Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County. No. 14 L 3610
Honorable Mary R. Minella, Judge Presiding.
Attorneys for Appellant: Amanda M. Martin and Izabela
Poznanski, of Law Offices of Parente & Norem, P.C., of
Chicago, for appellant.
Attorneys for Appellee: Joshua G. Vincent, Matthew P. Walsh
II, James M. Hofert, Carson R. Griffis, and Lari A. Dierks,
of Hinshaw & Culbertson LLP, of Chicago, for appellee.
JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion. Presiding Justice Delort and Justice Connors
concurred in the judgment and opinion.
1 The plaintiff-appellant, by the pseudonym Jane Doe (the
plaintiff), filed the instant action against the
defendant-appellee, Alexian Brothers Behavioral Health
Hospital (the hospital) in the circuit court of Cook County.
The plaintiffs complaint sought damages for alleged emotional
injuries she suffered after a former employee of the hospital
mailed the plaintiff a harassing letter. Following a jury
verdict in favor of the plaintiff, the trial court determined
that the verdict was inconsistent with the jury's answer
to a special interrogatory. The trial court then entered
judgment in favor of the hospital on the basis that the
special interrogatory was controlling. The plaintiff now
appeals, arguing that the special interrogatory should never
have been submitted to the jury. For the following reasons,
we reverse the judgment of the circuit court of Cook County
and remand the case for a new trial.
3 The hospital is a health care provider that operates an
outpatient psychiatric clinic in Hoffman Estates, Illinois.
The plaintiff received treatment from the hospital over the
course of several years for her mental health issues, mainly
related to sexual abuse that she suffered as a child.
4 Michelle Morrison,  the hospital's former employee who
sent the letter in question to the plaintiff, was a senior
account representative in the hospital's billing
department from 2005 to 2010. Morrison worked directly with
various insurance companies to resolve patient billing issues
related to treatment received by patients of the hospital.
Morrison's duties included requesting copies of
patients' mental health records, as required by insurers,
in order to provide the insurance companies with information
needed regarding treatment rendered to their insureds. This
information was used to obtain payment. On July 28, 2010, the
hospital discovered that Morrison was using the
hospital's computer system for personal Internet searches
unrelated to her work. As a result of this, the hospital
terminated her employment.
5 Four months after Morrison's termination, Chris Novak,
who was then the hospital's practice administrator,
received an anonymous letter containing only the word
"liar." The word's individual letters had been
cut from magazines and pasted onto stationery bearing the
hospital's letterhead. Novak brought the letter to the
attention of the hospital's risk manager, who recommended
filing a police report, which Novak did.
6 Over the next year and a half, several of the
hospital's patients received disturbing, anonymous
letters, always on stationery bearing the hospital's
letterhead. The letters referenced private information from
the patients' mental health records retained by the
hospital. The letters were of a vile and shocking personal
7 The plaintiff was the fourth known patient to receive one
of these anonymous, shocking letters. The letter sent to the
plaintiff made disturbing references to the sexual abuse that
she had suffered as a child, as well as to her mental health
issues and treatments.
8 After each patient received an anonymous letter, they
notified the hospital, which in turn notified the police.
Eventually, the police determined that Morrison was the
author of all the anonymous letters and arrested her.
Morrison was eventually convicted of three counts of felony
forgery. Morrison later testified via deposition regarding
her activity while she was employed by the hospital. Among
other things, she claimed to have taken 50 patient records
home while she was employed by the hospital.
9 The plaintiff subsequently filed the complaint in the
instant action. The plaintiffs complaint was originally filed
against both the hospital and Morrison. However, the
plaintiff dismissed Morrison as a party and filed an amended
complaint against only the hospital. The amended complaint
alleged five claims against the hospital: (1) institutional
negligence, (2) willful and wanton institutional conduct, (3)
negligent supervision, (4) negligent infliction of emotional
distress, and (5) violation of the Mental Health and
Developmental Disabilities Confidentiality Act (740 ILCS
110/1 et seq. (West 2014)). The plaintiffs complaint
averred: "The outrageous content of [Morrison's
letter] has severely and adversely impacted the health and
well-being of [the plaintiff], directly and proximately
causing her to suffer extreme emotional and psychological
trauma, and severely aggravating her mental health
conditions, requiring extensive further mental health
10 The hospital denied the material allegations of the
plaintiffs complaint and pleaded sole proximate cause as an
affirmative defense based on the "criminal conduct"
of Morrison. The hospital also filed a counter-claim for
contribution against Morrison and sought apportionment of
fault between itself and Morrison, pursuant to section 2-1117
of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1117
(West 2014)), thus making Morrison a third-party defendant in
11 A jury trial commenced. The plaintiff argued that the
hospital allowed Morrison to request and obtain patient
records that were more than the "minimum necessary"
to complete her tasks related to billing, in accordance with
the Health Insurance Portability and Accountability Act of
1996 (HIPAA) (Pub. L. No. 104-191, 110 Stat. 1936 (codified
as amended in scattered sections of 29 U.S.C. and 42
U.S.C.)). See 45 C.F.R. § 164.502(b) (2014)
("[w]hen using or *** when requesting protected health
information ***, a covered entity or business associate must
make reasonable efforts to limit protected health information
to the minimum necessary to accomplish the intended purpose
of the use, disclosure, or request"). The plaintiff
argued that the hospital failed to properly monitor the
amount of records Morrison requested, failed to supervise her
use of the records, and failed to properly train her.
12 The hospital's defense theory was that Morrison was
the sole proximate cause of the plaintiffs injuries based on
her rogue behavior and criminal conduct. The hospital
presented several witnesses, including Morrison's former
supervisor and the hospital's administrative expert, who
all testified that Morrison completed the hospital's
privacy and confidentiality training, completed 72 separate
HIPAA continuing education modules during her employment, and
signed the hospital's confidentiality statement.
13 Morrison initially testified in her deposition that her
supervisor allowed her to take some of the patients'
medical records home in order to practice medical coding.
Morrison later stated in her deposition that although her
supervisor gave her permission to use the medical records to
practice coding, she was not sure that her supervisor gave
her specific permission to take the records home.
Morrison's supervisor testified at trial that she never
gave Morrison permission to take any medical records home.
14 During the jury instruction conference, the court asked
the plaintiffs counsel whether the plaintiff was attributing
Morrison's negligence to the hospital. Plaintiffs counsel
responded: "We're alleging that it's really the
hospital's failure to supervise, failure to train, and
we're really not focusing on [Morrison's]
actions." The plaintiffs counsel also agreed that it was