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Burger v. Luthern General Hospital

October 18, 2001

DORIS BURGER, APPELLEE,
v.
LUTHERAN GENERAL HOSPITAL ET AL., APPELLANTS.



The opinion of the court was delivered by: Justice McMORROW

UNPUBLISHED

Docket Nos. 89643, 89644 cons.-Agenda 19-March 2001.

At issue in these consolidated cases is whether certain provisions of section 6.17 of the Hospital Licensing Act (Act) (210 ILCS 85/6.17 (West 2000)), as amended by Public Act 91-526 (Pub. Act 91-526, eff. January 1, 2000), violate the Illinois Constitution of 1970. The circuit court of Cook County held that portions of sections 6.17(d) and (e) and all of section 6.17(h) violate the doctrine of separation of powers (Ill. Const. 1970, art. II, §1). The circuit court also found that portions of subsections (d) and (e) of section 6.17 violate a patient's right to privacy with respect to medical information (Ill. Const. 1970, art. I, §§6, 12). However, the circuit court rejected plaintiff's contention that the challenged provisions of the Act constituted impermissible special legislation. Ill. Const. 1970, art. IV, §13. The circuit court severed the provisions it found unconstitutional from the remainder of section 6.17. Defendants appealed directly to this court. 134 Ill. 2d R. 302(a). For the reasons that follow, we reverse in part, affirm in part, and remand this cause to the circuit court for further proceedings.

BACKGROUND

During the early afternoon of December 12, 1996, plaintiff, Doris Burger, went to the emergency room of Lutheran General Hospital (Hospital) with a leg injury. Within a few hours, after examination and treatment, plaintiff was released. On the evening of December 13, 1996, plaintiff was admitted to the Hospital for intravenous antibiotic therapy. On December 16, 1996, plaintiff's leg was amputated at the knee. Plaintiff thereafter filed a medical malpractice complaint in the law division of the circuit court of Cook County, naming four doctors, the Hospital and the Hospital's parent corporation as defendants. Plaintiff alleged that the Hospital was negligent in the care provided to her in the Hospital's emergency room on December 12, 1996. In addition, plaintiff alleged that the Hospital was negligent in several respects during her admission from December 13 to December 16, 1996.

Discovery in plaintiff's case was ongoing at the time that Public Act 91-526 became effective on January 1, 2000. This Public Act, which was unanimously passed by the Illinois General Assembly, amended section 6.17 of the Act, which governs protection of, and confidential access to, a hospital patient's medical records and information. Public Act 91-526 added several new subsections to section 6.17, including subparagraphs (d) and (e), which are challenged by plaintiff in this appeal. Public Act 91-526 also relettered the subsections which were originally part of the preamended version of section 6.17. One of these provisions, now lettered as subparagraph (h), is also challenged by plaintiff at bar. Pertinent provisions of section 6.17 provide:

"(a) Every hospital licensed under this Act shall develop a medical record for each of its patients as required by the Department [of Public Health of the State of Illinois] by rule.

(b) All information regarding a hospital patient gathered by the hospital's medical staff and its agents and employees shall be the property and responsibility of the hospital and must be protected from inappropriate disclosure as provided in this Section.

***

(d) No member of a hospital's medical staff and no agent or employee of a hospital shall disclose the nature or details of services provided to patients, except that the information may be disclosed to the patient, persons authorized by the patient, the party making treatment decisions, if the patient is incapable of making decisions regarding the health services provided, those parties directly involved with providing treatment to the patient or processing the payment for that treatment, those parties responsible for peer review, utilization review, quality assurance, risk management or defense of claims brought against the hospital arising out of the care, and those parties required to be notified under the Abused and Neglected Child Reporting Act, the Illinois Sexually Transmissible Disease Control Act, or where otherwise authorized or required by law.

(e) The hospital's medical staff members and the hospital's agents and employees may communicate, at any time and in any fashion, with legal counsel for the hospital concerning the patient medical record privacy and retention requirements of this section and any care or treatment they provided or assisted in providing to any patient within the scope of their employment or affiliation with the hospital.

(h) Any person who, in good faith, acts in accordance with the terms of this Section shall not be subject to any type of civil or criminal liability or discipline for unprofessional conduct for those actions.

(i) Any individual who willfully and wantonly discloses hospital or medical record information in violation of this Section is guilty of a Class A misdemeanor. As used in this subsection, `wilfully or wantonly' means a course of action that shows an actual or deliberate intention to cause harm or that, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 210 ILCS 85/6.17(a), (b), (d), (e), (h), (i) (West 2000).

On January 19, 2000, plaintiff filed with the circuit court an emergency motion to bar ex parte communication between the Hospital's counsel and those members of its medical staff, agents, and employees who provided health care to plaintiff but were not named as defendants in plaintiff's complaint. Plaintiff's motion also requested that the circuit court declare subsection (e) of section 6.17 unconstitutional on the basis that it violates the separation of powers and the personal privacy rights of Illinois plaintiffs. The circuit court ordered that, pending disposition on the merits of plaintiff's motion, counsel for the Hospital was not to communicate outside the presence of plaintiff's attorney with any of plaintiff's health-care providers, other than those who were specifically alleged to be negligent in plaintiff's complaint and whose negligence could be imputed to the Hospital. On February 3, 2000, plaintiff filed with the circuit court an amended motion wherein plaintiff additionally sought the invalidation of subparagraphs (d) and (h) of section 6.17 of the Act.

At the time plaintiff filed these motions in the circuit court of Cook County, several similar motions were pending in that court's law division. On February 17, 2000, the presiding judge of the law division of the Cook County circuit court entered an order intended to "efficiently and fairly deal with the multitude of motions" filed in the law division which challenged the constitutionality of section 6.17 of the Act. The order stated that the "interests of justice and judicial economy are best served by the designation of one judge to hear the motions on a consolidated basis." Plaintiff's case was thereafter designated the lead case in the consolidated proceedings.

With the leave of the circuit court, plaintiff filed a fifth complaint at law on February 18, 2000, which added a fourth count to plaintiff's action. Count I of plaintiff's complaint, captioned "entity liability," alleges that on December 12, 1996, and on December 13 through 16, 1996, the Hospital and its parent corporations, "acting through their employees and agents," negligently failed to admit plaintiff to the hospital, failed to provide "timely and competent physician care," failed to "properly diagnose and treat her condition of ill being," failed to "obtain timely and appropriate consultations," and negligently discharged plaintiff from the emergency room. Plaintiff did not identify by name any employee or agent of the Hospital as a defendant in this count. Counts II and III of plaintiff's complaint alleged specific acts of negligence by certain named physicians "acting within the scope and course of their agency relationship" with the Hospital and its parent corporations. The newly added count IV requested that the circuit court declare Public Act 91-526 unconstitutional and enjoin its operation. On that same day, plaintiff also filed a motion for judgment on the pleadings as to count IV of her complaint.

On May 10, 2000, the circuit court issued a written memorandum opinion and order. The court determined that its decision was controlled by this court's rulings in Kunkel v. Walton, 179 Ill. 2d 519 (1997), and Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), wherein this court held that several provisions of the Civil Justice Reform Act of 1995 were unconstitutional. Applying the reasoning of Kunkel and Best to the matter at bar, the circuit court determined that portions of sections 6.17(d) and (e) and all of section 6.17(h) violated the doctrine of separation of powers. The circuit court drew an analogy between certain provisions contained in subparagraphs (d) and (e) of section 6.17 and the amendment to section 2-1003(a) of the Code of Civil Procedure (735 ILCS 5/2-1003(a) (West 1998)), which was held to violate the separation of powers doctrine in Kunkel and Best. The circuit court found that the provisions of subsections (d) and (e), allowing ex parte communications between agents and employees of the Hospital and the Hospital's risk managers and legal counsel with respect to any care or treatment provided to a patient of the Hospital within the scope of the treater's Hospital employment, were "constitutionally problematic" because the provisions fail to limit discovery to issues relevant to the allegations raised by plaintiff in her medical malpractice action.

In addition, the circuit court determined that the immunity provisions contained within subparagraph (h) of section 6.17 violate the doctrine of separation of powers because these provisions "clash" with Supreme Court Rule 219 (166 Ill. 2d R. 219), which authorizes a circuit court to impose a range of sanctions for a party's failure to comply with supreme court rules or court orders relating to discovery. Further, the circuit court determined that "the presumed effect of [sub]section [h] would prohibit, or at least impinge upon," the authority of the Attorney Registration and Disciplinary Commission (ARDC) and this court to review attorney conduct.

The circuit court judge also determined that, pursuant to our decisions in Kunkel and Best, subparagraphs (d) and (e) of section 6.17 constitute an unreasonable invasion of plaintiff's constitutional privacy interest. The decision of the circuit court was premised primarily upon the lack of relevancy restrictions in both subparagraphs. In addition, the circuit court found that the harm caused to a hospital patient's privacy interests outweighed the public interest served by disclosure.

The circuit court, however, rejected the argument proffered by plaintiff that subsections (d) and (e) of section 6.17 constitute impermissible special legislation, in violation of article IV, section 13, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, §13). The circuit court disagreed with plaintiff that the statute created an arbitrary classification between different types of defendants. The circuit court stated that "[d]ue to the unique nature of hospital defendants, this court finds them distinguishable from other classes of defendants. A hospital's involvement in a medical malpractice lawsuit is notably different from that of other tort defendants." The circuit court further found that Public Act 91-526 rationally related to the legislative purpose sought to be accomplished by the revisions to the Act.

Finally, the circuit court concluded that the constitutionally valid portions of section 6.17 of the Act were "substantial measures, capable of standing independently of the invalidated provisions." Accordingly, the circuit court severed the invalid provisions from the remainder of section 6.17.

On May 18, 2000, the circuit court entered a judgment order in favor of plaintiff on count IV of her fifth complaint, "finding that the challenged sections of 210 ILCS 85/6.17(d), (e) and (h) are unconstitutional for the reasons set forth in the memorandum opinion and order," and that the "operation and enforcement of the challenged portions of subsections (d), (e) and (h) are enjoined." In accordance with the order, the circuit court barred any ex parte communication between hospital defense counsel or risk managers and any health-care provider of plaintiff for "whose conduct plaintiff does not seek to hold the hospital vicariously liable."

Direct appeal was taken to this court by two groups of defendants. 134 Ill. 2d R. 302(a). Those appeals have been consolidated. *fn1 We allowed amicus curiae briefs to be filed by the County of Cook, the Illinois Hospital and Healthsystems Association, and the Illinois State Bar Association.

ANALYSIS

This appeal presents the principal issues of whether the provisions contained within subsections (d), (e) and (h) of section 6.17 of the Act violate the doctrine of separation of powers found in article II, section 1, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. II, §1), and whether subparagraphs (d) and (e) infringe upon a patient's privacy interest in confidential medical information derived from article I, sections 6 and 12, of our constitution (Ill. Const. 1970, art. I, §§6, 12). The constitutionality of a statute is a question of law subject to de novo review. Miller v. Rosenberg, 196 Ill. 2d 50, 57 (2001); Brown's Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 420 (1996). Statutes are presumed to be constitutional, and the party challenging the validity of the statute has the burden to clearly establish constitutional invalidity. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 351 (1999); Russell v. Department of Natural Resources, 183 Ill. 2d 434, 441 (1998). A court must construe a statute so as to affirm its constitutionality if the statute is reasonably capable of such a construction. Russell, 183 Ill. 2d at 441. Accordingly, " `if [a] statute's construction is doubtful, a court will resolve the doubt in favor of the statute's validity.' " Miller, 196 Ill. 2d at 58, quoting People v. Shephard, 152 Ill. 2d 489, 499 (1992).

Plaintiff at bar urges us to affirm the judgment of the circuit court that, based upon the reasoning of our decisions in Kunkel and Best, subsections (d), (e) and (h) of section 6.17 of the Act violate the separation of powers doctrine and that, in addition, subparagraphs (d) and (e) unconstitutionally infringe upon a patient's protected privacy interests. Defendants and amici Cook County and Illinois Hospital and Healthsystems Association respond that both plaintiff in her argument and the circuit court in its decision ignore the compelling health-care policy concerns that support the enactment of Public Act 91-526 and err in exclusively focusing upon the potential effect of these provisions in the event a patient institutes medical malpractice litigation against a hospital. Defendants and amici also respond that plaintiff and the circuit court misapplied this court's rulings in Kunkel and Best to the facts presented at bar. We begin our analysis by addressing plaintiff's separation of powers claim.

I. Separation of Powers

The Illinois Constitution provides that the legislative, executive and judicial branches are separate, and that "[n]o branch shall exercise powers properly belonging to another." Ill. Const. 1970, art. II, §1. Article VI, section 1, of the Illinois Constitution of 1970 vests the judicial power of this state in the supreme court, the appellate court, and the circuit courts.

In " `both theory and practice, the purpose of the [separation of powers] provision is to ensure that the whole power of two or more branches of government shall not reside in the same hands.' " Best, 179 Ill. 2d at 410, quoting People v. Walker, 119 Ill. 2d 465, 473 (1988). However, the doctrine of separation of powers "was not designed to achieve a complete divorce among the three branches of government" (In re J.J., 142 Ill. 2d 1, 7 (1991); accord Strukoff v. Strukoff, 76 Ill. 2d 53, 58 (1979)) and does not require "governmental powers to be divided into rigid, mutually exclusive compartments" (In re J.J., 142 Ill. 2d at 7; In re Estate of Barker, 63 Ill. 2d 113, 119 (1976)). Because the "separation of the three branches of government is not absolute and unyielding" (Best, 179 Ill. 2d at 411), the doctrine of separation of powers "is not contravened merely because separate spheres of governmental authority may overlap" (Best, 179 Ill. 2d at 411; see also People ex rel. Devine v. Murphy, 181 Ill. 2d 522, 530 (1998); McAlister v. Schick, 147 Ill. 2d 84, 94 (1992); In re J.J., 142 Ill. 2d at 7).

Indeed, we have previously observed that "[w]here matters of judicial procedure are at issue, the constitutional authority to promulgate procedural rules can be concurrent between the court and the legislature. The legislature may enact laws that complement the authority of the judiciary or that have only a peripheral effect on court administration." Kunkel, 179 Ill. 2d at 528; People v. Williams, 124 Ill. 2d 300, 306 (1988). If a statute conflicts with a rule of the judiciary, a court will seek to reconcile the legislation with the judicial rule, where reasonably possible. Kunkel, 179 Ill. 2d at 529; Williams, 124 Ill. 2d at 306. This court, however, retains primary constitutional authority over court procedure, and the doctrine of separation of powers is violated "when a legislative enactment unduly encroaches upon the inherent powers of the judiciary, or directly and irreconcilably conflicts with a rule of this court on a matter within the court's authority." Kunkel, 179 Ill. 2d at 528.

A. Subparagraphs (d) and (e)

We first address plaintiff's separation of powers challenge to subparagraphs (d) and (e) of section 6.17 of the Act. In her brief to this court, plaintiff contends that "[t]he decision of Best v. Taylor Machine Works and Kunkel v. Walton, through the operation of stare decisis, control this issue." Thus, plaintiff's constitutional challenge is almost exclusively premised upon the general argument that just as the provisions of section 2-1003(a) of the Code of Civil Procedure (735 ILCS 5/2-1003(a) (West 1996)) were found to violate the separation of powers doctrine in Kunkel and Best, the provisions of subparagraphs (d) and (e) should also be invalidated because they violate the separation of powers "in the same manner." Because the primary focus of plaintiff's separation of powers argument is that subsections (d) and (e) of section 6.17 are analogous to section 2-1003(a), which was invalidated in Kunkel and Best, we review those decisions in some detail.

In Kunkel v. Walton, 179 Ill. 2d 519 (1997), and Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), the plaintiffs challenged as unconstitutional section 2-1003(a) of the Code of Civil Procedure (735 ILCS 5/2-1003(a) (West 1996)), which had been amended by Public Act 89-7, a legislative package more popularly known as the Civil Justice Reform Act of 1995. *fn2 The amended section 2-1003(a) mandated that all plaintiffs filing personal injury claims waive their physician-patient privilege and disclose all medical records to any ...


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