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02/24/98 ESTATE SUE A. BAGUS DECEASED (DAVID J.

IN RE ESTATE OF SUE A. BAGUS, DECEASED (DAVID J. STINSON, AND RICHARD GAINES, CONTEMNORS-APPELLANTS).


Appeal from the Circuit Court of Winnebago County. No. 96--P--321 Honorable J. Todd Kennedy, Judge, Presiding.

The opinion of the court was delivered by: Justice Rathje delivered the opinion of the court:

Contemnors, David Stinson and Richard Gaines, appeal the order of the circuit court of Winnebago County requiring them to produce for in camera inspection items identified by Stinson as personal notes relating to his psychiatric treatment of Sue Bagus. Contemnors contend that a statutory privilege prevents the disclosure of the notes, even for in camera inspection by the trial court.

Bagus had been a patient of Dr. Stinson for some time. She was distraught, in part, because of ongoing marriage dissolution proceedings. On May 6, 1996, Bagus committed suicide. She left a will naming her husband, Stuart, as the executor of her estate.

The estate requested copies of Bagus's records from Stinson. When he declined to comply on the basis of doctor-patient privilege, the estate filed a motion to compel production. The motion stated that the estate was investigating a possible malpractice action against Stinson and needed the records so they could be reviewed by a health care professional pursuant to section 2--622 of the Code of Civil Procedure (735 ILCS 5/2--622 (West 1996)) to determine whether such an action was potentially meritorious.

Stinson filed an objection, including an affidavit identifying certain documents as "personal notes." Stinson claimed that these personal notes were exempt from disclosure, even to the court, pursuant to section 3 of the Mental Health and Developmental Disabilities Confidentiality Act (the Act) (740 ILCS 110/3 (West 1996)). The trial court stated that it had no problem with the privilege, but was concerned about who was to make the decision regarding what constituted personal notes. In reviewing the affidavit, the trial court noted that Stinson was "taking a fairly liberal interpretation" of what constituted personal notes. The court ordered Stinson to turn over his entire file, including personal notes, for in camera inspection.

Stinson thereafter filed a notice of partial compliance, but did not produce the documents he deemed personal notes. At the suggestion of Stinson's attorney, Richard Gaines, the court found Stinson and Gaines in contempt of court and fined each of them $100. Contemnors appeal.

On appeal, contemnors argue that the Act prohibits the production for in camera inspection of a psychiatrist's "personal notes." The estate concedes that personal notes are privileged but contends that the court must be allowed to inspect the documents to review the psychiatrist's claim of privilege.

To understand fully the parties' contentions, it is necessary to examine the language and structure of the Act. Section 2 defines certain terms used throughout the Act, including the following:

" 'Confidential communication' or 'communication' means any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient.

'Personal notes' means:

(i) information disclosed to the therapist in confidence by other persons on condition that such information would never be disclosed to the recipient or other persons;

(ii) information disclosed to the therapist by the recipient which would be injurious to the recipient's relationships to other persons, and

(iii) the therapist's speculations, impressions, hunches, and reminders.

'Record' means any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided. *** Record does not include the therapist's personal notes, if such notes are kept in the therapist's sole possession for his own personal use and are not disclosed to any other person, except the therapist's supervisor, consulting therapist or attorney. If at any time such notes ...


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