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People ex rel. Department of Professional Regulation v. Manos

December 05, 2002

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. THE DEPARTMENT OF PROFESSIONAL REGULATION, APPELLANT,
v.
THOMAS G. MANOS, D.D.S., AND MARK KOLOZENSKI, D.D.S., APPELLEES.



The opinion of the court was delivered by: Justice Freeman

Docket No. 93299-Agenda 33-September 2002.

Defendants, Drs. Thomas G. Manos and Mark Kolozenski, refused to produce two patient dental records and patient appointment schedules named in a subpoena duces tecum issued by plaintiff, the Department of Professional Regulation (hereafter Department), pursuant to section 60d of the Civil Administrative Code of Illinois (20 ILCS 2105/60d (West 1998) (recodified as 20 ILCS 2105/2105-105 (West 2000))). Upon granting the Department's motion for summary judgment, the circuit court of Cook County ordered defendants to produce the records requested in the Department's subpoena duces tecum with the patient names and any other identifying information redacted. On appeal, the appellate court affirmed in part, holding that defendants must disclose the patient appointment schedules with the names and addresses of the patients identified therein. 326 Ill. App. 3d 698, 708. However, the appellate court also reversed in part, holding that the Department could not compel defendants to produce the requested dental records since they were protected by the physician-patient privilege (735 ILCS 5/8-802 (West 2000)). 326 Ill. App. 3d at 709. We allowed the Department's petition for leave to appeal under Supreme Court Rule 315(a) (177 Ill. 2d R. 315(a)). For the reasons that follow, we affirm the appellate court's judgment.

BACKGROUND

Defendants are board-certified and licensed dentists in the State of Illinois and each has a license to practice periodontics in this state. On November 4, 1999, defendants received a subpoena duces tecum from the Department requesting that they produce (1) the complete dental records-excluding X rays but including patient history, progress notes, anesthesthia records, claim forms, etc.-for the two patients named therein, and (2) the complete appointment schedules for the 22 days listed, including the names, addresses and phone numbers of the patients treated. Defendants produced all non-privileged documents to the Department and withheld only those documents containing confidential and privileged patient treatment information.

On February 3, 2000, the Department filed a complaint in the circuit court of Cook County to enforce its administrative subpoena duces tecum. Among other things, the complaint stated that defendants were the subjects of an administrative investigation that was being conducted by the Department. Defendants waived service of summons and answered the complaint by asserting the physician-patient privilege as an affirmative defense. Both parties thereafter moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2000)).

On July 31, 2000, the circuit court conducted a hearing on the Department's motion for summary judgment. After hearing arguments from both parties, the circuit court granted the Department's motion for summary judgment and ordered defendants to produce the records requested in the Department's subpoena duces tecum with the patient names and any other identifying information removed.

On appeal, the appellate court found that dentists are surgeons and, accordingly, the physician-patient privilege held by patients is applicable to them. 326 Ill. App. 3d at 707. Therefore, the appellate court held that the Department could not compel defendants to produce the confidential information contained in the dental records of patients. 326 Ill. App. 3d at 709. In addition, the appellate court found that the information contained in the appointment schedules was not protected by any privilege. 326 Ill. App. 3d at 708. Thus, the appellate court ordered defendants to produce the appointment schedules for the dates listed in the Department's subpoena with the names, addresses and phone numbers of the patients treated. 326 Ill. App. 3d at 708.

ANALYSIS

Neither party disputes the appellate court's judgment affirming the circuit court's ordering of defendants to produce the appointment schedules for the dates listed in the Department's subpoena duces tecum with the names, addresses and phone numbers of the patients treated. Therefore, the sole issue before this court is whether the Department can compel defendants to produce the confidential material contained in their patient records. The question is one of statutory interpretation and, as such, our standard of review is de novo. People v. Rivera, 198 Ill. 2d 364 (2001).

The Department initially maintains that the broad investigatory powers bestowed upon it by the General Assembly in the Civil Administrative Code of Illinois (20 ILCS 2105/2105-1 et seq. (West 2000)) prevail over any assertion of the physician-patient privilege that a subject of an investigation might raise. Stated differently, it is the Department's position that the physician-patient privilege has no applicability during the course of an investigation. This is so, the Department argues, because the Illinois Dental Practice Act (225 ILCS 25/1 (West 2000)) and the Civil Administrative Code empower the Department, in the course of an investigation, to compel the production of any books, papers, records, or any other documents which the agency deems relevant or material to any such investigation at any time. We cannot agree.

We first note that the legislature did not expressly state in the Civil Administrative Code that the investigatory powers given to the Department override the physician-patient privilege which exists in Illinois. That privilege, which was codified by the General Assembly in section 8-802 of the Code of Civil Procedure (see 735 ILCS 5/8-802 (West 1994) *fn1 ), stands as a testament to the legislature's recognition of a patient's interest in maintaining confidentiality in his or her medical dealings with his or her health-care provider. However, the privilege is not limitless, and the General Assembly has specifically delineated 10 exceptions in which the privilege may yield. See 735 ILCS 5/8-802 (West 2000). None of the exceptions, however, refer to the investigatory powers of the Department. To hold as the Department suggests would force this court to read a provision into the Civil Administrative Code that is not there and to read an exception into the physician-patient privilege statute that also is not there. This we are not prepared to do because " `[t]he only legitimate function of the courts is to declare and enforce the law as enacted by the legislature, to interpret the language used by the legislature where it requires interpretation, and not to annex new provisions or substitute different ones, or read into a statute exceptions, limitations, or conditions which depart from its plain meaning.' " Bronson v. Washington National Insurance Co., 59 Ill. App. 2d 253, 261-62 (1965), quoting Belfield v. Coop, 8 Ill. 2d 293, 307 (1956).

Our conclusion in this regard is in keeping with this court's history in upholding the viability of the privilege against the broad powers of an investigatory authority. In People v. Bickham, 89 Ill. 2d 1 (1982), a grand jury issued two subpoenas duces tecum to a doctor for the medical records of 63 patients. Bickham, 89 Ill. 2d at 2. One of the patients consented to the disclosure, but the consent of the other patients was never secured. Bickham, 89 Ill. 2d at 3-4. The circuit court ordered the doctor to turn over the records, but he refused and was cited for contempt of court. The matter ultimately reached this court. We noted that, contrary to the State's position, none of the exceptions to the physician-patient privilege set forth in the statute applied to the facts of the case. We therefore held that except for the records released by the single patient, the remainder of the patient information requested from the grand jury was protected by the privilege. We so held despite our acknowledgment of "the desirability in maintaining the breadth of the grand jury's power to conduct investigations regarding criminal violations." Bickham, 89 Ill. 2d at 5-6.

We note that a grand jury has extensive powers to subpoena witnesses and obtain any documents relevant to any matter under investigation. 725 ILCS 5/112-4(b) (West 2000). Like the appellate court below, we believe that "[i]f, as in Bickham, the broad power of the grand jury to investigate criminal violations must yield to the privacy concerns protected by the physician-patient privilege, then *** the investigatory powers of the Department must also yield." 326 Ill. App. 3d at 709. We, therefore, reject the Department's contention that its broad investigatory powers under the Civil Administrative Code of Illinois and the Illinois Dental Practice Act prevail over the statutorily enacted physician-patient privilege.

The Department next contends that even if the statutory physician-patient privilege is applicable to its investigations, the appellate court erred in holding that dentists fall within the statute's ambit. In other words, the Department maintains that the physician-patient privilege does not apply to dentists. Defendants respond that ...


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