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Doe v. Illinois Department of Professional Regulation

June 26, 2003

JOHN DOE, PLAINTIFF-APPELLEE,
v.
ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, AURELIA PUCINSKI, DIRECTOR, ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, LUCIA KUBIATOWSKI, CHIEF ALJ, ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Aaron Jaffe, Judge Presiding.

The opinion of the court was delivered by: Justice Hartman

UNPUBLISHED

On August 8, 2001, the circuit court issued a preliminary injunction barring defendants, Illinois Department of Professional Regulation, Aurelia Pucinski, Director, Illinois Department of Professional Regulation, and Lucia Kubiatowski, Chief ALJ, Illinois Department of Professional Regulation (collectively "the Department"), from disclosing at any hearing any documents, records or testimony pertaining to plaintiff, John Doe, without first obtaining a confidentiality release from him. On March 14, 2002, the court denied the Department's motion to vacate entry of the injunction. The Department appeals from the circuit court's March 14, 2002 order.

On appeal, the Department argues that the court erred in finding that plaintiff had a right to nondisclosure of his mental health records because section 38 of the Medical Practice Act of 1987 (Medical Practice Act) (225 ILCS 60/38 (West 2000) (section 38)) and section 7(a) of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (the Confidentiality Act) (740 ILCS 110/7(a) (West 2000)), authorized the use of a patient's redacted mental health records without his consent in a disciplinary proceeding against the patient's psychiatrist.

In 1999 the Department filed an administrative complaint against Dr. Marc Hugh Slutsky, a psychiatrist, alleging various violations of the Medical Practice Act with regard to his treatment of plaintiff. Specifically, the Department alleged that Dr. Slutsky failed to keep "contemporaneous and retrievable records of his treatment and evaluation" of "Patient X" and that Dr. Slutsky had prescribed controlled substances to "Patient X," including vicodin.

On August 8, 2001, plaintiff filed a complaint for injunctive relief and an emergency motion for injunctive relief against the Department. Plaintiff alleged that he had been Dr. Slutsky's patient for eleven years and was the subject matter of the disciplinary proceeding against Dr. Slutsky. Plaintiff had not consented to allow any information regarding his identity or medical treatment to be the subject of testimony or evidence at Dr. Slutsky's disciplinary hearing. On August 8, 2001, during the course of Dr. Slutsky's disciplinary hearing, the Department asked questions regarding plaintiff and provided the administrative law judge (ALJ) and a member of the Illinois Medical Disciplinary Board a document from plaintiff's insurer without having redacted plaintiff's signature on the document. The Department intended to call as witnesses an insurance investigator and two Department investigators to testify regarding plaintiff's medical records. Plaintiff alleged that the Department breached his right to confidentiality in violation of the Confidentiality Act and the Medical Practice Act. Plaintiff also alleged that he would suffer irreparable harm unless the Department was enjoined from revealing any information regarding him without his consent; he had no adequate remedy at law; and he raised more than a fair question as to the existence of a right to a hearing.

Attached to the complaint was the affidavit of Lillian Walanka, in which she stated that during the August 8 disciplinary hearing regarding Dr. Slutsky, the Department's attorney referred to "Patient X" (plaintiff) during his opening statement; referred to medical records for "Patient X" which had been turned over to plaintiff's insurance provider; stated that Dr. Slutsky had failed to maintain controlled substance prescription records for "Patient X"; and stated that the Department intended to call an insurance investigator and two Department investigators to testify regarding "Patient X's" medical records. Walanka further averred that, during the hearing, the Department provided the ALJ and a medical disciplinary board member with an insurance authorization form containing the unredacted signature of "Patient X."

On August 8, 2001, following hearing on the emergency motion, the circuit court found, as part of its order, that plaintiff: (1) "has an ascertainable right in need of protection"; (2) "has a right to non-disclosure of his mental health records"; (3) "does not have an adequate remedy at law"; and (4) "has a likelihood of success on the merits." The court ordered that "defendants are prohibited from disclosing in any hearing any documents, records or testimony pertaining to John Doe without a confidentiality release from John Doe" and "all records, evidence or transcript of the current proceedings related to John Doe shall be impounded until such time as it can be ascertained how to safely dispose of them." The order was to "remain in effect until further order of the court." The court then set the case for a status date, giving the Department the opportunity to fully review the material and file a responsive pleading.

On September 7, 2001, the Department filed a "Motion to Vacate or Reconsider Entry of Injunction" (motion to vacate). On March 14, 2002, following argument, the circuit court denied the Department's motion. On April 12, 2002, the Department filed a notice of interlocutory appeal, appealing the orders of August 8, 2001, and March 14, 2002.

On May 1, 2002, an order dismissing the appeal for lack of jurisdiction was improvidently entered and the Department's motion to vacate the May 1, 2002 order was granted on May 17, 2002. In its motion to vacate the May 1, 2002 order, the Department admitted that the notice of interlocutory appeal was untimely as to the circuit court's August 8, 2001 order. Only the March 14, 2002 order is at issue in this appeal.

I.

The parties first dispute whether or not this court has jurisdiction to consider this appeal. In its jurisdictional statement, the Department claims that this court has jurisdiction pursuant to Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1) (Rule 307(a))) which provides:

"An appeal may be taken to the Appellate Court from an interlocutory order of court:

(1) granting, modifying, refusing, dissolving, or refusing to dissolve or ...


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