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Smentek v. Sheriff of Cook County

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

April 8, 2014

JOHN SMENTEK, et al., Plaintiffs,



Defendant Cook County's Motion for Protective Order to Stay Compliance with Request for Records [226] and Plaintiffs' Motion to Vacate Order of December 19, 2013 [247] are both granted in part and denied in part as set out further herein.


On October 30, 2013, this court entered an order granting plaintiffs' request for additional dental and medical records for detainees in the Cook County Department of Corrections ("the Jail") but limiting the number from the plaintiffs' requested 167 detainees to a sampling totaling 33 additional detainees, in addition to the 95 detainees whose medical and dental records had previously been produced. (Order, Oct. 30, 2013.) [Dkt 202.][1] One of the reasons for limiting the required production was the undisputed burden on the County's resources to locate, pull and copy inmate medical and dental records.[2] Defendants presented unrebutted evidence that it takes between 20 minutes and two hours to pull and scan each detainee's medical and dental records. ( Id. at 3, citing affidavit of Linda Kampe, Director of Health Information Management for Cermak Health Services.)

On November 7, 2014, a week after that ruling, plaintiffs' counsel served another document request for an additional 276 grievances that had been filed by 141 detainees plus dental records for those 141 detainees. (Pls.' Renewed Mot. to Extend Disc. at 3 [dkt 210]; Cook County's Resp., Ex D [dkt 216].) Two weeks later, based in part on that request, Plaintiff moved for an extension of the discovery cut-off, observing that the recently served discovery could not be completed by the cut-off date, December 20, 2013. (Pls.' Renewed Mot. to Extend Disc. at 3.)[3]

Meanwhile, plaintiffs' counsel also began to send requests for batches of medical records of detainees directly to Cermak Health Services of Cook County ("Cermak"). (Defs.' Mot. Prot. Order, Ex. E.) Plaintiffs' counsel sent two letters on November 14, 2013, each asking for medical records for 12 detainees. ( Id. ) The next day, plaintiffs' counsel sent two more letters, requesting medical records for 9 and 12 more detainees. ( Id. ) Within a week, plaintiffs' counsel had requested medical records of 78 detainees. ( Id. )

Cook County then filed its motion for a protective order, asking that Cermak not be compelled to respond to the requests. (Defs.' Mot. Prot. Order.) Cook County argued that plaintiffs' requests for so many medical records on the heels of the order denying their discovery request for dental/medical records demonstrated that the requests were an effort to circumvent the court's ruling limiting discovery. Considering the sequence of events, and in light of the burden on Cermak to respond (78 requests × 20 minutes to 2 hours = between 26 to 156 hours of Cermak employees' time), this court granted the motion for protective order on an interim basis pending briefing of the underlying issues. (Order, Dec. 19, 2013.) [Dkt 232.] Plaintiffs then filed their motion to vacate the interim order (Pls.' Mot. Vacate [dkt 247]), which the court took as part of the briefing on the issue. (Order, Jan. 24, 2014.) [Dkt 254.] Apparently, sometime after Cook County filed its motion, plaintiffs' counsel requested some additional detainees' records. ( See Pls.' Mot. Vacate, Ex. 1 (listing names not included on the letters attached to Cook County's motion).)

Plaintiffs filed a motion for preliminary injunction on January 6, 2014. [Dkt. 236.] Attached as a group exhibit to that motion are 53 declarations from persons who were detainees at the Jail in 2013. (Dkt 236, Ex. 11.) The declarations are formulaic; the declarants state that they filed grievances after making health service requests about dental pain. The declarations are dated from December 12 through December 26, 2013. ( Id. )

None of the declarants are among the 195 detainees for whom plaintiffs requested dental/medical records in August 2013. Forty declarants are on the list of 141 detainees for whom plaintiffs sought dental/medical records in the November 7, 2013 document request. A number of the declarants are among those whose medical records plaintiffs' counsel requested from Cermak in November 2013.

Plaintiffs' motion to vacate suggests that the interim order prevents plaintiffs' counsel from investigating claims of clients other than class members in this case, citing one example, Jai Crutcher. (Pls.' Mot. Vacate at 3.) The request for Mr. Crutcher's records was apparently part of one of the batch requests for medical records including those of class members in this case. ( Id., Ex. 1.) Both Cermak's response and the response of Cook County's counsel state that if plaintiffs' counsel is looking for records of detainees other than for this case, plaintiffs' counsel should advise. ( Id., Exs. 1 and 3.) There is no indication that plaintiffs' counsel took up that suggestion.


Plaintiffs claim that they have "an unconditional right" under the Illinois Hospital Records Act, 735 Ill. Comp. Stat. § 5/8-2001, to receive a copy of the medical records, and that this court lacks jurisdiction to limit their ability to do so because their requests to Cermak are not discovery but rather investigation, for which they cite American Bank v. City of Menasha, 627 F.3d 261 (7th Cir. 2010). (Pls.' Resp. Order at 1) [Dkt 239.] The Illinois Hospital Records Act provides that a private or public health care facility shall, upon the presentation of a valid authorization for release of records signed by the patient or the patient's legally authorized representative, allow the patient or representative to examine the patient's treatment records and permit copies of such records to be made by his or her health care representative or authorized attorney. 735 Ill. Comp. Stat. § 5/8-2001(b). That right is not, however, "unconditional, " as plaintiffs claim. The Act requires a valid authorization, and also requires that the person making the request reimburse the facility "at the time of such copying for all reasonable expenses, " including a handling charge not to exceed $20 for processing the request and other charges at rates specified in the Act. Id. at § 5/8-2001(c).[4]

Plaintiffs' counsel's letters to Cermak requesting records state that waivers to release medical records are enclosed, and the court will assume, arguendo, that valid authorizations were enclosed, although none are included with the motion. Plaintiffs' counsel's letters do not, however, refer to tendering payment for expenses as set out in the Act, and so the interim order raised the question of whether plaintiffs' counsel had tendered payment to Cermak for the requested records. (Order, Dec. 19, 2013 at 11.) Plaintiffs' counsel has refused to answer that question, but it is relevant to the determination of whether plaintiffs' requests are part of a legitimate investigation or an attempt to circumvent the discovery limitations in this case.

The specific fee and cost schedule set out in the Illinois Hospital Records Act is an integral part of the procedure under the Act. That fact is reinforced by the Illinois Supreme Court's recounting, in Solon v. Midwest Medical Records Assn., 925 N.E.2d 1113 (Ill. 2010), of the legislative history of an amendment to the Act regarding the $20 handling charge. The Court observed that there is an "abundance of legislative history" regarding that $20 charge, which "was expressly agreed upon by competing interested parties after lengthy negotiations." Id. at 1119, 1121. During the debates on the amendment, legislators recounted that the fee schedule, including " an initial fee that you have to pay, a handling charge of [$20], " was the result of negotiations and compromise among the trial lawyers, medical society, hospital society and representatives of companies that copy records. Id. at 1120 (quoting 92d Ill. Gen. Assem., Senate Proceedings, April 5, 2001, at 226-27 (statements of Senator Cullerton, emphasis added by Court in Solon )). The Court further observed, "Representative Turner confirmed that the $20 handling charge could be deemed an order fee' or a deposit fee' at the time the records were requested." Solon, 925 N.E.2d at 1120 (citing 92d Ill. Gen. Assem., House Proceedings, May 8, ...

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