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Doe v. Chand

September 4, 2002; Corrected Opinion.


Appeal from the Circuit Court of St. Clair County. No. 99-L-738A Honorable Michael J. O'Malley, Judge, presiding.

The opinion of the court was delivered by: Justice Rarick

The plaintiff, Jane Doe, filed a multicount complaint in the circuit court of St. Clair County against Dr. Santosh P. Chand and Dr. Santosh P. Chand, M.D., Ltd. (defendants), alleging, inter alia, a violation of the AIDS Confidentiality Act (Act) (410 ILCS 305/1 et seq. (West 1998)).

Doe testified that in February 1999 she learned that her husband had tested positive for the human immunodeficiency virus (HIV). She stated that she did not immediately seek to be tested because she was certain what the results would be and she was not ready to find out. On April 17, 1999, Doe went to Dr. Chand's office to pick up her mother, who was also a patient of Dr. Chand's. When Doe told Dr. Chand about her husband, Dr. Chand suggested that she be tested, and she agreed. Doe testified that Dr. Chand did not provide a written consent form or give her any written information concerning the testing or the availability of counseling. Doe stated that she called Dr. Chand's office on several occasions to inquire about the results of her HIV test. Each time she was told that the test results were not in. Doe stated that she learned of the results from her sister, Pamela Randolph. Doe and her mother had gone to Randolph's house. When they arrived, Randolph told her that she had been informed by Dr. Chand that Doe had tested positive for HIV. Doe also testified that she had spoken with several other persons who stated that they knew Doe had HIV or AIDS and that they had learned of such from Dr. Chand.

Doe further testified that in May 2000 she took a leave of absence from her job as a loan processor at the local credit union. Doe stated that many of Dr. Chand's patients were customers of the credit union and that she was constantly worried about whether they knew of her condition. Doe moved to Chicago and lived with a friend. While there, she worked as a bank teller. Prior to trial, Doe relocated to Champaign, Illinois.

Barbara Fergeson testified that she was a patient of Dr. Chand's and knew Doe. In July 1999 she encountered Doe in a local shopping mall. During their conversation, Doe disclosed that her husband had AIDS and that he had given her AIDS. Fergeson stated that about a month later she was in Dr. Chand's office and mentioned that she had seen Doe. At that time Dr. Chand stated that Doe had AIDS. Lisa Mohammed, Dr. Chand's phlebotomist, and Angela Hubbard, the receptionist, were present at the time.

Pamela Randolph, Doe's sister, testified that Dr. Chand called her at home and told her that Doe had tested positive for HIV. According to Randolph, Dr. Chand felt that Doe should get the news from a family member. Randolph further testified that several months later she noticed that Doe was very upset. When Randolph asked why, Doe stated that she had been hearing rumors that others knew of her condition and that Dr. Chand had obviously told other people.

Nancy White testified that she was a patient of Dr. Chand's and knew Doe from Dr. Chand's office. White testified that she was in Dr. Chand's office when Dr. Chand called her back into an examining room and told her to stay away from Doe because she had AIDS.

Lisa Mohammed testified that she was a phlebotomist and worked in Dr. Chand's office. Mohammed stated that after being informed that Doe's test results were positive, Dr. Chand asked her if she should call Doe's sister because she did not know how Doe would handle the information. Mohammed responded that Dr. Chand knew best how to handle her patients. Mohammed did not remember Dr. Chand telling Barbara Fergeson that Doe had AIDS.

Natasha Thornton testified that she was a patient of Dr. Chand's. She was seeing Dr. Chand in an effort to get pregnant. She testified that Dr. Chand had called her and asked her to come to the office. Once she was there, Dr. Chand informed her that she had tested positive for a sexually transmitted disease. When Thornton disputed the test results, Dr. Chand said that she was just like Doe, who did not want to believe that she had AIDS.

Over defendant's objections, Doe introduced the testimony of Judith Murashige, an art therapist. Murashige testified that she had treated Doe for emotional issues related to having been diagnosed HIV positive and to Dr. Chand's disclosure of her HIV status.

Introduced into evidence was the deposition of Dr. Paul L'Ecuyer, an infectious-disease specialist. Dr. L'Ecuyer testified that Doe was his patient and had been referred to him by her insurance company for treatment of her HIV infection. He first saw Doe on May 28, 1999. Doe continued to see Dr. L'Ecuyer on a regular basis. At one of their follow-up appointments, Doe stated that she was upset with Dr. Chand for having disclosed to several people that she was HIV positive. Dr. L'Ecuyer opined that Doe suffered from anxiety and depression and that Dr. Chand's disclosure of Doe's HIV status was a contributing cause.

Dr. Chand testified that she called Doe at home. Doe's mother answered the phone and asked about the test results. Dr. Chand told her mother that she did not know what to say, that they should talk to Doe, and that she was not happy. Dr. Chand testified that Pamela Randolph called. Dr. Chand told Randolph that she was not happy and to have Doe call her because she needed to get some more work-up done on her.

On May 13, 1999, Doe came to Dr. Chand's office for further testing. Dr. Chand discussed the results of the test with Doe and the need for follow-up testing. Dr. Chand denied disclosing the results of the test to Doe's mother, her sister, or anyone else.

Prior to trial, Doe voluntarily dismissed all but the count under the Act. Dr. Chand's request for a jury trial was subsequently denied by the trial court. After a bench trial, the trial court found that Doe had proved "numerous" violations of the Act, some of which were negligent and some of which were intentional or reckless, and that she had suffered emotional and nonemotional damages as a result. Based upon these findings, the trial court awarded Doe $600,000 in actual damages and $300,000 in punitive damages.

On appeal, defendants argue first that Doe's counsel, JoeDee Favre, should have been disqualified. Defendants contend that from June 1996 through January 1998, attorney Favre represented defendants on numerous matters relating to Dr. Chand's suspension of privileges at numerous hospitals for inadequate record-keeping, complaints brought by the Illinois Department of Professional Regulation regarding Dr. Chand's license and record-keeping, a social security matter involving an order of protection with a former patient, and a medical malpractice matter. Defendants maintain that during this time, attorney Favre was provided with unrestricted access to defendant's private office and that defendants' employees provided attorney Favre with patient records. Because of the prior representation, defendants argue, attorney Favre had valuable insight into the policies and procedures of defendants' office, including the manner in which records were maintained, which is the subject matter of several of the allegations made by Doe.

The determination of whether counsel should be disqualified is directed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Franzoni v. Hart Schaffner & Marx, 312 Ill. App. 3d 394, 726 N.E.2d 810 (2000). An abuse of discretion occurs when no reasonable person would agree with the position adopted by the trial court. Gerber v. Hamilton, 276 Ill. App. 3d 1091, 659 N.E.2d 443 (1995). Where the question on appeal involves the resolution of factual issues, the trial court's determinations will not be disturbed unless they are unsupported by the evidence in the record. International Insurance Co. v. City of Chicago Heights, 268 Ill. App. 3d 289, 643 N.E.2d 1305 (1994).

Rule 1.9 of the Illinois Rules of Professional Conduct, which defines the scope of an attorney's obligation to refrain from representing a person with interests that are materially adverse to the interest of a former client, provides:

"(a) A lawyer who has formerly represented a client in a matter shall not thereafter:

(1) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless ...

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