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Deprizio v. MacNeal Mem'l Hosp. Ass'n.

Court of Appeals of Illinois, First District, Third Division

May 28, 2014

LOUISE DEPRIZIO, Plenary Guardian of the Estate and Person of LISA DEPRIZIO, a Disabled Person, Plaintiff-Cross-Appellee,
v.
THE MacNEAL MEMORIAL HOSPITAL ASSOCIATION, Defendant-Appellee/Cross Appellant (VHS OF ILLINOIS, INC., a Corporation, MIDWEST PSYCHIATRY ASSOCIATES, S.C., Corporation, HUMAIRA F. SAIYED, M.D., MIDTOWN PHYSICIANS, S.C., a Corporation, DILIP P. PATEL, M.D., S.C., a Corporation, YILI GUO, M.D., and DILIP P. PATEL, M.D., Defendants, KEITH A. HEBEISEN, Contemnor-Appellant)

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. No. 09 L 6426. The Honorable Eileen Mary Brewer, Judge, presiding.

SYLLABUS

In a medical malpractice action arising from plaintiff's mental impairment, which allegedly resulted from a lithium overdose that occurred while she was a patient at defendant hospital, the trial court properly ordered plaintiff to disclose certain limited records concerning her treatment for cognitive impairment prior to the alleged overdose as reviewed by independent witnesses identified by plaintiff as witnesses at trial, since the trial judge selected the material to be disclosed during an in camera review and the disclosure encroached to the least possible extent on plaintiff's privilege under the Mental Health and Developmental Disabilities Confidentiality Act.

For Plaintiffs & Contemnor-Appellant: Thomas K. Prindable, Robert Sheridan, Clifford Law Offices, Chicago, IL.

For Defendant-Appellee: Susan K. Laing, Sapna G. Lalmalani, Anderson, Rasor & Partners, LLP, Chicago, IL.

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.

OPINION

HYMAN, PRESIDING JUSTICE

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[¶1] The confidentiality privilege set out in the Mental Health and Developmental Disabilities Confidentiality Act (the Act) (740 ILCS 110/1 et seq . (West 2010)) comes before us after plaintiff's counsel, for the second time, takes a " friendly" contempt. His refusal, unrelated to the earlier appeal, regards various records about the treatment of plaintiff's cognitive impairment reviewed by independent expert witnesses that plaintiff identified as testifying at trial. The issue involves the effect of Rule 213(f)(2) disclosures on the exercise of the confidentiality privilege created by the Act. Ill. S.Ct. R. 213(f)(2) (eff. Jan. 1, 2007). MacNeal Memorial Hospital Association cross-appeals, asserting that the trial court erred in limiting the extent of the disclosure of Deprizio's mental health records. We find no error and affirm.

[¶2] BACKGROUND

[¶3] Plaintiff Lisa Deprizio alleges she suffered from a lithium overdose as a patient at MacNeal Memorial Hospital in September 2002. She filed suit against MacNeal and her doctors in 2004, alleging medical negligence. In 2005, one of the defendant doctors filed a motion to compel production of records regarding Deprizio's psychological care in the decade leading up to her injury. Deprizio refused and claimed the material was protected under the Act. The trial court denied the motion to compel in part, but granted production

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of: (i) records pertaining to Deprizio's prescriptions, levels, and reactions to lithium; and (ii) mental health records from a defendant doctor who treated Deprizio after her alleged injury.

[¶4] Deprizio's attorney, Keith Hebeisen, refused to produce the records, the court held him in contempt, and he appealed. We affirmed disclosure. Deprizio v. MacNeal Memorial Hospital Ass'n, 384 Ill.App.3d 1081, 973 N.E.2d 1085, 362 Ill.Dec. 689 (2008) (unpublished order under Supreme Court Rule 23). The supreme court denied Hebeisen's petition for leave to appeal. Deprizio v. MacNeal Memorial Hospital Ass'n, 231 Ill.2d 630, 902 N.E.2d 1084, 327 Ill.Dec. 698 (2009) (table).

[¶5] On remand, Deprizio filed supplemental disclosures of her three independent expert witnesses. See Ill. S.Ct. R. 213(f)(2) (eff. Jan. 1, 2007). Dr. Stacy McCarty, a doctor of rehabilitation medicine, would testify that Deprizio suffered an organic brain injury as a result of lithium toxicity. McCarty listed Deprizio's symptoms as " impaired memory, impaired cognition, impaired abstract reasoning, slow processing speed and decline in intelligence." She would testify that the injury is permanent.

[¶6] Another expert, Dr. Nancy Landre, a clinical neuropsychologist, would testify on Deprizio's neuropsychological evaluation. Regarding the causes, her report stated, " [W]hile depression can certainly have an adverse impact on cognitive functioning, the timing, level of impairment, and severity of Ms. Deprezio's [ sic ] deficits suggest that other factors are also responsible for this apparent decline. In particular, *** Ms. Deprezio's [ sic ] episode of Lithium toxicity in 2002 ***." (Emphasis added.)

[¶7] The third expert, Dr. Shabbir Zarif, a psychiatrist, stated that Deprizio suffers from an organic brain injury resulting from the 2002 lithium overdose. Specifically, Zarif wrote in his report that the results of Deprizio's cognitive examination showed that her visual spatial skills, attention, information processing ability, motor skills, and global cognitive functioning were more than one standard deviation below normal. He stated:

" This cognitive exam pattern is not necessarily found in patients with bipolar, depressive or anxiety disorders, esp[ecially] the visio spatial functions and are more consistent with a schizophrenia process which she clinically does not fit the picture of. However in light of the relatively recent decline, the history of lithium toxicity, coma, repeated seizures, ...

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