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11/20/97 SANDRA S. KUNKEL ET AL. v. LAUREL A.

November 20, 1997

SANDRA S. KUNKEL ET AL., APPELLEES,
v.
LAUREL A. WALTON, D.O., ET AL., APPELLANTS.



Appeal from the Circuit Court, Macon County. CASE NUMBERS: TR95L288. TRIAL JUDGE: Hon. Scott B. Diamond.

The Honorable Justice Nickels delivered the opinion of the court. Justice Heiple took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

In this appeal, we consider the constitutionality of section 2-1003(a) of the Code of Civil Procedure (735 ILCS 5/2-1003(a) (West 1994)) as amended by the Civil Justice Reform Amendments of 1995 (Pub. Act 89-7, eff. March 9, 1995). As described in more detail later, section 2-1003(a) provides that any party who alleges a claim for bodily injury or disease shall be deemed to waive any privilege of confidentiality with his or her health care providers. Section 2-1003(a) further provides that upon request of any other party, the party claiming injury shall sign and deliver separate consent forms authorizing each of his or her health care providers to disclose medical records to the requesting party and to engage in ex parte conferences with the requesting party's attorneys.

Plaintiffs, Sandra and Ronald Kunkel, brought this action in the circuit court of Macon County against defendants, Laurel A. Walton, D.O., Herbert W. Thompson, M.D., and Mary E. Herald, M.D., seeking recovery for medical malpractice in the course of Dr. Walton's treatment of Mrs. Kunkel. Mr. Kunkel sought recovery from defendants for loss of consortium and under the Rights of Married Persons Act (750 ILCS 65/15 (West 1994)). Defendants served plaintiffs with a request for consents authorizing the release of medical information pursuant to section 2-1003(a). Plaintiffs thereafter filed a motion for a protective order in which they challenged the constitutionality of section 2-1003(a). Following a hearing, the trial court entered an order declaring section 2-1003(a) unconstitutional. The trial court concluded that section 2-1003(a) violated the separation of powers doctrine (Ill. Const. 1970, art. II, § 1) and the prohibition of unreasonable invasions of privacy (Ill. Const. 1970, art. I, § 6). The trial court also ruled that the statute was unconstitutional because "the required Authorization of Release of Medical Information is overly coercive and prevents a Plaintiff from making a free and consensual decision." Defendants appealed directly to this court from the trial court's order. 134 Ill. 2d R. 302(a). We allowed a motion by Illinois Attorney General James E. Ryan to intervene in this appeal, and have allowed various organizations to appear as amici curiae. *fn1

ANALYSIS

I

Section 2-1003(a) provides, in pertinent part:

"Any party who by pleading alleges any claim for bodily injury or disease, including mental health injury or disease, shall be deemed to waive any privilege between the injured person and each health care provider who has furnished care at any time to the injured person. *** Any party alleging any such claim *** shall, upon written request of any other party who has appeared in the action, sign and deliver within 28 days to the requesting party a separate Consent authorizing each person or entity who has provided health care at any time to the allegedly injured person to:

(1) furnish the requesting party or the party's attorney a complete copy of the chart or record of health care in the possession of the provider ***;

(2) permit the requesting party or the party's attorney to inspect the original chart or record of health care [at the provider's regular business location during regular business hours] ***;

(3) accept and consider charts and other records of health care by others, radiographic films, and documents, including reports, deposition transcripts, and letters, furnished to the health care provider by the requesting party or the party's attorney, before giving testimony in any deposition or trial or other hearing;

(4) confer with the requesting party's attorney before giving testimony in any deposition or trial or other hearing and engage in discussion with the attorney on the subjects of the health care provider's observations related to the allegedly injured party's health, including the following: the patient history ***; the health care provider's opinions related to the patient's state of health, prognosis, etiology, or cause of the patient's state of health at any time, and the nature and quality of care by other health care providers, including whether any standard of care was or was not breached; and the testimony the health care provider would give in response to any point of interrogation, and the education, experience, and qualifications of the health care provider.

A request for a Consent under this subsection (a) does not preclude such subsequent requests as may reasonably be made seeking to expand the scope of an earlier Consent which was limited to less than all the authority permitted by subdivisions (1) through (4) of this subsection (a) or seeking additional Consents for other health care providers.

The provisions of this subsection (a) do not restrict the right of any party to discovery pursuant to rule." 735 ILCS 5/2-1003(a) (West 1996).

Under section 2-1003(a) documents and information obtained pursuant to a consent are confidential and may only be disclosed to the parties, their attorneys, their insurers' representatives and certain witnesses and consultants. 735 ILCS 5/2-1003(a) (West 1996). Section 2-1003(a) also specifically provides that if a party claiming injury refuses to comply with a request for a consent, the trial court, on motion, shall issue an order authorizing disclosure to the extent set forth in the statute or dismissing the case. 735 ILCS 5/2-1003(a) (West 1996).

The requirement that personal injury plaintiffs authorize in writing the disclosure of medical information, and further authorize their physicians and other health care providers to engage in informal communications with the opposing party's attorneys, represents the General Assembly's response to the decision of the appellate court in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 102 Ill. Dec. 172, 499 N.E.2d 952 (1986). In Petrillo, the court upheld an order barring a defense attorney in a product liability case from engaging in ex parte conferences *fn2 with the plaintiff's treating physicians. The Petrillo court based its holding on the fiduciary relationship existing between physician and patient and the physician's ethical obligation as a member of the medical profession to safeguard patient confidences. The court concluded that a patient who files suit implicitly consents to the release of medical information through the methods of discovery authorized by the supreme court rules, but "does not, by simply filing suit, consent to his physician discussing that patient's medical confidences with third parties outside court-authorized discovery methods, nor does he consent to his ...


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