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March 26, 1996


Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois, No. 94-L-296. Honorable Robert L. Carter, Judge, Presiding.

Released for Publication May 9, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Kent Slater, Justice, Breslin, P.j., specially concurring, Lytton, J., dissenting

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the judgment of the court and the following opinion:

Plaintiff Amy Suarez filed a two-count complaint against defendants James Pierard and K-Mart Corporation. The defendants filed a motion to dismiss for failure to state a cause of action (735 ILCS 5/2-615 (West 1992)). The trial court dismissed the complaint but granted leave to amend count II. Subsequently, count II was also dismissed for failure to state a cause of action and this appeal followed. We affirm.

According to the allegations contained in plaintiff's complaint, on December 13, 1992, plaintiff went to the pharmacy at a K-Mart store to have a prescription filled. The prescription was for certain drugs used in the treatment of mental health disorders. Defendant Pierard, the pharmacist on duty, questioned plaintiff about her treatment and condition and plaintiff disclosed confidential information to Pierard. Plaintiff later had a chance meeting with Pierard in a public tavern. According to plaintiff's complaint, Pierard discussed confidential information concerning plaintiff's treatment in the presence of several people, thereby embarrassing and humiliating plaintiff. Count I of plaintiff's complaint alleged that Pierard had a duty not to disclose information concerning plaintiff's medical treatment under the Mental Health and Developmental Disabilities Confidentiality Act (the Confidentiality Act) (740 ILCS 110/1 et seq. (West 1992)). Count II alleged the existence of an implied contract between plaintiff and defendants, which Pierard breached by disclosing the confidential information. As indicated above, the trial court dismissed plaintiff's complaint for failure to state a cause of action.

In reviewing the dismissal of a complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)), we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action. Ziemba v. Mierzwa, 142 Ill. 2d 42, 566 N.E.2d 1365, 153 Ill. Dec. 259 (1991). In making this determination, we take as true all well-pleaded facts in the complaint ( Ziemba, 142 Ill. 2d 42, 566 N.E.2d 1365, 153 Ill. Dec. 259) and reasonable inferences drawn from those facts ( Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659, 646 N.E.2d 930, 207 Ill. Dec. 96 (1995)). The trial court's dismissal of a complaint under section 2-615 is subject to de novo review. Stinson, 269 Ill. App. 3d 659, 646 N.E.2d 930, 207 Ill. Dec. 96.

Plaintiff contends that count I states a cause of action under the Confidentiality Act. Section 15 of the Act provides that persons aggrieved by a violation of the Act may sue for damages, an injunction or other relief. 740 ILCS 110/15 (West 1992). Section three of the Act states that all records and communications are confidential and shall not be disclosed except as provided in the Act. 740 ILCS 110/3 (West 1992). Confidential communications are defined as those "made by a recipient or other person to a therapist *** including information which indicates that a person is a recipient." 740 ILCS 110/2(1) (West 1992). Section nine of the Act defines a therapist as:

" psychiatrist, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so. Therapist includes any successor of the therapist." 740 ILCS 110/2(9) (West 1992).

Plaintiff maintains that a pharmacist, although not specifically referred to in section nine, is included within the definition of a therapist as "any other person" who provides mental health services. Plaintiff notes that a 1976 report by the Governor's Commission for Revision of the Mental Health Code (the Governor's report) states that the definition of therapist contained in the Confidentiality Act should include a wide range of recognized professionals and that it is the type of communication which is being protected, not the professional status of the therapist.

We initially note that the Governor's report cited by plaintiff is not included in the record on appeal but is instead contained in the appendix of plaintiff's brief. Attachments to briefs which are not otherwise of record are not properly before the reviewing court and cannot be used to supplement the record. Barker v. Eagle Food Centers, Inc., 261 Ill. App. 3d 1068, 634 N.E.2d 1276, 199 Ill. Dec. 922 (1994); Denny v. Haas, 197 Ill. App. 3d 427, 554 N.E.2d 727, 143 Ill. Dec. 792 (1990). Moreover, even if we were to consider the Governor's report, we do not believe that it supports plaintiff's position. The report states that the Confidentiality Act was intended to apply to persons with whom the recipient enters into a therapeutic relationship, thereby providing a shield of confidentiality for that relationship which would encourage the open communication necessary for effective therapy. See also Martino v. Family Service Agency, 112 Ill. App. 3d 593, 445 N.E.2d 6, 67 Ill. Dec. 714 (1982) (Governor's report indicates that Confidentiality Act was intended to apply to persons entering into a therapeutic relationship). We do not believe that the concept of a therapeutic relationship is so expansive that it includes a routine transaction with a pharmacist, even where, as plaintiff alleges, the pharmacist questions plaintiff about her treatment and medical condition. Such questions are not, in our opinion, "therapy", nor do they establish a "relationship" as contemplated by the Confidentiality Act.

Plaintiff also contends that a pharmacist is a therapist under the Confidentiality Act because he dispenses pharmaceuticals. Section two of the Act provides that mental health services includes "examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation." (Emphasis added.) 740 ILCS 110/2(3) (West 1992). Therefore, argues plaintiff, since a therapist includes any person not prohibited by law from providing mental health services (740 ILCS 110/2(9) (West 1992)), and mental health services includes pharmaceuticals, a pharmacist is by definition a therapist.

In our opinion plaintiff ignores the distinction between prescribing drugs and merely dispensing them. A physician or psychiatrist may prescribe medications as one component of a patient's mental health treatment. The decision to use such drugs depends upon many factors, including the needs of the patient, the effect of the drug, and the effectiveness of other types of treatment. The use of these pharmaceuticals by the therapist is thus clearly a means of providing mental health services. The pharmacist, on the other hand, is largely limited to filling the prescription as ordered by the physician. His function is essentially that of providing a product to a customer, not providing mental health services to a patient.

Plaintiff next directs our attention to the Pharmacy Practice Act of 1987 (Pharmacy Act) (225 ILCS 85/1 et seq. (West 1992)) which provides that the practice of pharmacy includes "advising or counseling patients on the use of drugs or devices" (225 ILCS 85/3(d)(6) (West 1992)) and "providing health information related to drugs and medical devices" (225 ILCS 85/3(d)(9) (West 1992)). Plaintiff maintains that these ...

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