The opinion of the court was delivered by: Justice South
Appeal from the Circuit Court of Cook County. The Honorable Kathy M. Flanagan, Judge Presiding.
On July 3, 1996, plaintiff, D.H., filed a complaint against the Chicago Housing Authority (CHA), alleging that while she resided in a CHA apartment at 3849 S. King Drive, in Chicago, the apartment contained hazardous lead paint that caused her to become lead poisoned. She further alleged that as a result of this lead-poisoning she was neurologically damaged. CHA denies these allegations.
During the deposition of plaintiff's mother, Samara Powell (Powell), defense counsel asked several questions pertaining to the educational, medical and social background of both herself and other members of the family. Plaintiff's counsel, John Leighton, objected to this questioning and defense counsel certified the questions so that the court could later determine which questions should be answered by Powell.
On November 6, 1998, defendant filed a motion to compel answers to certified questions. As part of the motion, they requested all medical and educational records of plaintiff's parents and siblings. In support of this motion, defendant attached the affidavit of Ms. Claire Ernhart. In her affidavit, Ms. Ernhart stated that because the effects of lead on neuropsychologic function remain elusive and significant questions remain, she does not believe one can conclude to a scientific certainty that lead has a measurable impact on child development. Therefore, she concluded, that any analysis of an individual child must take into account all of the circumstances of that child's development. In her opinion, the educational and medical records of the parents, siblings, and distant relatives was necessary.
On November 13, 1998, the trial court granted defendant's motion to compel with regards to some of the certified questions, and continued the hearing with regards to defendant's requests for medical and educational records. At the hearing on November 20th the trial court gave defendant leave to subpoena the medical and education records of the parents and siblings and made the subpoenas returnable to her chambers for an in camera inspection to determine relevancy. Plaintiff's counsel was ordered to produce the authorizations necessary to release these records, but he refused to do so. During the hearing, plaintiff's counsel argued that based upon Illinois case law, non-party medical and educational records were privileged. The court disagreed with plaintiff's counsel, found him in contempt and fined him $50.
On December 9, 1998, plaintiff filed a motion to vacate the court's order of November 20th and moved to strike Ms. Ernhart's affidavit on the basis that defendant, as a governmental entity, could not contest the findings and underlying basis of the federal, state and municipal government statutes, regulations and ordinances which prohibit the use of lead paint on the walls of residences because of potential neurologic damage to children who ingest that lead paint. In defendant's response, they argued that Illinois did not address the issue presented, which is whether factual data contained in medical records was discoverable. They argued that New York case law should be followed on this issue since New York has case law which reconciles the physician-patient privilege of non-party witnesses with the full disclosure requirement shared by both New York and Illinois practice rules.
Plaintiff's motion to vacate the court's order and to strike Ernhart's affidavit was denied on July 23, 1999. On August 16, 1999, plaintiff filed a timely notice of appeal.
Plaintiff raises two issues on appeal: (1) whether the medical records of non-parties are privileged or subject to a constitutional right to privacy; and (2) whether defendant, as a governmental entity, can rely on the opinion of an expert, which contradicts the public policy of the city, state and federal government.
A contempt proceeding is an appropriate method for testing the correctness of a discovery order, and where an individual appeals a contempt judgment imposed for violating a discovery order, that discovery order is subject to review. Norskog v. Pfiel, 314 Ill. App. 3d 877, 881, 733 N.E.2d 386, 390 (2000). If the discovery order is invalid, then the contempt order, for failure to comply with that discovery order, must be reversed. In re Marriage of Bonneau, 294 Ill. App. 3d 720, 723, 691 N.E.2d 123, 127 (1998). A trial court lacks the discretion to compel the disclosure of information that is privileged or otherwise exempted by statute or by common law. Our review of this matter is de novo. Bonneau, 294 Ill. App. 3d at 723, 691 N.E.2d at 127.
The primary issue is whether the medical and educational records of non-parties are privileged. Plaintiff argues that according to Illinois case law, the medical and educational records of non-parties are privileged and that defendant has tendered no exception to this fundamental principal. Plaintiff further argues that Illinois case law does address the issues raised on appeal, and that contrary to defendant's position, New York case law should not be followed.
Defendant argues that these records are not privileged because they seek to discover the facts contained in the medical records, not the communications. They agree with plaintiff that Illinois courts have found a constitutional right to privacy of medical records that memorialize the confidences between a patient and a medical provider. However, they assert that this right to privacy does not extend to factual data contained in the medical records. Defendant states that since Illinois courts have not rendered any decisions about the discoverability of items that are outside of the protected realm of confidences shared with medical providers, consideration of New York case law on this issue is appropriate.
First, we find that the medical records of nonparties are protected by the physician-patient privilege and are not discoverable.
The physician-patient privilege provides in pertinent part:
"Physician and patient. No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except only *** (2) in actions, civil or criminal, against the physician for malpractice, *** (4) in all actions brought by or against the patient ...