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09/12/96 D.C. v. S.A. AND J.A.

September 12, 1996

D.C., PLAINTIFF-APPELLANT,
v.
S.A. AND J.A., JR., DEFENDANT-APPELLEES.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 94 L 7473. Honorable Herman Haase, Judge Presiding.

Released for Publication October 23, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Kent Slater, Justice. Presiding Justice Breslin delivered the opinion of the court: Slater, J., concurs. Lytton, J., dissents.

The opinion of the court was delivered by: Breslin

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

This interlocutory appeal raises the question whether a plaintiff who files a negligence lawsuit introduces his mental condition as an element of his claim and thereby waives his privilege to refuse disclosure of mental health records under the Mental Health and Developmental Disabilities Confidentiality Act (Mental Health Act) (740 ILCS 110/1 et seq. (West 1992)). We hold that a plaintiff does not waive this privilege by filing a negligence action. Therefore, we reverse the circuit court's judgment.

In June 1992, the plaintiff, D.C., was injured when he was struck by an automobile at an intersection. The plaintiff spent several days in the hospital and thereafter sought treatment at a mental health facility. He then brought suit against S.A., as the driver of the automobile, and J.A., Jr., as S.A.'s principal, seeking damages for injuries suffered as a result of the accident. The plaintiff's complaint alleged that he was in the exercise of ordinary care for his own safety at the time of the accident; otherwise, however, the complaint made no mention of the plaintiff's mental state at the time of the accident. Moreover, the plaintiff did not include within his claim for damages any injuries to his mental health or expenses incurred from his stay at the mental health facility.

The defendants filed an answer, affirmative defenses, and a counter-complaint, seeking compensation for damage to their automobile. The affirmative defenses and counter-complaint alleged that the plaintiff failed to exercise ordinary care for his safety. The plaintiff denied these allegations.

During discovery, the plaintiff produced a letter from his treating physician which raised the possibility that the plaintiff intentionally walked in front of the defendants' car in a suicide attempt. On the basis of this information, the defendants moved to compel production of the psychiatric records compiled during the plaintiff's stay at the mental health facility. The plaintiff refused disclosure pursuant to the psychotherapist-patient privilege contained in section 10 of the Mental Health Act (740 ILCS 110/10 (West 1992)). The plaintiff did, however, submit the records to the circuit court for an in camera inspection.

After reviewing the records in camera, the circuit court determined that while many of the records in question were privileged, there was a category of records which "refer to how the patient got into the hospital and what led up to this particular incident, and there are things there that I think do relate pretty directly to this accident." The court also found that the plaintiff introduced his mental condition either by filing the lawsuit or by alleging that he was in the exercise of due care for his own safety. The court certified this issue for interlocutory review, which we granted pursuant to Supreme Court Rule 308(a) (134 Ill. 2d 308(a)).

The sole issue for our review is whether a plaintiff who files a negligence suit waives his privilege to refuse the disclosure of mental health records.

This question requires us to construe section 10 of the Mental Health Act. The task of statutory construction is to ascertain and give effect to the legislature's intent. People v. Scharlau, 141 Ill. 2d 180, 565 N.E.2d 1319, 152 Ill. Dec. 401 (1990). If the legislature's intent is clear from the statute's language, the court must confine its inquiry to a consideration of that language and must not look to extrinsic aids. In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167, 82 Ill. Dec. 633 (1984). If, however, statutory language is susceptible of more than one interpretation, the court may look beyond the language to consider the purposes to be served by the statute. Sisters of Third Order of St. Francis v. State ex rel. Barra, 151 Ill. App. 3d 875, 503 N.E.2d 1069, 105 Ill. Dec. 63 (1987). Questions of statutory construction are questions of law. Wright v. Chicago Municipal Employees' Credit Union, 265 Ill. App. 3d 1110, 639 N.E.2d 203, 203 Ill. Dec. 164 (1994).

Section 10 of the Mental Health Act provides that in any civil proceeding a recipient of mental health services may refuse to disclose the records of such services. 740 ILCS 110/10(a) (West 1992). If, however, a recipient introduces his mental condition as an element of his claim or defense, then the records are subject to disclosure, provided certain other conditions are met. See 740 ILCS 110/10(a)(1) (West 1992). The question we must answer is whether a plaintiff who files a negligence lawsuit "introduces his mental condition as an element of his claim."

The court in Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405, 219 N.E.2d 165 (1966) held that a plaintiff in a personal injury action did not introduce her mental condition as an element of her claim by seeking damages for pain and suffering. The Webb court read the exception's language narrowly in holding that the privilege existed unless the plaintiff specifically made her condition a part of her claim. The court went on to hold that a general allegation of pain and suffering did not rise to the level of specificity required to effectuate a waiver of the privilege. 73 Ill. App. 2d at 408-9, 219 N.E.2d at 167. To the same effect is Tylitzki v. Triple X Service, Inc., 126 Ill. App. 2d 144, 261 N.E.2d 533 (1970) (plaintiff must "affirmatively" place mental condition at issue to effect waiver).

The plaintiff's mental condition in Webb was raised in reference to the issue of damages. In this case, the plaintiff's condition bears upon the issue of liability. No court has yet applied the Webb court's rationale where the mental condition in question was relevant to the issue of liability. However, the court in Maxwell v. Hobart Corp., 216 Ill. App. 3d 108, 576 N.E.2d 268, 159 Ill. Dec. 599 (1991), did decide that an implied waiver may be found where the plaintiff's mental condition is relevant to the liability issue in a strict ...


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