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02/09/88 Gregg B. Marsh, Adm'r of v. Lake Forest Hospital Et Al

February 9, 1988

GREGG B. MARSH, ADM'R OF THE ESTATE OF SUSAN LYNN MARSH, DECEASED, AND GREGG B. MARSH, INDIV., PLAINTIFF-APPELLEE

v.

LAKE FOREST HOSPITAL ET AL., DEFENDANTS (MARC F. BENJOYA, CONTEMNOR-APPELLANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

519 N.E.2d 504, 166 Ill. App. 3d 70, 116 Ill. Dec. 612 1988.IL.156

Appeal from the Circuit Court of Lake County; the Hon. Alvin Ira Singer, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

The circuit court of Lake County found attorney Marc F. Benjoya in contempt of court for failing to comply with the court's discovery order requiring production of the results of certain polygraph tests. Benjoya appeals, contending that the discovery order was improper because (1) polygraph evidence is not discoverable; (2) the information is privileged pursuant to sections 8-2101 through 8-2105 of the Code of Civil Procedure (the Medical Records Act) (Ill. Rev. Stat. 1985, ch. 110, pars. 8-2101 through 8-2105); and (3) the material is covered by the attorney-client privilege.

Gregg B. Marsh, in his individual capacity and as administrator of the estate of Susan Marsh, filed suit against Lake Forest Hospital (hospital) and other defendants alleging medical malpractice in the death of Susan Marsh.

Susan Marsh died while a patient at the hospital on September 23, 1984. During the course of discovery, it became apparent that her medical records had been altered by someone at the hospital subsequent to that date. Plaintiff's counsel discovered the alteration at a discovery deposition on September 11, 1986. Counsel for the hospital relayed this information to the hospital president and its vice-president for nursing. Counsel recommended that the hospital give polygraph tests to the nurses who attended Susan Marsh on September 22, 1984, before she suffered a fatal heart attack. According to the contemnor's brief, "the tests were administered for the purpose of internal quality control, reducing morbidity and mortality, and for improving overall patient care. It was never contemplated that the results of the test would, or could, be used in defense of the allegations of the pending complaint brought by Gregg Marsh. But the hospital absolutely must know if a nurse employed to care for its patients is changing patients' records to make the care appear different than it was."

On April 3, 1987, the court ordered production of all lie detector test results and all documents arising out of the taking of those tests. The court also required the hospital to name the polygraph examiner, as well as all persons who were subjected to the test. The hospital's counsel did not produce the records. Plaintiff then filed a petition for a rule to show cause why defendant and its attorneys should not be held in contempt for failure to comply with the court's April 3 discovery order. On May 15, 1987, the court found Benjoya, one of the hospital attorneys, in contempt for failure to produce the documents and fined him $25. Benjoya appeals, contending that the material was not discoverable for the reasons previously noted.

Initially, plaintiff has filed a motion in this court to strike the portion of appellant's brief quoted above, wherein appellant asserts the reason for the taking of the polygraph exams. We ordered the motion taken with the case. Plaintiff's motion alleges that the quoted language, while appearing in the fact statement, consists solely of argument, in violation of Supreme Court Rule 341(e)(6) (107 Ill. 2d R. 341(e)(6)). The last quoted sentence, while stated in an argumentative manner, merely states the obvious: that the hospital would be interested in knowing whether members of its nursing staff were altering patient records. The rest of the information is contained in the affidavit of counsel included in the record and is allegedly based on his personal knowledge. However, to the extent that the quoted language contains Conclusions of counsel, we will disregard it.

We proceed now to the merits of the issues raised by Benjoya. He argues first that polygraph evidence is inherently unreliable, and for that reason has been held to be inadmissible at any phase of trial. Therefore, he contends, such evidence is not discoverable. Plaintiff concedes that such evidence would be inadmissible at trial, but points out that the scope of discovery is not restricted to admissible evidence.

The Illinois Supreme Court has repeatedly held that polygraph evidence is inherently unreliable and prejudicial and is therefore inadmissible at trial. This is so whether the evidence is sought to be used at an administrative hearing (Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 309, 450 N.E.2d 314, cert. denied (1983), 464 U.S. 960, 78 L. Ed. 2d 335, 104 S. Ct. 391), at a hearing on a post-trial motion (People v. Yarbrough (1982), 93 Ill. 2d 421, 426-27, 444 N.E.2d 493), or even at the death penalty phase of a capital trial where the evidence is favorable to the defendant (People v. Szabo (1983), 94 Ill. 2d 327, 362, 447 N.E.2d 193). Such evidence may not be used even though the parties have stipulated to its admissibility. (People v. Baynes (1981), 88 Ill. 2d 225, 240, 430 N.E.2d 1070.) This does not mean, however, that polygraph results may never be used for any purpose.

In Kaske, the court held that such evidence "is not reliable enough to be used as substantive evidence in an administrative proceeding." (Emphasis added.) (Kaske, 96 Ill. 2d at 309.) The Dissent, however, noted that the tests may still serve some purpose: "'Such tests are recognized as having some value in investigation, even though they are not yet sufficiently reliable to be admitted in evidence.'" (Kaske, 96 Ill. 2d at 312-13 (Moran, J., Dissenting), quoting McCain v. Sheridan (1958), 160 Cal. App. 2d 174, 177, 324 P.2d 923, 926.) In People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350, the court held that the State was required to keep a deal made with the defendant whereby the State would drop all charges if the defendant passed a lie detector test. (Starks, 106 Ill. 2d at 448-49.) While this is a far cry from endorsing polygraph results, these cases represent a recognition by the supreme court that polygraph results may be useful for some purposes other than as evidence at trial.

Further, as plaintiff notes, the scope of discovery is not restricted to admissible evidence, but includes that which leads to admissible evidence. (Snyder v. Lowrey (1986), 141 Ill. App. 3d 30, 32, 489 N.E.2d 899.) Great latitude is allowed in the scope of discovery. (See 107 Ill. 2d R. 201(b).) The trial court has broad discretion in ruling on discovery matters, and its ruling will be overturned on ...


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