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10/17/97 D.C. v. S.A. ET AL.

October 17, 1997

D.C., APPELLEE,
v.
S.A. ET AL., APPELLANTS.



Petition for appeal as a Matter of Right from the Circuit Court of Will County. TRIAL JUDGE: Hon. Herman S. Haase. CASE NUMBERS: AC3-95-0568, TR94L7473.

As Corrected January 7, 1998.

Chief Justice Freeman delivered the opinion of the court. Justice Harrison, dissenting. Justice Nickels joins in this dissent.

The opinion of the court was delivered by: Freeman

CHIEF JUSTICE FREEMAN delivered the opinion of the court:

The issue presented in this appeal is twofold: (1) whether, pursuant to section 10(a)(1) of the Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/10 et seq. (West 1992)), plaintiff, D.C., introduced his mental condition as an element of his negligence claim such that certain documents and items of information within his post-accident psychiatric treatment records were subject to disclosure; and (2) whether the trial court correctly determined that the records were to be disclosed.

Section 10(a)(1) of the Act provides, in part:

"ยง 10(a). Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient's record or communications.

(1) Records and communications may be disclosed in a civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense, if and only to the extent the court in which the proceedings have been brought, *** finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm." 740 ILCS 110/10(a) (West 1994).

BACKGROUND

On June 6, 1992, a traffic accident occurred on Illinois Route 53 in Bolingbrook, Illinois, involving plaintiff, D.C., a pedestrian, and an automobile driven by defendant S.A. Plaintiff subsequently filed a negligence action for personal injuries against defendants, S.A. and J.A., Jr., in the circuit court of Will County.

Plaintiff alleged in his complaint that at the time of the accident, he was a pedestrian crossing Route 53, that defendants were careless and negligent in several respects, and that a car driven by defendant S.A. struck him on that date causing injury. Plaintiff further alleged in his complaint that at all times therein mentioned, he was "in the exercise of ordinary care and caution for his safety, and for the safety of all other persons and vehicles lawfully upon the highways." Plaintiff alleged that as a "direct and proximate result" of defendant's negligence, plaintiff sustained "severe and permanent injury," suffered pain, incurred medical expense, and lost and would lose earnings and profits. The complaint did not seek any damages due to mental health injury or any related expenses.

Defendants answered the complaint by denying all of the allegations of negligence made against them. Also, defendants asserted an affirmative defense alleging that plaintiff was negligent in several respects, including failing to obey a traffic control device and suddenly leaving the curb area and entering the roadway in the path of defendant's vehicle and that such negligence of plaintiff was "the" proximate cause of plaintiff's damages. Defendants prayed that plaintiff be found contributorily negligent in causing his alleged damages. Defendants also filed a counterclaim alleging that plaintiff was negligent and that such negligence was the proximate cause of damages to defendants' vehicle.

In reply to defendants' affirmative defense, plaintiff denied all allegations and alleged that he was in the exercise of due care for himself and others. In answer to defendants' counterclaim, plaintiff denied that he was negligent or that such alleged negligence was a proximate cause of defendants' damages. Plaintiff asserted that he was in the exercise of due care for his safety and others at the time of the accident, but that defendants were not.

Pursuant to discovery rules, defendants issued subpoenas for deposition directing, inter alia, Edwards Hospital, the hospital where plaintiff was treated immediately following the accident, and Dr. Drew M. Georgeson, his treating physician, to produce plaintiff's medical, psychiatric and/or psychological records for copying. Plaintiff responded by filing a cross-motion for a protective order which the trial court denied, ordering production of the requested records, other than psychiatric and psychological records, for copying.

Plaintiff's medical records revealed that, upon his discharge from Edwards Hospital, where he had been treated for three days immediately following the accident, plaintiff was referred by Dr. Georgeson to Linden Oaks Hospital, the psychiatric unit of Edwards Hospital, for a psychiatric evaluation. Dr. Georgeson partially summarized plaintiff's treatment in a letter to plaintiff's attorney which expressed that plaintiff was being referred because of an indication by plaintiff that he might have been attempting suicide at the time of the accident. Defendants consequently filed a motion to compel the production of all of plaintiff's psychiatric and psychological records, including those from Edwards and Linden Oaks Hospitals. Asserting section 10(a)(1) of the Mental Health Act as the basis, plaintiff objected.

In March 1995, the trial court ordered Edwards Hospital to produce all of plaintiff's records, including all psychiatric and psychological records "(including any and all records from Linden Oaks Hospital)" for an in camera inspection. By order dated March 28, 1995, the court received the Edwards Hospital records and impounded them. The court also ordered Linden Oaks Hospital to produce any and all records regarding plaintiff for an in camera inspection. The court continued further hearing on the matter to May 1995.

On May 9, 1995, following an in camera inspection of plaintiff's records from Edwards Hospital, the trial court ordered that those records be disclosed to defendants, with the exception of a purported petition for involuntary admission, which is not at issue here. In the order, the trial court again ordered that all of plaintiff's records from Linden Oaks Hospital be produced for an in camera inspection. The trial court subsequently continued the matter.

On or about May 16, 1995, plaintiff's Linden Oaks Hospital psychiatric records were received by the trial court, which then conducted an in camera inspection of them. At a hearing of the matter held on May 23, 1995, the trial court found that, with respect to certain documents and information from the two hospitals' records, plaintiff had introduced his mental condition in establishing that he was in the exercise of due care for his own safety, and that such element of his mental condition had been introduced by the filing of the lawsuit. With respect to these materials and the remainder of plaintiff's psychiatric records, the trial court then made findings pursuant to the several factors enumerated in section 10(a)(1).

The trial court found that the last three pages of records produced from Edwards Hospital (a certificate by an attending psychiatrist, a document signed by "Linda Campbell," and an inventory of plaintiff's personal belongings, all dated June 8, 1992) were relevant, probative and, while prejudicial, not unduly prejudicial, and also admissible. After noting that defendants' counsel had attempted to obtain the information from other sources, but had been unable to do so, the trial court found that other satisfactory evidence was demonstrably unsatisfactory at that time. Lastly, the trial court found that disclosure was more important to the interests of substantial justice than protection of the therapist-recipient relationship.

Concerning plaintiff's Linden Oaks psychiatric records, the trial court found that, with the exception of three specific items of information, the entirety of the records was not relevant. The trial court repeated its previous findings under section 10(a)(1) with respect to the three items: a paragraph entitled "reason for admission," which appeared on a discharge summary, a paragraph entitled "history of present illness," which appeared in a report from Dr. Kraus, and a one sentence statement by a psychologist concerning "the presenting problem," which appeared in a "psychological assessment" document. In doing so, the trial court specified that other paragraphs within documents in which these three items appeared were to be redacted because such paragraphs concerned information which was irrelevant, inadmissible, or unduly prejudicial.

In total, the trial court ordered that the last three pages of plaintiff's Edwards Hospital records and the three specified items of information from Linden Oaks ...


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