United States District Court, N.D. Illinois, Western Division
November 4, 2005.
PAMELA BROWN and ROBERT BROWN, Plaintiffs,
GURBAZ SINGH SAINI, DEEPAK KHURANA; DEEPAK KHURANA, M.D., S.C., an Illinois corporation d/b/a Magistrate Judge SPECIALISTS IN GASTROENTEROLOGY; P. Michael Mahoney and CENTEGRA HEALTH SYSTEM d/b/a NORTHERN ILLINOIS MEDICAL CENTER, an Illinois corporation, Defendants.
The opinion of the court was delivered by: P. MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter is before the court on Plaintiffs' October 26, 2005
Motion for a Protective Order regarding portions of Plaintiff
Pamela Brown's mental health records. For the reasons stated
below, Plaintiffs' Motion is denied.
This case is a medical malpractice case filed by Plaintiffs
Pamela and Robert Brown. Jurisdiction in this case is based upon
diversity, 28 U.S.C. § 1332. Plaintiffs' First Amended Complaint
alleges four counts of negligence and four counts of loss of
consortium against Defendants. Generally, Plaintiffs allege that
Defendants failed to adequately treat and care for Pamela Brown,
which caused her to suffer the following: continued bowel obstruction and bowel perforation,
cardiac arrest, brain damage, severe physical pain,
emotional suffering, anxiety, fear of impending doom,
depression, loss of self concept, anger, frustration,
and loss of confidence in physicians and hospitals,
unnecessary operations and procedures, permanent
scarring, bowel adhesions, disability and loss of
ability to live a normal life, lost income, wages,
and benefits, and substantial medical expenses in the
past and in the future.
Pl.s' First Amended Complaint, at 8. Further, Plaintiff Robert
Brown alleges he suffered, as a direct and proximate result of
Defendants' negligence "loss of society, comfort, and support of
his wife." Pl.s' First Amended Complaint, at 11.
Plaintiff Pamela Brown has put her mental health at issue in
the Complaint by alleging "emotional suffering, anxiety, fear of
impending doom, depression, [and] loss of self concept,"*fn1
Defendants are attempting to obtain Plaintiff's mental health
records from Dr. Lampsa, the Aurora Behavioral Health Center, and
other mental healthcare professionals and institutions.
In her medical records, Plaintiff Pamela Brown describes her
relationships and various problems that she perceived regarding
her husband, mother, aunt, uncle, sister, and daughter.
Plaintiffs ask the court for a protective order allowing the
redaction of Pamela Brown's medical records that refer to her
relatives. Plaintiffs prepared for the court's in camera
inspection a highlighted version of Dr. Lampsa's
records,*fn2 which marks fourteen separate entries for redaction.
Plaintiffs state that the marked entries are privileged
pursuant to the Mental Health and Developmental Disabilities Act
("the Mental Health Act"), 740 ILL. COMP. STAT. 110/1 et seq.,
because Plaintiff Robert Brown and Plaintiff's relatives' mental
health is not at issue in this case. Pl.s' Mtn., at 1. Defendants
argue that only the "recipient" of mental health services can
raise privilege under the Mental Health Act, and that Plaintiff
Pamela Brown waived her privilege when she introduced her mental
condition and the mental health services she has received as an
element of her claim. Def.s' Resp., at 3-4. In reply, Plaintiffs
maintain their argument that any mental health information
regarding Plaintiff Robert Brown (and other non-parties)
contained in Plaintiff Pamela Brown's mental health records is
privileged and not discoverable.
Under Federal Rule of Evidence 501, the federal common law of
privileges applies to federal question cases. See Jaffee v.
Redmond, 51 F.3d 1346, 1354 (7th Cir. 1995), aff'd 518 U.S. 1
(1996). In diversity cases, such as this one, state law applies,
and the court must apply the Mental Health Act, 740 ILL. COMP.
STAT. 110/1 et seq. to determine if the psychotherapist-patient
privilege is properly raised by Plaintiff Pamela Brown.
In this case, Plaintiff Pamela Brown has introduced her mental
condition and her mental health services as an element of her
claim. Thus, the court finds that Plaintiff Pamela Brown has
waived her right to deny Defendants discovery based upon a
psychotherapist-patient privilege. See Vann v. Lone Star
Steakhouse & Saloon, Inc., 967 F.Supp. 346, 350 (C.D. Ill.
The court also finds that Plaintiff Robert Brown and Plaintiff
Pamela Brown's mother, aunt, uncle, sister, and daughter are not
"recipients" of mental health care, and therefore do not appear capable of asserting the privilege contained in the Mental
Health Act. 740 ILL. COMP. STAT. 110/10(a), 110/2.
The Mental Health Act does, however, provide some protections
to third parties who may be harmed by the disclosure. In fact,
the act specifically states the following:
Records and communications may be disclosed in a
civil . . . proceeding in which the recipient
introduces his mental condition or any aspect of his
services received for such condition as an element of
his claim or defense, if and only to the extent the
court . . . finds, after in camera examination of
testimony or other evidence, that it is relevant,
probative, not unduly prejudicial or inflammatory,
and otherwise clearly admissible; that other
satisfactory evidence is demonstrably unsatisfactory
as evidence of the facts sought to be established by
such evidence; and that disclosure is more important
to the interests of substantial justice than
protection from injury to the therapist-recipient
relationship or to the recipient or other whom
disclosure is likely to harm.
See 740 ILL. COMP. STAT. 110/10(a) (emphasis added). The
Federal Rules of Civil Procedure also afford some protection in
this case, as not all unprivileged medical records are
discoverable. According to Fed.R.Civ.P. 26(c),
the court in which the action is pending . . . may
make any order which justice requires to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including . . .
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had only
on specified terms and conditions, including a
designation of the time or place; (3) that the
discovery may be had only by a method of discovery
other than that selected by the party seeking
discovery; (4) that certain matters not be inquired
into, or that the scope of the disclosure or
discovery be limited to certain matters; (5) that
discovery be conducted with no one present except
persons designated by the court.
Fed.R.Civ.P. 26(c)(1) (emphasis added).
Thus, the court must use its discretion to decide what degree
of protection is required and whether a protective order is appropriate in this case. See
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). In
deciding whether a protective order is warranted, the court must
balance the interests of the parties, taking into account the
harm to the party seeking the protective order and the importance
of the disclosure to the non-moving party. Wiggins v. Burge,
173 F.R.D. 226, 229 (N.D. Ill. 1997). The party seeking the
protective order has the burden of showing that good cause exists
by alleging particular and specific facts. See Gulf Oil Co. v.
Bernard, 452 U.S. 89 (1981).
In this case, the court does not take lightly the burden of
production. The importance of keeping mental health records
confidential is strong, and the relevance needed to
counterbalance the intrusion on these privacy interests is high.
However, after, careful in camera inspection of the records
submitted by Plaintiffs, the court finds the records are indeed
highly relevant to the development of Defendant's case on all
eight counts. The court is comfortable stating, as required by
the Mental Health Act, that "disclosure is more important to the
interests of substantial justice than protection from injury to
the therapist-recipient relationship or to the recipient or other
whom disclosure is likely to harm." 740 ILL. COMP. STAT.
Accordingly, under Rule 26 and the Mental Health Act, the court
Orders the production of the medical records submitted to the
court.*fn3 However, in light of the sensitivity of these
records, this discovery shall take place under a protective order
to be stipulated to by both parties. The parties shall submit an
Agreed Protective Order to the court by November 18, 2005
preserving Plaintiffs' privacy while allowing Defendants access
to the materials. III. Conclusion
For the foregoing reasons, Plaintiffs' October 26, 2005 Motion
for a Protective Order is denied. Parties are to submit an Agreed
Protective Order by November 18, 2005.
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