Filed 10/31/08 NO. 4-08-0200
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Logan County
DENNIS M. POPECK, ) No. 07DT104
Defendant-Appellee. )
) Honorable
) Thomas M. Harris,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Defendant, Dennis M. Popeck, was charged with driving
under the influence (DUI) (625 ILCS 5/11-501(a)(2) (West 2006)).
The State filed a motion for leave to issue a subpoena duces
tecum to a hospital for his medical records for November 27,
2007, the day defendant was charged with the DUI and the day he
was involved in a motor vehicle accident and treated at the
hospital. Defendant filed a response contesting the State's
motion. The trial court denied the State's request for a sub-
poena. The State appeals. We reverse and remand.
I. BACKGROUND
On November 27, 2007, defendant was charged by citation
with DUI. On December 4, 2007, the State filed a motion for
leave to issue a subpoena duces tecum and for the entry of a
Health Insurance Portability and Accountability Act (HIPAA) (42
U.S.C. §201 (1996)) qualified protective order. On February 4,
2008, defendant filed an answer objecting to the release of all
of his medical records for November 27, 2007, arguing that only
the results of chemical tests may be released.
On February 7, 2008, the State filed an amended motion
and an attached subpoena duces tecum. In the motion, the State
alleged that defendant was involved in a motor vehicle accident
on November 27, 2007, and was taken to a hospital for treatment.
The same day, defendant was arrested for DUI. The State sought
medical records "for treatment that occurred on November 27,
2007."
On February 15, 2008, the trial court conducted a
hearing on the State's amended motion. At the hearing, defendant
argued the State's request involved a "fishing expedition" and
was overly broad. The State indicated that hospital medical
personnel, who treated defendant, would be able to testify as to
defendant's physical and mental condition when he was treated.
Specifically, (1) a paramedic told the investigating officer that
defendant appeared to be very intoxicated; (2) defendant acknowl-
edged to the officer that he had been drinking and the officer
noted the odor of alcohol in the ambulance and in defendant's
vehicle; (3) the victim stated she was struck twice by defen-
dant's vehicle when she was sitting at a red light; and (4) a
nurse gave the investigating officer a bottle of vodka when he
went to the hospital. Both the State and defense counsel admit-
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ted they were unable to find any cases dealing with a subpoena
for a defendant's entire medical record. The trial court indi-
cated that HIPAA allowed for disclosure of medical information
upon order of the court.
On February 29, 2008, the trial court issued a written
decision. In the decision, the court noted that the issue is
"whether or not a subpoena 'for all the defendant's medical
records' is unreasonable, oppressive[,] or overbroad pursuant to
People ex rel. Fisher v. Carey, 77 Ill. 2d 259, 270 (1979)." The
court noted a lack of Illinois case law regarding subpoenaing a
defendant's entire medical record but noted the Nohren case as
instructive. People v. Nohren, 283 Ill. App. 3d 753, 670 N.E.2d
1208 (1996). In Nohren, this court stated "[w]e cannot agree
that the subpoena here, which requested defendant's blood tests
and specified the time period October 7 through October 9, 1995,
was overbroad. The State did not request all of defendant's
medical records." (Emphasis added.) Nohren, 283 Ill. App. 3d at
763-64, 670 N.E.2d at 1215. The court determined that the quote
from Nohren suggested that a request for all of defendant's
medical records, even for just one day, would be considered
overbroad and denied the State's motion.
This appeal followed.
II. ANALYSIS
The State argues that the trial court erred in denying
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its request for a subpoena duces tecum. The State argues that
the court's reliance on Nohren was misplaced as the issue in
Nohren was whether a subpoena for a defendant's blood test that
specified a time period was overbroad and this court did not
address the issue posed in this case. Further, the State relies
on People v. Mitchell, 297 Ill. App. 3d 206, 209, 696 N.E.2d 849,
852 (1998), wherein the court found that a defendant's request
for a subpoena for police records limited to the day of defen-
dant's traffic stop was not overbroad as it did not overburden
the State and was not oppressive or unreasonable. Finally, the
State cites a recent Indiana case, State v. Eichhorst, 879 N.E.2d
1144, 1154 (Ind. App. 2008), that concluded the State's request
for a subpoena for all of a defendant's medical records for the
date she was treated for her injuries acquired in a traffic
accident wherein she may have been intoxicated was "sufficiently
limited in scope and specific in directive."
Defendant counters that Illinois statutes only allow
release of chemical tests. Section 8-802 of the Code of Civil
Procedure (Code) states that "[n]o physician or surgeon shall be
permitted to disclose any information he or she may have acquired
in attending any patient in a professional character, necessary
to enable him or her professionally to serve the patient." 735
ILCS 5/8-802 (West 2006). Defendant claims only one exception to
this general rule applies and it includes disclosure of chemical
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tests "in prosecutions where written results of blood[-]alcohol
tests are admissible pursuant to [s]ection 11-501.4 of the
Illinois Vehicle Code." 735 ILCS 5/8-802(9) (West 2006).
Section 11-501.4(b) establishes the foundational elements of
admitting chemical tests in a prosecution for a DUI. 625 ILCS
5/11-501.4(b) (West 2006). Section 11-501.4 also states the
following:
"The confidentiality provisions of law
pertaining to medical records and medical
treatment shall not be applicable with re-
gard to chemical tests performed upon an
individual's blood under the provisions of
this [s]ection in prosecutions as specified
in subsection (a) of this [s]ection." 625
ILCS 5/11-501.4(b) (West 2006).
Defendant also cites section 11-501.4-1 (625 ILCS 5/11-501.4-1
(West 2006)), which further delineates the method of disclosure
of results of chemical tests in DUI prosecutions, and argues that
this section does not authorize the release of the entire medical
record of the patient, only the results of chemical tests. De-
fendant argues these statutes prohibit disclosure of any other
medical record information outside the results of chemical tests.
Alternatively, defendant argues that even if release of
medical information other than written results of blood-alcohol
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tests is proper, the subject of the State's subpoena was overly
broad and would allow the State to embark on a "fishing expedi-
tion."
While section 8-802 prohibits disclosure of medical
records unless an exception applies, it is not true that only the
exception of section 8-802(9) applies to this case. Defendant
dismisses as not applicable the exception of section 8-802(4),
which creates an exception "in all actions brought by or against
the patient, his or her personal representative, a beneficiary
under a policy of insurance, or the executor or administrator of
his or her estate wherein the patient's physical or mental
condition is an issue." 735 ILCS 5/8-802(4) (West 2006). This
court has already recognized in Nohren that an exception identi-
cal to subsection (4), then referred to as subsection (4.1),
applied to the State's motion to view a defendant's blood tests,
reasoning that "a DUI is an 'action[] brought against the pa-
tient' in which the patient's physical or mental condition is an
element of the offense and therefore at issue." Nohren, 283 Ill.
App. 3d at 762, 670 N.E.2d at 1214, quoting 735 ILCS 5/8-802
(4.1), (9) (West Supp. 1995). Section 8-802(4), therefore,
allows release of medical information other than written results
of blood-alcohol test.
The only issue is whether the State's request for all
of defendant's medical records for the day he was treated for
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injuries acquired in the accident was overly broad. As both the
parties and the trial court determined, no Illinois case ad-
dresses such a request. In finding the request overbroad, the
trial court relies on dicta in Nohren opining that a request for
all of a defendant's medical records would be overbroad. The
hypothetical request in Nohren is broader, though, than the
request in this case as the request in this case is limited to
medical records only for the day of the accident. Clearly, the
State can request the results of chemical tests (735 ILCS 5/8-
802(9) (West 2006)), and few would disagree that a request for
all medical records is overbroad. This case, though, falls in
the middle.
An Indiana court found itself in a similar quandary
when a prosecutor in a DUI case subpoenaed "[a]ny and all medical
records (including test for blood[-]alcohol level and drug
screen) on Ali Eichhorst *** treated on or about April 15, 2006."
Eichhorst, 879 N.E.2d at 1154. The Indiana court concluded that
the prosecutor's request for medical records that related to the
date of the accident would "naturally contain the medical staff's
observations of Eichhorst, which could be relevant in determining
whether she was intoxicated at the time of the accident" and
found the subpoena "sufficiently limited in scope *** and direc-
tive." Eichhorst, 879 N.E.2d at 1154.
In this case, the State argued to the trial court that
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it had evidence that a nurse and physicians who treated defendant
on the day of the accident are potential witnesses and their
observations and opinions are relevant and not protected under
the patient-physician privilege.
We agree that the medical staff's observations of
defendant on the date of the accident are relevant in determining
whether defendant was intoxicated. The State had evidence that
medical staff may have observed defendant's state of intoxication
as a paramedic told an investigating officer that defendant
appeared intoxicated and a nurse gave an investigating officer a
bottle of vodka after defendant was admitted to the hospital.
We further note that the State argued to the trial
court that under the subpoena, the hospital would return the
medical records to the court in a sealed condition and the court
could "make any sort of in camera inspection if it was required."
In Mitchell, the court affirmed a defendant's subpoena for all of
the police records relating to defendant's arrest on the date of
the arrest and noted that "built-in safeguards for the review and
release of information under a subpoena will adequately protect
the State from unreasonable requests." Mitchell, 297 Ill. App.
3d at 209-10, 696 N.E.2d at 852. Release of defendant's medical
records for the date of his alleged DUI to the court is not
without safeguards and is not unreasonable.
Because access to defendant's medical records solely
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for the date of the accident is relevant, material, and not
privileged, the subpoena was sufficiently limited in scope and
should have been granted.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for further proceedings.
Reversed and remanded.
MYERSCOUGH, J., concurs.
APPLETON, P.J., dissents.
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PRESIDING JUSTICE APPLETON, dissenting:
I respectfully dissent from the majority's decision.
While I would agree that a subpoena properly would lie for the
production of the mere fact of treatment and the identity of
treating professionals, I believe the subpoena here was overbroa-
d. The information sought should be received by testimony from
the persons who treated defendant or with whom he otherwise had
contact at the hospital. The nature of the information sought,
i.e., defendant's state of intoxication, would not be privileged
medical information subject to HIPAA. What was sought by the
State would entitle it to know private medical information
irrelevant to the charges lodged against defendant.
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