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BROWN v. SAINI

United States District Court, N.D. Illinois, Western Division


November 4, 2005.

PAMELA BROWN and ROBERT BROWN, Plaintiffs,
v.
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.

I. History

  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. ยง 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.

  II. Analysis

  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. 1997).

  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. 110/10(a)(1).

  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.

20051104

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