective January 9, 1979 (see Ill. Rev. Stat. 1979, ch. 51, par. 5.2), and defendant has failed ...


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