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05/19/94 CHERYL ALMGREN v. RUSH-PRESBYTERIAN-ST.

May 19, 1994

CHERYL ALMGREN, APPELLEE,
v.
RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, APPELLANT.-JUDITH TESTIN ET AL., APPELLEES, V. DREYER MEDICAL CLINIC ET AL. (DREYER MEDICAL CLINIC, APPELLANT).



Harrison, McMORROW

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

Before us are two medical malpractice actions which have not yet gone to trial. In each case, defense counsel filed a pretrial discovery motion to obtain authorization to conduct ex parte interviews with one of the plaintiff's treating physicians. In cause No. 74831, the motion to interview was granted, but the appellate court subsequently reversed after holding that it had jurisdiction to proceed. (240 Ill. App. 3d 585.) In cause No. 74897, the motion was denied, and one of the defendant's attorneyswas held in contempt after he advised the court that he intended to disregard the court's order and to go forward with the interview. Although the attorney did not appeal, his client did. The appellate court affirmed, again concluding that it possessed the requisite jurisdiction to proceed. (238 Ill. App. 3d 883.) We granted defendants leave to appeal in both cases (134 Ill. 2d R. 315) and consolidated the cases for argument and opinion. For the reasons which follow, we now hold that the appellate court erred in each case when it concluded that it had jurisdiction to review the merits of the circuit courts' orders. The appellate court's judgments are therefore vacated, and the appeals are dismissed.

The facts necessary to our Disposition are not in dispute. In cause No. 74831, Cheryl Almgren filed an action in the circuit court of Cook County to recover damages for personal injuries she sustained as the result of medical malpractice allegedly committed by Rush-Presbyterian-St. Luke's Medical Center. According to Almgren's complaint, she was hospitalized at the Medical Center for treatment and services related to a mental disorder. Almgren was known to be self-destructive and had a history of suicide attempts, so she was maintained in a locked ward. In what Almgren contends was a breach of the usual and customary standards of medical care, the Medical Center released her on a one-day pass on March 30, 1986. The pass required her to return to the Medical Center at 6 p.m., but she failed to do so. Instead, she claims, she wandered the streets of Chicago "aimlessly in a psychotic state" until she was struck and seriously injured by a Chicago Transit Authority train.

The one-day pass was issued to Almgren by Dr. Mehlinger-Mitchell. Mehlinger-Mitchell was a psychiatric resident at the Medical Center at the time of Almgren's admission to the facility, but is no longer employedthere. During the course of pretrial discovery, the Medical Center moved the court for an order permitting it and its attorneys to conduct ex parte interviews with Mehlinger-Mitchell. That motion was granted, and Almgren took an immediate interlocutory appeal.

In reversing the circuit court's order, the appellate court sua sponte raised the issue of whether it had jurisdiction to consider the appeal. There is no dispute that this was proper, for the appellate court has an independent duty to consider its jurisdiction before proceeding to the merits of the case. When jurisdiction is lacking, the court must dismiss the appeal on its own motion. (See Mirly v. Basola (1991), 221 Ill. App. 3d 182, 185, 163 Ill. Dec. 747, 581 N.E.2d 901.) Although the appellate court here satisfied itself that the requisite jurisdiction existed, its Conclusion cannot stand.

Article VI, section 6, of the 1970 Illinois Constitution provides that final judgments may be appealed as a matter of right from the circuit court to the appellate court. (Ill. Const. 1970, art. VI, § 6.) There is no corresponding constitutional right to appeal from interlocutory orders of the circuit court. Rather, article VI, section 6, vests this court with the authority to provide for such appeals, by rule, as it sees fit. (Ill. Const. 1970, art. VI, § 6.) Except as specifically provided by those rules, the appellate court is without jurisdiction to review judgments, orders or decrees which are not final. Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 61 Ill. Dec. 783, 435 N.E.2d 480.

Pursuant to its constitutional authority to provide for appeals from other than final judgments, this court has adopted Rules 306, 307, and 308 (134 Ill. 2d Rules 306, 307, 308). The appellate court in this case attempted to place the circuit court's order within the ambit of Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), which relates to injunctions, on the theory that it had the effect of enjoining Almgren from asserting her patient-therapistprivilege under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1991, ch. 91 1/2, par. 801 et seq.). This argument is untenable. In People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171, 57 Ill. Dec. 585, 429 N.E.2d 483, this court expressly held that pretrial discovery orders are not made appealable by Rules 306, 307 or 308. Although such orders may have the qualities of an injunction in the sense that they compel the parties to do or not to do a particular thing, they are considered noninjunctive "because they [do] not form part of the power traditionally reserved to courts of equity, but, instead, [are] part of the inherent power possessed by any court to compel witnesses to appear before it and give testimony." ( In re A Minor (1989), 127 Ill. 2d 247, 262, 130 Ill. Dec. 225, 537 N.E.2d 292.) Such orders are subject to review, but they are not immediately appealable because they are reviewable on appeal from the final judgment. Silverstein, 87 Ill. 2d at 171.

Although it acknowledged the applicability of these principles to normal discovery orders, the appellate court held that the potential threat to Almgren's privilege should take this case out of the Silverstein rule. The appellate court reasoned that once the interviews are allowed to proceed and confidential information about Almgren is disclosed, any post-judgment appeal would be meaningless, for the appellate court could never restore "the complete confidentiality so essential to an effective treatment relationship between the therapist and her patient." 240 Ill. App. 3d at 590.

The problem with this rationale is that Almgren's right to complete confidentiality was already lost by the time Rush moved for leave to conduct the interviews. As the appellate court itself acknowledged (240 Ill. App. 3d at 593), Almgren waived her right to bar Rush from communicating with Dr. Mehlinger-Mitchell when she filed suit against the hospital based on Mehlinger-Mitchell'salleged negligence in treating her mental condition. (Ill. Rev. Stat. 1991, ch. 91 1/2, par. 810.) At this point the fact that confidences may be disclosed must therefore be accepted as a given. The only question now is under what circumstances and to what extent disclosure should be permitted.

The appellate court's analysis must also fail because it overlooks that this court's decision in Silverstein itself involved a claim of privilege. In that case one of the defendants subpoenaed a newspaper reporter for his deposition and for the production of certain documents. The reporter moved to quash, contending, inter alia, that enforcement of the subpoena would violate the reporter's privilege act (Ill. Rev. Stat. 1979, ch. 51, par. 111 et seq.). That motion was denied, and, on appeal, the appellate court found that the order was final and appealable under Supreme Court Rule 301 (73 Ill. 2d R. 301). This court reversed, holding that the circuit court's order, made as a preliminary discovery order in a pending suit, was interlocutory in nature and not subject to review under Rule 301. As previously discussed, the court further held that such discovery orders are not made appealable under the provisions of Supreme Court Rules 306, 307, or 308 (73 Ill. 2d Rules 306, 307, 308). Although the case now before us involves a claim of privilege under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1991, ch. 91, par. 801 et seq.), rather than the reporter's privilege act, we agree with the Conclusion of the appellate court in Kmoch v. Klein (1991), 214 Ill. App. 3d 185, 157 Ill. Dec. 849, 573 N.E.2d 267, that the same result applies. The challenged order is not a final judgment within the meaning of article VI, section 6, of the 1970 Illinois Constitution (Ill. Const. 1970, art. VI, § 6), and is not among the interlocutory orders made appealable by Supreme Court Rules 306, 307, and 308 (134 Ill. 2d Rules 306, 307, 308).

A question then remains as to whether jurisdiction was nevertheless proper in the appellate court by virtue of section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1991, ch. 91 1/2, par. 810(b)). Under that statute, any order to disclose or not to disclose communications and records protected by the patient-therapist privilege is "considered a final order for purposes of appeal and shall be subject to interlocutory appeal." (Ill. Rev. Stat. 1991, ch. 91 1/2, par. 810(b).) If valid, this legislation would make appealable orders which would not otherwise qualify as final judgments and which would not otherwise be appealable under supreme court rules. This court has previously held, however, that attempts by the legislature to make nonfinal judgments appealable violate article VI, section 6, of our constitution (Ill. Const. 1970, art. VI, § 6). ( People v. Partee (1988), 125 Ill. 2d 24, 32, 125 Ill. Dec. 302, 530 N.E.2d 460.) By that constitutional provision, the power to authorize appeals from other than final judgments is vested exclusively in this court. (See In re Marriage of Lentz (1980), 79 Ill. 2d 400, 406-07, 38 Ill. Dec. 582, 403 N.E.2d 1036.) To the extent that section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1991, ch. 91 1/2, par. 810(b)) attempts to provide for appeals from less than final judgments, it is therefore an unconstitutional infringement by the legislature upon the rulemaking power of this court. (See Kmoch v. Klein (1991), 214 Ill. App. 3d 185, 194, 157 Ill. Dec. 849, 573 N.E.2d 267; People v. Phipps (1979), 79 Ill. App. 3d 532, 537, 34 Ill. Dec. 827, 398 N.E.2d 650, rev'd on other grounds (1980), 83 Ill. 2d 87, 46 Ill. Dec. 164, 413 N.E.2d 1277.) Because the appellate court thus lacked any legitimate basis for exercising jurisdiction over this matter, its judgment in cause No. 74831 is vacated, and the appeal is dismissed.

We turn then to cause No. 74897. In that case, Judith Testin filed an action to recover damages for personal injuries she sustained as the result of medicalmalpractice allegedly committed by Dreyer Medical Clinic, Copley Memorial Hospital, and Drs. David Lando and Ann L. West. These defendants were also sued by Mrs. Testin's husband, Richard, for loss of consortium.

According to the pleadings and stipulations by the parties, Mrs. Testin underwent gynecological surgery at Copley Memorial in 1989. The surgery was performed by Dr. Scott Donovan, an employee of Dreyer Medical Clinic. During the course of her recovery at Copley, Mrs. Testin received care from Dr. Ann West and various other employees of the Dreyer Clinic, including Dr. Judson Jones. On the fifth day following the operation, Dr. Jones ordered diagnostic X rays of Mrs. Testin's abdomen after she complained of severe abdominal pain. The X rays were interpreted by Dr. Lando. Mrs. Testin claims that Lando and the ...


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