dissenting:
I respectfully dissent. I agree with my colleagues that a court is not a covered entity for HIPAA purposes, that HIPAA does not prevent the unsealing of the court order in this case, and that the trial court erred as a matter of law in ruling that it did. I cannot agree, however, that in addition to its reliance on HIPAA, the circuit court “exercised its discretion in finding that ‘there is good reason to seal the names of the patients’ ” (372 Ill. App. 3d at 1079) or that the court “found a compelling interest why public access to the names of the nonparty patients should be restricted, in the form of a broad public policy in favor of a medical patient’s right to privacy” (372 Ill. App. 3d at 1081-82). The quotation lifted by the majority from the circuit court’s order — “there is good reason to seal the names of the patients” — is followed in the order only by a discussion of HIPAA. In fact, the order never mentions public policy or any reason other than HIPAA to keep the order sealed. Likewise, during the November 18, 2005, hearing that preceded the court’s order, Judge Brown engaged the parties in an extensive discussion of HIPAA and its applicability to the case at bar, and he even pronounced from the bench, in language mirrored almost precisely in the written order, that he found “that there is a good reason to seal the names of these patients to comply with these— with these HIPA [sic] rules.” It is clear from the record that the court’s order was based entirely upon the court’s misapprehension of the applicability of HIPAA and was in no part based upon public policy. Accordingly, I cannot agree with the majority that the circuit court based its decision only “partially” (372 Ill. App. 3d at 1079) on HIPAA, nor can I subscribe to the fiction that in affirming on the basis of public policy, this court is reviewing an exercise of the circuit court’s discretion.
Furthermore, even if the circuit court had advanced public policy as an alternative ground for keeping the names of the patients under seal, I would still not agree that the circuit court did not abuse its discretion in so doing, because I do not believe that the parties who seek to keep the order sealed — the hospital and Dr. Coy — have overcome the strong presumption in favor of public access to court documents, records, and orders by establishing both that there is a compelling interest why access should be restricted and that the resulting restriction furthering that interest is tailored as narrowly as possible. See Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 231-32 (2000).
As explained in the majority disposition and elaborated upon below, the posture of this case is essentially as follows. Presumably pursuant to settlement negotiations, the hospital and Dr. Coy worked out a resolution of their dispute. Counsel for Dr. Coy apparently memorialized that resolution in a settlement agreement that included within it the names of the seven nonparty patients to whom Dr. Coy had allegedly provided substandard care but did not reference the patients’ medical records, conditions, or diagnoses. Counsel for Dr. Coy and counsel for the hospital, for reasons unknown, chose to file with the court the settlement agreement itself, rather than a pleading seeking a dismissal and referencing the settlement agreement, and they requested that the agreement be filed under seal. Without a hearing, the court complied. During the June 21, 2005, hearing on the petition to intervene filed by the Nashville News and The Southern Illinoisan, counsel for the petitioners repeatedly questioned why the order needed to be sealed and repeatedly wondered why sensitive information would be included in the agreed order, rather than in separate documents referenced by the order but not filed with the court. Neither counsel for the plaintiff nor counsel for the hospital provided an explanation for the inclusion of the so-called sensitive information (i.e., the names of the patients) they sought to protect. Likewise, when, on August 15, 2005, Dr. Coy moved to amend the sealed order to prohibit the disclosure of the nonparty patient names contained therein but to unseal the remainder of the agreement, Dr. Coy still did not indicate why nonparty patient names had been included in the order in the first place. Accordingly, despite multiple opportunities throughout this case to do so, neither the hospital nor Dr. Coy has been able to explain adequately why the agreement itself, containing the names of Dr. Coy’s alleged victims, needed to be filed with the court. At oral argument before this court, counsel for the hospital conceded that it was not necessary to include the names in the agreed order, indicated that had it been his decision to make, the names would not have been included, and suggested that it was his understanding that the names were included to aid “enforcement of the order.” He did not explain how including the names in the actual order, rather than in a document referenced by the order, would advance that enforcement, if enforcement were to become necessary.
Accordingly, once the circuit court’s errant HIPAA analysis is discarded, the pivotal question for this court becomes whether the intentional, unexplained, and unnecessary inclusion in a court filing of the names of — but not any medical information about — seven nonparty patients establishes a “compelling interest” sufficient to overcome the strong presumption in favor of open public access to court files and therefore to justify sealing that filing from public view.
My colleagues believe that such a compelling interest exists because “Illinois has a strong and broad public policy in favor of protecting the privacy rights of individuals with respect to their medical information” (372 Ill. App. 3d at 1082), and they cite a number of statutes and cases supporting that position. I agree that, with respect to “medical information,” as a general rule such a public policy exists and is supported by the statutes and cases cited. The problem for the majority is that in this case no “medical information” is involved: only the names of the patients — not their medical records, their conditions, or their diagnoses.
The majority holds that although the mere name of a patient is not protected by the physician-patient privilege codified at section 8 — 802 of the Code of Civil Procedure (735 ILCS 5/8 — 802 (West 2004)), “a patient may still have an expectation that the fact that he or she visited with or was treated by a physician will remain private.” 372 Ill. App. 3d at 1083. As a result of this expectation, according to the majority, the mere name of a patient becomes “medical information” subject to protection. I find the expectation of privacy pronounced by the majority to be a highly speculative one, unsupported by existing public policy, case law, or even the facts of this case. Indeed, the majority cites no cases wherein this purported expectation has even been found to exist, let alone found to convert the mere name of a patient into “medical information” representing a “compelling interest” that outweighs the strong presumption in favor of open public access to court files that is the law in Illinois. Furthermore, to buttress its proposition that this judicially crafted expectation of privacy is sufficient to trump our presumptively open court system — and that accordingly the names of the nonparty patients in this case should remain sealed — the majority cites the example of patients who have visited abortionists, oncologists, HIV/AIDS specialists, or mental health professionals. These examples are in no way relevant to the case at bar, which involves the treatment of patients at a publicly owned county hospital that treats a wide variety of patients suffering from a wide variety of ailments, major and minor.
In fact, long-standing precedent in this state holds, very clearly, that the disclosure of a patient’s name does not violate the physician-patient privilege. See, e.g., House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437, 445 (1990); Davis v. Hinde, 141 Ill. App. 3d 664, 666 (1986); Geisberger v. Willuhn, 72 Ill. App. 3d 435, 438 (1979). That is because the name of a patient generally has no relation to the ailment or treatment received and therefore is not privileged information. House, 206 Ill. App. 3d at 445; Geisberger, 72 Ill. App. 3d at 437. That is certainly true in the case at bar, where the order contains only the names of patients treated at a publicly owned county hospital and does not reference the patients’ medical records, conditions, or diagnoses or provide any other information that could lead one to ascertain those conditions or diagnoses.
Accordingly, I do not believe the expectation of privacy created by the majority establishes a “compelling interest” sufficient to overcome our state’s strong presumption in favor of open public access to court files. As the statutes cited by the majority demonstrate, the General Assembly has had ample opportunity to shape the law of this state to reflect the state’s public policy with regard to medical information. To date, the General Assembly has not even recognized the expectation of privacy crafted by the majority, let alone elevated it to a status sufficient to overcome the presumption of open public access to court files, and I believe it is unwise and improper for this court to take it upon itself to do so.
It is not only possible, but indeed common practice, to protect the names of nonparties in cases such as this without sacrificing the openness of our judicial system. As Justice Steigmann observed more than a decade ago in his special concurrence in In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1076 (1992), the way to avoid this situation with regard to a settlement agreement is simple: the parties to a case “are free to make whatever contractual arrangements they wish as part of their settlement agreement and keep it to themselves by simply not making it part of the court record” (emphasis in original). As explained above, should the parties fail to do so, I do not believe it is proper for this court to rectify that failure by sealing otherwise public records, particularly where other remedies are available to nonparties aggrieved by that failure. As the majority in In re Marriage of Johnson held, “[T]he parties’ desire and agreement that the court records were to be sealed falls far short of outweighing the public’s right of access to the files.” In re Marriage of Johnson, 232 Ill. App. 3d at 1075. That is because courts cannot honor the request of parties to seal records simply because the parties desire to do so “without seriously undermining the tradition of an open judicial system.” In re Marriage of Johnson, 232 Ill. App. 3d at 1075. Likewise, the mere fact that a person “may suffer embarrassment or damage to his reputation” as a result of information contained within a document filed with the court “does not justify sealing the court file.” Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 234 (2000).
Although not addressed by the majority, the hospital and Dr. Coy advance in their brief on appeal alternative grounds to affirm the errant decision of the circuit court. The hospital and Dr. Coy do not directly analogize any of the statutes they cite, or even their broad public policy arguments, to the actual facts of this case, which, as detailed above, involve the intentional, unexplained, and unnecessary inclusion in a court filing that is presumptively public of the names of — but not any medical information about — seven nonparty patients. Accordingly, although the statutes referenced by the hospital and Dr. Coy and the policy arguments derived therefrom involve privacy with regard to medical records in general, the strained arguments the hospital and Dr. Coy make fail to connect these statutes to this case in any persuasive manner.
For example, the hospital and Dr. Coy cite both the Medical Patient Rights Act (410 ILCS 50/0.01 et seq. (West 2004)) and the Hospital Licensing Act (210 ILCS 85/1 et seq. (West 2004)) as authorities supporting a generalized public policy argument that the names of the patients should remain sealed. However, by its own language, section 3(d) of the Medical Patient Rights Act is limited to the disclosure of medical information by a “physician, health care provider, health services corporation[,] and insurance company.” 410 ILCS 50/3(d) (West 2004). Likewise, section 6.17 of the Hospital Licensing Act pertains only to the release of medical information by the hospital’s medical staff and its agents and employees. 210 ILCS 85/6.17 (West 2004). Moreover, although the hospital and Dr. Coy are correct in asserting that patient records are exempt from requests under the Freedom of Information Act (5 ILCS 140/7(l)(b)(i) (West 2004)), that fact is irrelevant to the present case. In sum, the situations contemplated by these statutes are so divorced from the facts of the present case that the policy arguments the hospital and Dr. Coy attempt to glean from these statutes and affix to the present case are unconvincing.
Equally unconvincing is the contention that under the medical studies statute (735 ILCS 5/8 — 2101 et seq. (West 2004)), the names of the patients must remain sealed. “The purpose of the [medical studies statute] is to advance the quality of health care by ensuring that members of the medical profession effectively engage in a peer-review process.” Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d 741, 746 (2003). The medical studies statute protects against “disclosure of the mechanisms of the peer-review process, including information gathering and deliberation leading to the ultimate decision rendered by a hospital peer-review committee.” (Emphasis added.) Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 402 (1998). Accordingly, documents generated specifically for the use of a peer-review committee receive protection under the medical studies statute. Chicago Trust Co., 298 Ill. App. 3d at 402. Significantly, the medical studies statute is found in the “Evidence” article of the Code of Civil Procedure and is intended to govern the discoverability and admissibility of information in pending litigation. 735 ILCS 5/8 — 2102 (West 2004). The burden of establishing a discovery privilege under the medical studies statute is on the party seeking to invoke it. Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d 741, 746 (2003). No privilege exists with regard to information or documents that might have been relied upon in the peer-review process but were generated prior to the process. Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 403 (1998).
Consequently, there are several problems with the arguments advanced by the hospital and Dr. Coy under the medical studies statute. First, as noted above, the medical studies statute is found in the “Evidence” article of the Code of Civil Procedure and is intended to govern the discoverability and admissibility of information in pending litigation; no section of the medical studies statute even comes close to addressing a scenario such as that in the present case where the issue is the intentional, unexplained, and unnecessary inclusion in a court filing that is presumptively public of the names of — but not any medical information about — seven nonparty patients. Second, as noted above, the medical studies statute protects against the disclosure of the mechanisms of the peer-review process, including information gathering and deliberation leading to the ultimate decision rendered by a hospital peer-review committee (see Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 402 (1998)), and it does not protect against information or documents that might have been relied upon in the peer-review process but were generated prior to the process. Chicago Trust Co., 298 Ill. App. 3d at 403. Accordingly, even if the medical studies statute could somehow be interpreted to apply to the factual situation in this case, the medical studies statute would provide no authority for withholding the names of the nonparty patients, because those names have nothing to do with the mechanisms of the peer-review process and clearly were generated prior to the process. Third, although the hospital and Dr. Coy posit that unsealing the court order “will destroy individuals’ right to, and expectation of, privacy related to medical treatment” and “will make all patients reticent to share personal information with their doctors for fear their names would end up in the morning paper,” I cannot agree. Given that in this case it was counsel who put the patients in the position of having their names divulged, not anyone in the medical community itself, this policy argument is unpersuasive. I simply do not believe the filing of the patients’ names in a court document in this case will “chill” the peer-review process in general, because the facts of this case are, hopefully, unlikely to repeat themselves. The hospital and Dr. Coy have not met their burden of establishing that a privilege exists in this case under the medical studies statute, and I believe it would be unwise and improper for this court to create that privilege under the medical studies statute on the basis of the public policy arguments advanced by the hospital and Dr. Coy.
The majority’s newly minted, judicially crafted public policy holding to the contrary notwithstanding, the hospital and Dr. Coy have failed to demonstrate a compelling interest justifying the trial court’s decision to keep its order sealed. Accordingly, the hospital and Dr. Coy have failed to overcome the strong presumption in favor of public access to court documents, records, and orders. For the foregoing reasons, I would reverse the circuit court’s February 21, 2006, order and remand with directions to unseal the entire February 18, 2005, order. Because my colleagues choose to do otherwise, I respectfully dissent.