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Norskog v. Pfiel

July 26, 2001

MARSHA NORSKOG, INDIV. AND AS ADM'R OF THE ESTATE OF HILLARY NORSKOG, APPELLANT
v.
ROGER PFIEL ET AL., APPELLEES



The opinion of the court was delivered by: Justice McMORROW

UNPUBLISHED

Docket No. 89985-Agenda 26-March 2001.

On April 30, 1999, the circuit court of Cook County issued contempt citations against Roger and Gayle Pfiel (the Pfiels) and their son, Steven Pfiel (Steven) (collectively, the defendants), for refusing to comply with discovery orders directing them to identify mental health services providers seen by Steven and to disclose information regarding Steven's diagnosis and treatment. Defendants appealed and the appellate court reversed the orders of contempt (314 Ill. App. 3d 877), finding that the trial court erred when it compelled the disclosure of this information, which was privileged pursuant to the Mental Health and Developmental Disabilities Confidentiality Act (the Mental Health Act) (740 ILCS 110/1 et seq. (West 1998)). Plaintiff, Marsha Norskog, petitioned this court for leave to appeal and the petition was granted. 177 Ill. 2d R. 315(a).

We allowed amicus briefs in support of the defendants to be filed by the Mental Health Association in Illinois and, collectively, by Brazelton Center for Mental Health Law, Equip for Equality, Inc., the Illinois Psychological Association, the National Alliance for the Mentally Ill-Illinois Chapter, the National Depressive and Manic Depressive Association, and the National Mental Health Association.

For reasons that follow, we now affirm the judgment of the appellate court.

BACKGROUND

On July 14, 1993, plaintiff's 13-year-old daughter, Hillary Norskog, was stabbed to death. Seventeen-year-old Steven, who had been dating Hillary, was charged with her murder. Initially, Steven pleaded not guilty to the criminal charges and gave notice that he would assert an insanity defense. The trial court appointed a psychiatrist, Dr. Markos, to examine Steven to determine his fitness to stand trial.

On March 18, 1995, while Steven was free on bond, he killed his brother and assaulted his sister. Thereafter, Steven entered into a negotiated plea agreement. Steven pleaded guilty to the murders of Hillary and his brother and was sentenced to life imprisonment without the possibility of parole.

In July 1995, plaintiff, individually and as the administrator of Hillary's estate, filed a civil complaint against the defendants. The complaint was amended on June 26, 1996, to allege 12 counts. Some counts have been dismissed, but the remaining counts include wrongful-death and survival actions against Steven alleging intentional assault and battery of Hillary, *fn1 wrongful-death and survival actions against the Pfiels for negligent supervision and negligent entrustment, an action against Steven for reckless infliction of emotional distress with respect to plaintiff, and an action against the Pfiels brought under the Family Expenses Act. See 750 ILCS 65/15 (West 2000).

In the negligent supervision counts, plaintiff alleges that the Pfiels knew or should have known of their minor son's "antisocial, aggressive, hostile, and criminal behavior," but failed to properly supervise and control him. The negligent entrustment counts are premised on allegations that the Pfiels negligently entrusted Steven with dangerous instrumentalities, namely, a hunting knife with a 5 1/4-inch blade, which Steven used to kill Hillary, and an automobile owned by Gayle Pfiel, which Steven drove on the night of Hillary's murder.

Plaintiff's amended complaint contained several factual allegations which made reference to Steven being the recipient of mental health services. *fn2 Both Steven and the Pfiels objected and moved to strike these allegations. Defendants contended that all mental health records and communications with mental health providers, including information which identified Steven as the recipient of mental health services, were privileged under the Mental Health Act.

Over defendants' claim of privilege, plaintiff persisted in her efforts to obtain Steven's mental health information by subpoenaing Steven's school records, submitting interrogatories to the defendants, and by subpoenaing the defendants to appear for deposition and directing them to produce documents and records which would reveal when and for what purpose Steven may have received mental health or psychiatric treatment prior to July 1993; whether a diagnosis was made; and whether a treatment plan was suggested to the Pfiels. Plaintiff also subpoenaed Dr. Markos, the court-ordered psychiatrist who examined Steven to determine his fitness to stand trial on the criminal charges. The subpoena instructed Dr. Markos to provide copies of all records received and used by him in conjunction with his court-ordered fitness examinations of Steven.

In support of her claim to this information, plaintiff argued that Steven waived the confidentiality privilege to all of his mental health records by raising the insanity defense at his criminal trial, by disclosing mental health information and records to Dr. Markos at his fitness examinations, and by providing mental health information to school officials, his probation officer, and others. Plaintiff claimed that Steven's mental health treatment was a matter of public record, having been publicly disclosed in an article in the Chicago Magazine. A copy of the article was attached to papers plaintiff filed in the circuit court.

In the alternative, plaintiff claimed that, pursuant to this court's opinion in D.C. v. S.A., 178 Ill. 2d 551 (1997), even if the confidentiality privilege had not been waived, fundamental fairness demanded that the mental health information be made available in the pending civil proceeding.

Defendants objected to the release of Steven's school records, arguing that the information was privileged under the Illinois School Students Records Act (105 ILCS 10/1 et seq. (West 2000)), as well as the Mental Health Act. Defendants also denied that the Mental Health Act confidentiality privilege had been waived and moved to quash all subpoenas and refused to answer any interrogatories which would reveal whether Steven was the recipient of mental health services.

In resolving these matters, the trial court ruled that Steven's mental health information was privileged under the Mental Health Act. The trial court reviewed in camera Steven's school records and deleted all material which would be confidential under the Mental Health Act. However, before deciding whether Steven waived the confidentiality privilege when he was examined by Dr. Markos, the trial court allowed plaintiff to depose Dr. Markos concerning the nature and scope of confidentiality admonitions given to Steven during his fitness examinations. Based on Dr. Markos' deposition testimony, the trial court, in an order dated March 16, 1999, ruled as follows:

"That Steven Pfiel's motion to quash the subpoena for deposition of Dr. Markos is granted. For reasons stated in open court, including findings that Pfiel has not waived his privilege under the Mental Health and Development [sic] Disabilities Confidentiality Act and that admonitions given to him by Dr. Markos were insufficient to constitute waiver of confidentiality or privilege, the plaintiff may not depose Dr. Markos or obtain his records pertaining to Pfiel's fitness-for-trial examinations.

*** [T]his court finds per D.C. v. S.A., 178 Ill. 2d 551 (1997), Roger Pfiel and Gayle Pfiel should produce the identities of any mental health provider seen by Steven Pfiel and the dates on which each provider saw him. Plaintiff may depose Roger Pfiel and Gayle Pfiel as to any communications made to them by a mental health provider but such questions shall be limited to Steven's diagnosis and any recommendation or admonition given to them by a mental health provider as to what they should or should not do concerning Steven's mental health. Plaintiff may depose any mental health provider limited to the above areas. Pursuant to 740 ILCS 110/10, this court shall conduct an in camera inspection of testimony or other evidence concerning the discovery information permitted above to determine that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise admissible."

On March 17, 1999, a second order was entered, directing all parties to answer Rule 213(f) interrogatories; granting plaintiff permission to depose Steven; ordering the Pfiels to disclose Steven's mental health providers by March 31, 1999; and allowing plaintiff to subpoena Steven's mental health records from providers identified, with such records being returnable to the court for examination.

In a motion dated April 14, 1999, the Pfiels "respectfully decline[d] to comply with the courts [sic] orders of March 16 and March 17, 1999 as they pertain to identifying any mental health therapists who provided services to Steven Pfiel." The Pfiels requested that the trial court "issue a contempt citation against them for the purpose of seeking appellate review of the legal issue about which there is a good faith dispute." Steven also sought a contempt citation after giving notice that he would refuse to comply with these and other orders directing him to identify mental health providers who had treated him prior to July 14, 1993.

On April 29, 1999, plaintiff filed a motion, asking the trial court to certify two questions for appellate review pursuant to Supreme Court Rule 308(a):

(1) "Does a defendant's raising and pursuing an insanity defense in a criminal case constitute a waiver of the defendant's mental health privilege arising under the Mental Health and Development Disabilities Confidentiality Act in a subsequent civil case?"

(2) "Does a defendant's disclosure of his mental health treatment and/or condition in a criminal case after a court-appointed psychiatrist informs the defendant that information provided to the court-appointed psychiatrist is not confidential, result in a waiver of any mental health privilege in a subsequent civil case?"

The trial court refused to certify these questions and, instead, entered an order on April 30, 1999, holding defendants in contempt of court for refusing to comply with the court's discovery orders. A fine of $25 was imposed on each defendant. The court noted in the order that defendants were acting in good faith, for the purpose of seeking appellate review.

On May 14, 1999, defendants appealed their contempt citations in the appellate court pursuant to Supreme Court Rule 304(b)(5). The appellate court, when ruling on the appeal, refused to consider whether Steven "placed his mental health at issue under the terms of section 10(a)(1) or otherwise waived his privilege." These matters, the appellate court held, were "not at issue in this appeal." Rather, the appellate court considered only whether Steven's mental health information, though confidential and privileged under the Act, was discoverable pursuant to D.C. v. S.A., 178 Ill. 2d 551 (1997).

Finding that the D.C. exception did not apply in this case, the appellate court ruled that defendants could not be compelled to disclose Steven's mental health information. For that reason, the appellate court reversed the orders holding defendants in contempt of court for refusing to comply with the trial court's orders.

Plaintiff petitioned this court for leave to appeal and the petition was granted. ...


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