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Lama v. Preskill

November 5, 2004

GRACE LAMA, PLAINTIFF-APPELLANT,
v.
DAVID PRESKILL, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 01-L-392. Honorable Terrence J. Brady, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum

PUBLISHED

Plaintiff, Grace Lama, appeals a contempt order imposed against her and her attorney, Edmund J. Scanlon, when they refused to produce documents that the trial court ordered them to turn over. Plaintiff argues that the documents are protected by the attorney-client privilege and are not discoverable. For the following reasons, we affirm the trial court's judgment that the contested documents are not protected by the attorney-client privilege, but we vacate the contempt order.

On May 15, 2001, plaintiff filed a complaint alleging that defendant, David Preskill, M.D., negligently performed a March 23, 1999, laparoscopy of an ovarian cyst. According to plaintiff, during the laparoscopy, defendant negligently incised the retroperitoneum, which caused plaintiff to require an emergency laparotomy. In addition, plaintiff alleged that she first became aware of defendant's negligence on June 28, 1999.

Defendant subpoenaed all of plaintiff's medical records and bills. Defendant also moved to dismiss the complaint under section 2--619(a)(5) of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619(a)(5) (West 2000)). In his motion, defendant argued that plaintiff's cause of action was barred by the two-year limitations period for suing a physician, which is provided in section 13--212 of the Code (735 ILCS 5/13--212 (West 2000)). According to defendant, plaintiff's cause of action became time-barred after March 23, 2001, or two years after the laparoscopy. In support of the motion, he claimed that plaintiff knew of defendant's allegedly negligent conduct at the time of the laparoscopy because she required additional emergency surgical procedures for stabilization.

On October 24, 2001, the trial court denied defendant's motion without prejudice. It found that a question of fact existed regarding when plaintiff became aware of the alleged negligence.

On August 21, 2002, defendant moved for summary judgment. As support for the motion, defendant relied on plaintiff's deposition testimony to establish that she knew of the alleged negligence at the time of the laparoscopy. During her deposition, plaintiff testified that the laparoscopy was to be performed on an outpatient basis. Yet, following the surgery, she was in the intensive care unit and hospitalized for five days. Plaintiff stated that she first thought that her injuries might have been wrongfully caused when she heard in passing that defendant could no longer perform surgeries. However, plaintiff was unable to recall when the comment about defendant was made, exactly where she was at the time, or who made the comment.

Additionally, in his reply, defendant stated that, three days after her surgery, plaintiff requested her medical records. Via an affidavit, attorney Terrence Carden averred that, on March 27, 1999, four days after the surgery and while plaintiff was still hospitalized, plaintiff's husband, William, met with him on plaintiff's behalf. William brought plaintiff's medical records to the meeting.

Plaintiff moved to strike Carden's affidavit. Plaintiff argued that William did not give Carden permission to disclose the matters they discussed during their meeting, and, thus, by making the disclosure, Carden had violated Rules 1.6 and 1.9 of the Illinois Rules of Professional Conduct (155 Ill. 2d R. 1.6; 134 Ill. 2d R. 1.9)). Determining that Carden's affidavit did not reveal any privileged information, the court denied plaintiff's motion to strike. It also granted defendant's summary judgment motion. In doing so, the court held that no issue of fact existed regarding when plaintiff knew of her injury because she needed the emergency surgery following the laparoscopy and William met with a malpractice attorney, Carden, shortly after the emergency surgery.

Plaintiff moved the court to reconsider the summary judgment. Via an affidavit, William admitted that he met with Carden on March 27, 1999, but he averred that he had never told plaintiff about the meeting or what was discussed during that meeting. The trial court granted plaintiff's motion to reconsider, concluding that a question of fact existed regarding whether plaintiff was aware of William's meeting with Carden. The court vacated the summary judgment.

On July 25, 2003, defendant subpoenaed Carden to appear for a deposition and produce documents, including William's client file. Plaintiff's attorney wrote to Carden and told him that plaintiff and William were not waiving any attorney-client privilege relating to William's meeting with Carden. Carden replied that he would comply with the subpoena by providing the documents to the court for an in camera review.

On August 19, 2003, defendant moved for an in camera inspection of the documents in Carden's client file. Defendant requested that, following the court's review, he be provided with the relevant documents. The court conducted its review. On its own motion at a subsequent hearing, the court found that some documents in Carden's file were relevant and ordered that they be copied and delivered to plaintiff's counsel to ensure that counsel was aware of the file's contents.

Defendant moved for the relevant documents to be turned over. In his memorandum, defendant argued that, by invoking the discovery rule to toll the limitations period, plaintiff placed at issue the matter of when she discovered her injury and, thereby, waived the attorney-client privilege to Carden's documents. In addition, defendant insisted that William acted as plaintiff's agent and, therefore, plaintiff was charged with knowledge of her agent's communications.

In response, plaintiff argued that she was unable to waive an attorney-client privilege between a third party, William, and Carden. Furthermore, she insisted that she was not attempting to use the privileged documents to establish that the discovery rule applied to her case and claimed that she had not brought into the lawsuit the issue of when she learned of her injury. Instead, she contended that defendant raised the issue by asserting as an affirmative defense that her claim was untimely. As for defendant's contention that William ...


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