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Doe v. Williams McCarthy, LLP

Court of Appeals of Illinois, Second District

December 8, 2017

JANE A. DOE, Plaintiff-Appellant,
v.
WILLIAMS McCARTHY, LLP; CLAYTON LINDSEY; and TREVA SARVER, Individually and as Trustee of the Ruby Louise Lance Living Trust Dated September 2, 2009, and as Successor Trustee of the Ruby Louise Lance Revocable Living Trust Dated March 15, 2002, Defendants-Appellees.

         Appeal from the Circuit Court of Lee County. No. 15-L-4 Honorable Daniel A. Fish, Judge, Presiding.

          PRESIDING JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.

          OPINION

          HUDSON PRESIDING JUSTICE.

         ¶ 1 I. INTRODUCTION

         ¶ 2 Plaintiff, Jane A. Doe, appeals an order of the circuit court of Lee County dismissing her complaint against defendants, Williams McCarthy, LLP (Williams McCarthy); Clayton Lindsey, and Treva Sarver (individually and in her capacities as trustee of the Ruby Louise Lance Living Trust dated September 2, 2009 and successor trustee of the Ruby Louise Lance Revocable Living Trust dated March 15, 2002), in accordance with section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2016)). For the reasons that follow, we affirm in part, reverse in part, and remand.

         ¶ 3 II. BACKGROUND

         ¶ 4 Plaintiff's second amended complaint alleged as follows. Plaintiff previously sued Sarver regarding "the validity of the Trust and Estate of a Decedent" (the trust litigation). Sarver was represented in the trust litigation by attorney Lindsey and the law firm that employed him, Williams McCarthy. Plaintiff alleged that defendants violated an order pursuant to the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq. (2012)) (HIPAA order) and the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 2016)) by disclosing to persons, including the public, without plaintiff's consent and without following the procedures specified in the Act, facts pertinent to plaintiff's mental-health status and treatment.

         ¶ 5 Plaintiff alleged that, in connection with the trust litigation, defendants filed 11 subpoenas containing protected information. Plaintiff continued, "the [Lee County circuit court] allowed the public to access and view court documents in the [trust litigation], including the documents contained within Plaintiff's court file such as the above-mentioned eleven subpoenas, all of which identified Plaintiff's medical providers and mental health providers, via in-person viewing and via on-line case information searching, until the court entered an Order, on [July 26, 2013], sealing the file from public access." According to plaintiff, this violated the HIPAA order, entered on March 13, 2012, which limited access to such records to "attorneys of record and the staff of the attorneys of record." The complaint went on to allege that defendants knew that certain individuals were "therapists, " that Sinnissippi Centers, Inc., in Dixon and Rochelle were mental-health treatment facilities, and that the disclosure of the records of such individuals and facilities violated the Act to the extent that the procedures set forth in the Act were not followed.

         ¶ 6 The complaint further alleged that Williams McCarthy and Lindsey conveyed such information to Sarver, in violation of the HIPAA order. Further, contrary to the provisions of the Act, defendants did not notify plaintiff's treatment providers that they were seeking access to plaintiff's mental-health records. Moreover, defendants failed to make the threshold showing that plaintiff had placed her mental health at issue in the trust litigation. Also, prior to any disclosure, the trial court was required to make an in camera review of the records. The subpoenas were not accompanied by a judge's written order authorizing the disclosure.

         ¶ 7 The complaint alleged that Williams McCarthy and Lindsey contacted plaintiff's treatment providers and threatened that they would be held in contempt if they did not release plaintiff's records. During a deposition, Williams McCarthy and Lindsey attempted to question a psychiatrist about plaintiff's mental-health status and treatment, in violation of the HIPAA order and the Act.

         ¶ 8 The complaint further alleged that Sarver violated the HIPAA order by "viewing and copying such records of Plaintiff[] and by obtaining and viewing a listing of Plaintiff's medical providers and mental health providers which Defendants Williams McCarthy and Lindsey had obtained from Attorney Paul Whitcombe, who was then Plaintiff's counsel in the [trust litigation]." Plaintiff stated that, during a deposition, Sarver "made an outburst and yelled, within the hearing of and in the presence of the parties, their counsel, the court reporter, and the deponent, that the Plaintiff was mentally ill." In May 2013, plaintiff received three envelopes in the mail, with no return addresses, containing copies of various medical records, mental-health records, and subpoenas. Finally, during the pendency of the trust litigation, defendants made statements, in open court and in the presence of the public, concerning plaintiff's mental-health status, diagnoses, and treatment.

         ¶ 9 The complaint set forth five counts under which plaintiff sought relief, incorporating by reference the material set forth above. The first count set forth a claim under the Act as to all defendants. It alleged that defendants violated the Act by seeking and obtaining plaintiff's mental-health records even though she did not place her mental health at issue; seeking and obtaining such records without ensuring that the trial court had conducted an in camera review of them; seeking and obtaining such records without ensuring that the trial court had made the requisite findings under the Act after conducting an in camera review; seeking and obtaining such records without written notice to plaintiff and her mental-health treatment providers; seeking a court order requiring plaintiff to sign a written consent to the disclosure of such records; filing a motion to dismiss, "seeking to punish [p]laintiff for exercising her statutory privilege to refuse to disclose" such records; and issuing subpoenas that did not comply with the Act.

         ¶ 10 Count II alleged legal malpractice on the part of Williams McCarthy and Lindsey. It first alleged an attorney-client relationship between all defendants. It then claimed that plaintiff was a third-party beneficiary of the attorney-client relationship. Plaintiff based this claim on the fact that Lindsey drafted the HIPAA order, purportedly for plaintiff's benefit. Thus, plaintiff reasons, Williams McCarthy and Lindsey owed her a duty of reasonable care. The actions taken by Williams McCarthy and Lindsey that led to the disclosure of certain mental-health records breached this duty.

         ¶ 11 Plaintiff's third count alleged negligent supervision on the part of Williams McCarthy. This count sought to hold Williams McCarthy liable for failing to prevent Lindsey from violating the HIPAA order and the Act. Plaintiff argued that Lindsey's repeated violations ...


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