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01/14/87 the Sisters of the Third v. the People Ex Rel. John A.

January 14, 1987





503 N.E.2d 1069, 151 Ill. App. 3d 875, 105 Ill. Dec. 63 1987.IL.24

Date Filed: January 14, 1987; Modified on Denial of Rehearing February 18, 1987.

Appeal from the Circuit Court of Peoria County; the Hon. Peter J. Paolucci, Judge, presiding.


PRESIDING JUSTICE SCOTT delivered the opinion of the court. STOUDER and HEIPLE, JJ., concur.


The petitioner-appellant, John M. Schewe, appeals from the circuit court's denial of a motion to quash a subpoena duces tecum. The motion to quash was brought by the petitioners, the Sisters of the Third Order of St. Francis (the Sisters), and joined by Schewe. We affirm.

Mr. Schewe has been under grand jury investigation for his alleged operation of a motor vehicle under the influence of alcohol, resulting in a one-car collision and a passenger's death. Pursuant to that investigation, the St. Francis Medical Center, owned and operated by the Sisters, was issued a subpoena duces tecum ordering it to produce samples or test results showing evidence of Schewe's blood-alcohol content or intoxication following the accident.

The Sisters petitioned to quash the subpoena, asserting that it requested statutorily confidential information. Mr. Schewe joined in the motion to quash. The court denied the motion and ordered that the subpoena would be limited to evidence of Mr. Schewe's blood-alcohol or intoxication. Mr. Schewe brought the instant appeal, arguing that the trial court improperly refused to quash the subpoena.

The State argues initially that we lack jurisdiction to hear the appeal. We disagree. The State relies primarily upon People v. ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483. In Silverstein, a reporter who was not a party to the underlying civil litigation but who had written about the case and who was covering the relevant litigation, was issued a subpoena duces tecum for his deposition and the production of certain documents. The reporter moved to quash the subpoena based upon his statutory reporter's privilege. The circuit court denied the reporter's motion to quash the subpoena and ordered him to submit to a limited deposition. The reporter appealed from that order. The supreme court noted that despite the circuit court order, the reporter had the remaining privilege either to obey the order or to defy it and perhaps evoke a final and appealable judgment of contempt. It held that the order was not final and appealable under Supreme Court Rule 301 (87 Ill. 2d R. 301). In so holding, it distinguished and thus did not Judge the soundness of Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 392 N.E.2d 929, upon which Mr. Schewe primarily relies to support his argument of appealability. In Laurent, the appellate court held final and appealable the circuit court's order requiring compliance with an administrative subpoena duces tecum.

Here, as in Silverstein, the discovery order has not been disobeyed and no order finding contempt or imposing sanctions has been entered. Nevertheless, we do not find Silverstein controlling. Unlike the order in Silverstein, the instant order is not made as a preliminary order in an existing suit. Furthermore, unlike the reporter in Silverstein, who could refuse to comply with the court's deposition order and thus evoke an appealable contempt citation, Mr. Schewe has no capacity to evoke a contempt judgment. The Sisters were the recipients of the instant release order and Mr. Schewe has no authority to compel the Sisters to defy the order. The instant order finally determined Mr. Schewe's right to prevent release of the relevant medical records; it was appealable under Rule 301.

Petitioner Schewe's argument on the merits is that in denying his motion to quash, the circuit court improperly construed section 8 -- 802 of the Code of Civil Procedure. In relevant part, section 8 -- 802 provides:

"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, except only (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide . . .." Ill. Rev. Stat. 1985, ch. 110, par. 8-802.

The trial court found that the first statutory exception in section 8 -- 802 applied to the instant case. Consequently, the court concluded that the instant, limited disclosure was not prohibited under section 8 -- 802 and denied the motion to quash. The court reasoned that if the legislature intended that information such as that at issue be released for use in homicide trials, then the ...

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