2017 IL App (3d) 170087
Opinion filed December 11, 2017
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2017
SCARLETT PALM, ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Plaintiff-Appellee, ) Marshall County, Illinois.
)
v. )
) Appeal No. 3-17-0087
RUBEN HOLOCKER, ) Circuit No. 16-L-5
)
Defendant )
)
(Karl Bayer, )
) Honorable Thomas A. Keith,
Contemnor-Appellant). ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices O’Brien and Wright concurred with the judgment and opinion.
OPINION
¶1 Scarlett Palm filed a personal injury lawsuit against Ruben Holocker on June 22, 2016.
Contemnor, Karl Bayer, represented Holocker. Contemnor invited civil contempt to challenge
the circuit court’s discovery order that compelled Holocker to answer written discovery. He
argues that Holocker’s statutory physician-patient privilege (735 ILCS 5/8-802 (West 2016))
protects his private medical information from discovery unless he affirmatively places his
physical or mental health at issue. Palm counters that the physician-patient privilege does not
apply in civil cases where the defendant’s physical or mental health is relevant to the case; the
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statute does not require the defendant-patient to affirmatively place his or her health at issue. We
agree with contemnor. We reverse the circuit court’s discovery order and vacate its contempt
order.
¶2 BACKGROUND
¶3 Palm’s complaint alleged that on October 18, 2014, Holocker struck Palm, a pedestrian,
with his vehicle at a crosswalk in Lacon. Palm alleged that Holocker failed to keep a proper
lookout, failed to stop at a stop sign, and failed to yield the right-of-way to a pedestrian.
¶4 Holocker’s answer admitted that his vehicle struck Palm; however, he denied liability. He
filed an affirmative defense, which claimed that Palm improperly crossed the street, failed to
keep a proper lookout, and was under the influence of drugs or alcohol when she crossed the
street. Holocker further alleged that Palm’s negligence rendered her 50% or more at fault for her
injuries. Palm denied Holocker’s allegations.
¶5 During initial discovery, Palm sent Holocker the motor vehicle interrogatories provided
in the appendix to Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007). Interrogatory No. 20 of
the Motor Vehicle Interrogatories to Defendants asks:
“20. Do you have any medical and/or physical condition
which required a physician’s report and/or letter of approval in
order to drive? If so, state the nature of the medical and/or physical
condition, the physician or other health care professional who
issued the letter and/or report, and the names and addresses of any
physician or other health care professional who treated you for this
condition prior to the occurrence.” Ill. S. Ct. R. 213, Appendix.
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¶6 In response, Holocker disclosed that he needed a letter of approval for “diabetic reasons.”
He also disclosed the physician who writes his letters, Dr. Nau, and admitted the Secretary of
State once suspended his license when Dr. Nau “failed to sign [a] medical authorization.”
¶7 Holocker objected to the two ensuing interrogatories. They requested Holocker to:
“21. State the name and address of any physician,
ophthalmologist, optician or other health care professional who
performed any eye examination of you within the last five years
and the dates of each such examination.
22. State the name and address of any physician or other
health care professional who examined and/or treated you within
the last 10 years and the reason for such examination and/or
treatment.” Ill. S. Ct. R. 213, Appendix.
¶8 Holocker’s objections claimed that these interrogatories “violate[ ] HIPAA, doctor-
patient privilege, and the Defendant has not placed his medical condition at issue in this matter.”
¶9 Palm filed a motion to compel Holocker’s responses. At the hearing on September 20,
2016, Palm’s counsel argued that Holocker’s abilities to see and drive “are at issue in this case
because he drove his vehicle into a pedestrian.” Contemnor argued that Holocker’s physician-
patient privilege protects his private health information, regardless of its relevance, unless he
affirmatively places his health at issue. Alternatively, contemnor stipulated that Holocker
possessed a valid license when the collision occurred; his medical condition was irrelevant
because the Secretary of State legally permitted him to drive. The court granted Palm’s motion
and ordered Holocker to answer the interrogatories. Over contemnor’s objection, the court also
entered a Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C.
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§ 1320d et seq. (2012)) order that applied to both Palm and Holocker. Palm’s counsel sent Dr.
Nau and the Secretary of State subpoenas requesting Holocker’s medical records pursuant to the
HIPAA order.
¶ 10 Despite the court’s order, Holocker refused to respond to Palm’s interrogatories.
Contemnor informed Palm’s counsel that he was “simply protecting [his client’s] important
natural right to privacy.” Palm filed a motion requesting sanctions. She asked the court to strike
Holocker’s denial of liability, enter a default judgment, and award attorney fees.
¶ 11 At the hearing on January 4, 2017, contemnor again argued that Holocker’s privilege
protects his medical information regardless of its relevance to the case. Alternatively, he argued
that fact issues, such as whether Holocker looked in Palm’s direction before the collision,
precluded any determination as to the relevance of Holocker’s vision or other medical
conditions. Palm again argued that Holocker’s health and vision were relevant to the case. Her
counsel cited Marshall County public records showing Holocker had “seven or eight” prior
collisions and received “a dozen traffic citations *** in the last 20 years.”
¶ 12 The court found that Palm had “legitimate reasonable cause to believe that there could be
some sight problems here that could have been related to this accident, and [she’s] got a right to
look for that.” The court held Holocker’s counsel in civil contempt. The contempt order imposed
a $5-per-day fine until contemnor purged his contempt by submitting Holocker’s interrogatory
responses to Palm’s counsel. This appeal ensued.
¶ 13 ANALYSIS
¶ 14 Contemnor appeals the court’s civil contempt order pursuant Illinois Supreme Court Rule
304(b)(5) (eff. Mar. 8, 2016). Rule 304(b)(5) makes contempt orders appealable without a
special finding. Although discovery orders are not ordinarily appealable, litigants may test the
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correctness of a discovery order through contempt proceedings. Norskog v. Pfiel, 197 Ill. 2d 60,
69 (2001). In such cases, “[r]eview of the contempt finding necessarily requires review of the
order upon which it is based.” Id. (citing Waste Management, Inc. v. International Surplus Lines
Insurance Co., 144 Ill. 2d 178, 189 (1991)).
¶ 15 The discovery and contempt orders at issue address the two interrogatories to which
Holocker objected. However, neither party’s brief addressed whether the interrogatories seek
privileged information. Both parties briefed and argued whether the privilege applies at all in this
case, not whether the privilege specifically applies to the two interrogatories. Palm intended to
obtain Holocker’s medical records from medical providers he disclosed in his responses. If the
privilege applies, the interrogatories are pointless; Palm may not obtain Holocker’s medical
records regardless of who treated him or when he received treatment.
¶ 16 We are dutifully cognizant of our supreme court’s expectation that appellate courts
observe judicial restraint. See People v. White, 2011 IL 109689, ¶ 153. However, if we limit our
review to the two interrogatories in this case, our decision would resolve nothing. The issues
would not change, and the parties would simply raise the same arguments in a second appeal
after contemnor sought a protective order or other injunctive relief to protect Holocker’s medical
records from Palm’s subpoenas (see Ill. S. Ct. R. 307(a)(1) (eff. Jan. 1, 2016); Skolnick v.
Altheimer & Gray, 191 Ill. 2d 214 (2000); Bush v. Catholic Diocese of Peoria, 351 Ill. App. 3d
588 (2004)). In the interest of efficiently administering justice, we address the ultimate dispute
raised in the parties’ briefs. We hold that under section 8-802(4), defendants maintain their
physician-patient privilege until they waive it by affirmatively placing their health at issue.
¶ 17 I. Discovery Order
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¶ 18 The parties dispute whether the statutory physician-patient privilege (735 ILCS 5/8-802
(West 2016)) applies to this case. Normally, discovery orders are not reversed absent a manifest
abuse of discretion; however, “the applicability of a statutory evidentiary privilege, and any
exceptions thereto, are matters of law subject to de novo review.” Reda v. Advocate Health Care,
199 Ill. 2d 47, 54 (2002). Contemnor waived Holocker’s HIPAA objection by failing to address
the issue in his brief. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016).
¶ 19 The physician-patient privilege protects patients’ medical records from disclosure
without their consent. 735 ILCS 5/8-802 (West 2016). Patients’ medical records contain
“information regarding diagnosis, examinations, tests, or treatment rendered.” Pritchard v.
SwedishAmerican Hospital, 191 Ill. App. 3d 388, 403 (1989). Medical care providers acquire and
record this information because it is necessary to enable the provider to serve or treat the patient.
See id. at 404. Thus, patients’ medical records are privileged unless a statutory exception applies.
See 735 ILCS 5/8-802 (West 2016).
¶ 20 The privilege is subject to 14 enumerated exceptions. The exception at issue, section 8
802(4), states the privilege is inapplicable “in all actions brought by or against the patient ***
wherein the patient’s physical or mental condition is an issue.” 735 ILCS 5/8-802(4) (West
2016). Palm contends that “an issue” means “relevant to the case.” Further, Palm argues that we
must construe the privilege as narrowly as possible because it did not exist at common law.
Contemnor counters that a plaintiff cannot force a defendant to disclose privileged medical
information, regardless of its relevance, simply by pleading allegations that implicate the
defendant’s health.
¶ 21 Our supreme court has held that the privilege’s purposes are to “encourage free
disclosure between a doctor and a patient and to protect the patient from embarrassment and
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invasion of privacy that disclosure would entail.” People ex rel. Department of Professional
Regulation v. Manos, 202 Ill. 2d 563, 575 (2002). The privilege illustrates a “legislative
balancing between relationships that society feels should be fostered through the shield of
confidentiality and the interests served by disclosure of the information.” Id. at 575-76.
¶ 22 When we interpret statutes, even “ ‘statutes in derogation of the common law,’ ” we must
observe the statute’s legislative purpose and construe it “in such a way as to avoid ‘impractical or
absurd results.’ ” Nowak v. City of Country Club Hills, 2011 IL 111838, ¶¶ 19, 21. The
privilege’s purposes indicate that “an issue” in section 8-802(4) does not mean “relevant.” If it
did, the privilege would not be a “legislative balancing” between confidentiality and “the
interests served by disclosure of information.” Disclosing irrelevant information serves no
interest. If the legislature meant section 8-802(4) to except all relevant medical information from
the privilege’s scope, it would have simply stated the privilege does not apply in any litigation—
irrelevant evidence is neither subject to disclosure nor admissible regardless of its subject matter.
See Ill. R. Evid. 701 (eff. Jan. 1, 2011); Ill. S. Ct. R. 201(b) (eff. July 30, 2014); R. 412 (eff. Mar.
1, 2001)
¶ 23 Similar to section 8-802(4)’s requirement that the defendant’s physical or mental
condition be “an issue” for the exception to apply (735 ILCS 5/8-802(4) (West 2016)), Illinois
Supreme Court Rule 215(d)(1) (eff. Mar. 28, 2011) requires that a party’s “mental or physical
condition” be “placed in issue” before a court may order a physical or mental examination. Rule
215’s latest committee comments state: “Paragraph (d) provides that a trial court may order
impartial medical examinations only where the parties have presented conflicting medical
testimony, reports or other such documentation which places a party’s mental or physical
condition ‘in issue’ ***. Mere allegations are insufficient to place a party’s mental or physical
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condition ‘in issue.’ ” (Emphasis added.) Ill. S. Ct. R. 215(d), Committee Comments (adopted
Mar. 28, 2011). This language implies that “in issue” does not mean “relevant.”
¶ 24 We agree with contemnor that section 8-802(4) applies only where a defendant
affirmatively presents evidence that places his or her health at issue. Neither the nature of a
plaintiff’s cause of action nor factual allegations in a plaintiff’s complaint waive a defendant’s
physician-patient privilege. See Kraima v. Ausman, 365 Ill. App. 3d 530, 536 (2006) (“In order
for [section 8-802(4)] to apply, the patient *** not plaintiff, must have affirmatively placed his
physical condition in issue.”); Pritchard, 191 Ill. App. 3d at 405. A plaintiff cannot waive
someone else’s privilege by merely filing a lawsuit or making certain allegations.
¶ 25 Under section 8-802(4), defendants affirmatively place their health at issue when they
utilize a physical or mental condition to defend the case. Two examples are where a defendant
cites a health condition to dispute a plaintiff’s factual allegations (Doe v. Weinzweig, 2015 IL
App (1st) 133424-B) or where a defendant files an affirmative defense that claims a sudden,
unforeseeable health condition caused the allegedly tortious conduct (Burns v. Grezeka, 155 Ill.
App. 3d 294 (1987)). In either example, the plaintiff has the right to test the claim’s merit by
obtaining the defendant’s medical records, just as defendants have the right to contest plaintiffs’
personal injury claims by obtaining their medical records.
¶ 26 Absent Holocker affirmatively placing his health at issue, we see no compelling reason to
vitiate his privilege. His medical records have no bearing on his liability. Holocker’s driving, not
the reason for his driving, is at issue; he either drove negligently or he did not. If Holocker
possessed a valid license and operated his vehicle as a reasonably prudent person would, then he
is not liable for Palm’s injuries regardless of his health or vision. If Holocker drove negligently
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and proximately caused Palm’s injuries, then he is liable. He has not asserted a defense or any
other affirmative matter that attributes his driving to a health condition.
¶ 27 In arguing that Holocker’s health and vision is relevant in this case, Palm points to his
driving record, which indicates he participated in several prior accidents and received prior
traffic citations. Holocker’s driving record, if admissible, stands on its own. The fact that he
caused prior accidents or received citations has no bearing on his health or vision in this case.
Palm’s focus on Holocker’s health or vision is a red herring that averts attention from the
liability issue—whether he operated his vehicle negligently when this collision occurred.
¶ 28 Along that same line, Palm’s interpretation of section 8-802(4) permits plaintiffs to
leverage settlement based on the contents of a defendant’s medical records rather than his or her
potential liability. If plaintiffs could waive defendants’ privilege simply by filing a lawsuit or
making certain allegations, some defendants might feel compelled to settle to avoid disclosing
certain health conditions, procedures, or treatments that have nothing to do with their liability.
We do not believe the legislature intended section 8-802(4) to permit such unwarranted invasions
of privacy. Under Palm’s interpretation, we cannot imagine any automobile accident case in
which a plaintiff could not argue that a defendant’s negligent driving might be related to a vision
or other health related problem, thereby requiring disclosure of defendant’s medical records.
¶ 29 The parties agree that Holocker has not affirmatively placed his health at issue in this
case. Therefore, section 8-802(4)’s exception does not apply in this case. Palm has not argued
that Holocker’s interrogatory responses are relevant standing alone. Because we hold that
Holocker’s privilege protects his medical records, his responses are not likely to lead to
discoverable information. We reverse the circuit court’s discovery order. On remand, the court
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shall order Palm’s counsel to promptly relinquish possession of Holocker’s medical records from
all sources in a manner the court deems sufficient to protect his privacy.
¶ 30 II. Civil Contempt Order
¶ 31 Inviting civil contempt is a proper means to test the validity of a court’s discovery order
(Norskog, 197 Ill. 2d at 69); therefore, it is appropriate to vacate the contempt order on appeal if
the contemnor’s challenge is a “good-faith effort to secure an interpretation of an issue without
direct precedent.” Jiotis v. Burr Ridge Park District, 2014 IL App (2d) 121293, ¶ 57. Contemnor
invited contempt in good faith. We vacate the circuit court’s contempt order.
¶ 32 CONCLUSION
¶ 33 For the foregoing reasons, we reverse the judgment of the circuit court of Marshall
County, vacate the contempt sanction against contemnor, and remand the case for further
proceedings consistent with this opinion.
¶ 34 Reversed in part and vacated in part; cause remanded.
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