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Kunz v. South Suburban Hospital

December 24, 2001


Appeal from the Circuit Court of Cook County No. 97 L 15020 Honorable Jennifer Duncan-Brice, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill


We address a discovery issue in this appeal that implicates the physician-patient privilege. The question before us is whether a parent who files a medical malpractice action on behalf of one child may, by answering certain questions and raising certain issues in the course of discovery, waive the physician-patient privilege that shields the medical records of her other children. The defendants in this case persuaded the trial court that the records were discoverable. Counsel for the plaintiff refused to produce the records. He was then held in contempt and fined. Counsel now appeals the contempt order. We hold that the medical records relating to the mother's pregnancies and deliveries are discoverable, as well as the records of the minor plaintiff's siblings as they relate to their births, when, and only when, the privilege is waived. But we hold that subsequent medical records of the siblings are not discoverable. We affirm in part, reverse in part and vacate the contempt order.

Sharon and Karl Kunz filed a negligence suit on behalf of their son Kurt, who suffers from cerebral palsy. Plaintiffs allege Kurt's present condition was caused by defendants' negligence in the course of Kurt's birth. Kurt was delivered at South Suburban Hospital by Dr. Neil Levie. Dr. Perry Gilbert, the radiologist who interpreted Sharon's ultrasound before Kurt's birth, was an agent of Ingalls Memorial Hospital and Dr. Harold Lipschutz Radiology, Ltd., n/k/a Radiology Imaging Consultants, S.C.

Defendants were able to obtain court orders compelling plaintiffs to produce treatment records for Sharon's earlier pregnancies, in 1988 and 1990, that resulted in the births of Kurt's two siblings. They also obtained orders compelling the production of subsequent medical records of those siblings. Defendant South Suburban Hospital had already obtained records associated with the 1988 birth of one of the siblings at South Suburban. Plaintiffs moved to bar the use of the records of the 1988 birth. Dr. Levie moved to compel the records from the 1990 birth at an Indiana hospital of the other sibling. Dr. Gilbert's counsel then filed an affidavit from an anonymous consultant explaining why the records would be relevant to an expert opinion about the causes of Kurt's cerebral palsy. Dr. Levie's counsel filed an affidavit stating that a neurologist said there is a reasonable likelihood that the records might affect the opinions he or she could reach about the causes of Kurt's condition.

Plaintiffs moved to strike the affidavits and, in the alternative, moved to compel the appearance of the unnamed consultant and neurologist to answer questions about the affidavits in compliance with section 2-1105 of the Code of Civil Procedure. 735 ILCS 5/2-1105 (West 1998). The court denied plaintiffs' motions. Plaintiffs' counsel then refused to produce the treatment records of Sharon's second pregnancy, the 1990 birth and the subsequent medical records of Kurt's siblings. Plaintiffs' counsel was held in contempt and a sanction was imposed, from which he appeals.

We first address two motions taken with the case. Defendants first moved to dismiss plaintiffs, as named appellants, because they are not proper parties to the appeal of a contempt order. We agree. A discovery order compelling production is appealable only through a contempt order and imposition of a sanction. People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171, 429 N.E.2d 483 (1981). Plaintiff's counsel is the only proper appellant in this appeal. See Lewis v. Family Planning Management, Inc., 306 Ill. App. 3d 918, 715 N.E.2d 743 (1999). The motion to dismiss Sharon and Karl Kunz as appellants is granted.

Defendants also moved to dismiss a part of the appeal that claims as error the denial of the plaintiffs' motion to strike the affidavits of defendants' experts. Discovery orders are not appealable in a pending case. They are reviewable on appeal from the final order. Silverstein, 87 Ill. 2d at 171. The trial court's denial of plaintiffs' motion to strike the affidavits did not resolve the litigation on its merits, nor was the denial "cast in terms of a contempt proceeding imposing sanctions" (Silverstein, 87 Ill. 2d at 171), which would allow review. 155 Ill. 2d R. 304(b)(5). We have no jurisdiction over the trial court's denial of plaintiffs' motion to strike the affidavits of defendants' experts. Defendants' motion to dismiss that portion of the appeal is also granted.

We turn to the contempt order prompted by counsel's refusal to comply with court-ordered discovery. The trial court is afforded great latitude in discovery matters and we will not disturb the trial court's ruling absent a manifest abuse of discretion. D.C. v. S.A., 178 Ill. 2d 551, 559, 687 N.E.2d 1032 (1997).

A person's medical history and records are subject to the right of privacy, which may not be invaded in the absence of waiver. See Kunkel v. Walton, 179 Ill. 2d 519, 689 N.E.2d 1047 (1997). "[T]he medical records of nonparties are protected by the physician-patient privilege and are not discoverable." In re D.H., 319 Ill. App. 3d 771, 774, 746 N.E.2d 274 (2001). The privilege "will often act to bar what is clearly relevant and material information, since the privilege pertains to any information which a physician obtains 'in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient.'" D.H., 319 Ill. App. 3d at 775, quoting House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437, 446, 564 N.E.2d 922 (1990). In Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850, 435 N.E.2d 140 (1982), a patient sued a hospital, then moved to discover records of other patients who received similar treatment from the hospital. The trial court ordered the records produced with the names of the patients deleted. We reversed, holding:

"Although the Illinois statute on the physician-patient privilege exempts civil malpractice actions, we believe that that exception should be limited to only allow the disclosure of the records of the patient who is bringing the malpractice action. A broadening of that exception to allow the disclosure of communications involving patients who are not parties to the litigation would neither serve a public interest nor the private interests of those nonparty patients." Parkson, 105 Ill. App. 3d at 855. See 735 ILCS 5/8-802 (West 1998).

Using similar reasoning, courts in other states have refused to find waiver of the physician-patient privilege when a mother brings suit on behalf of a child for injuries suffered during childbirth. "By suing in her representative capacity as the mother of the infant plaintiff, the mother did not waive her physician-patient privilege even though she alleged in the bill of particulars that the defendants failed to record or appreciate her medical history." Murphy v. LoPresti, 232 A.D.2d 461, 462, 648 N.Y.S.2d 169, 170 (1996). The Murphy court held that the mother only waived the privilege for records when the child was in utero. See also Palay v. Superior Court, 18 Cal. App. 4th 919, 22 Cal. Rptr. 2d 839 (1993).

A Michigan court found the privilege extended to the medical records of a minor plaintiff's siblings. Dierickx v. Cottage Grove Hospital, 152 Mich. App. 162, 393 N.W.2d 564 (1986). "Although [the minor plaintiff's siblings] Katie and Kimberly are related to plaintiffs, they are not parties to this action. The existence of a genetic defect may be an issue in this litigation, but Katie and Kimberly (or their representatives) have not placed the health of Katie and Kimberly in controversy. Thus, they have not waived the privilege." Dierickx, 152 Mich. App. at 167, 393 N.W.2d at 566. "Further, plaintiffs have not implicitly waived the statutory privilege as to Katie and Kimberly by bringing this lawsuit." Dierickx, 152 Mich. App. at 168, 393 N.W.2d at 567. The Michigan court held that "although the requested medical records may be relevant to defendants' theory of a genetically transmitted defect, the records are privileged and not subject to discovery." Dierickx, 152 Mich. App. at 169, 393 N.W.2d at 567.

In Wepy v. Shen, 175 A.D.2d 124, 571 N.Y.S.2d 817 (1991), defendant hospital asked for discovery of medical and school records of the siblings of the minor plaintiff. The court held that information revealed by the plaintiff's parents during their depositions was "mere facts and incidents of the medical history" of the plaintiff's siblings, not confidential communications made to a doctor, and so was not privileged. But the court also held that the parents did not waive the physician-patient privilege as to the medical records themselves, despite expert testimony that there was a possible connection between plaintiff's neurological problems and her siblings' problems. Wepy, 175 A.D.2d at 125, 571 N.Y.S.2d 818. "The mere fact that a relative, distant or near in terms of kinship, has commenced a medical malpractice action alleging a birth defect should not subject all her relatives to the 'long arm' reach of the law authorizing their medical histories opened to all." In re New York County DES Litigation, 168 A.D.2d 44, 47, 570 N.Y.S.2d 804, 805 (1991). "[T]he plaintiffs are not required to turn over their mother's medical records beyond the gestation period; nor are the more distant members of their families required to release medical records." New York DES, 168 A.D.2d at 47, 570 N.Y.S.2d at 806. The privilege shielding the medical background of nonparties "cannot be defeated by defendants' assertion that it is material and necessary to their ...

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