dissenting:
I have several concerns which require my dissent. Initially it should be noted that plaintiff filed a suit containing two counts. He is appealing only the dismissal of the first count. The first count alleged a doctor-patient relationship to establish an element under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987, ch. 91½, pars. 801 through 817). The count did not allege any breach of the standard of care required of a physician; nor did it allege any act of patient care by defendant directed to plaintiff, nor is either required under the Act. Defendant filed a section 2 — 619 motion and argued, without any additional allegations of fact, that as a matter of law section 13 — 212 was applicable and count I should be dismissed. Irreconcilably, the trial court found that “Plaintiff does not seek recovery for incorrect or negligent treatment; Plaintiff’s cause of action is based on violations of Defendant’s duties under the Act,” and then, citing a dictionary, determined that “otherwise” makes section 13 — 212 applicable to this case. The majority has not reconciled how something that is found not to be malpractice is covered by the malpractice statute of limitations. See Owens v. Manor Health Care Corp. (1987), 159 Ill. App. 3d 684; Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649.
The majority opinion cites Horak v. Biris (1985), 130 Ill. App. 3d 140, to extrapolate an affirmance. The Horak case is factually distinguishable for several reasons. First, it was based upon allegations of malpractice as designated by plaintiff-spouse. Second, the act of malpractice was alleged as a violation of patient care, not a violation of the Act. Third, plaintiff alleged that defendant was treating plaintiff, albeit through plaintiff’s wife, when the alleged violation of patient care took place. None of those allegations are contained in the instant first count.
The majority states that “[t]he present complaint alleges that both plaintiff and his wife were receiving treatment from defendant for marital problems. Therefore, plaintiff’s injury did arise out of patient care in that *** plaintiff’s injury occurred during his wife’s phase of the treatment.” (Emphasis added.) (186 Ill. App. 3d at 178.) Plaintiff never alleged that the alleged disclosure was made during patient care of either him or his wife. He only alleged the existence of a doctor-patient relationship. The majority has taken a quantum leap to conclude, as a matter of law, that the disclosure was patient care, especially patient care of plaintiff.
Plaintiff did not allege an act of patient care directed to him that caused his injuries. Plaintiff alleged a disclosure of a confidence to a third party outside of plaintiff’s presence. Plaintiff also alleged the information was given in confidence and defendant was specifically admonished not to disclose such information to the particular third party. Having reviewed the record, there is no pleading or affidavit which could give any court the ability to conclude that the disclosure occurred during patient care. Patient care is traditionally the act or nonact which causes the injury. It is not the same as the doctor-patient relationship. (Lyon, 156 Ill. App. 3d at 653.) In this case, there is an allegation of the latter; there is no allegation whatsoever by any party as to the former.
I find it difficult to conceive a factual scenario where the disclosure of a confidential statement by a physician to a third party outside the presence of a plaintiff would constitute patient care of a plaintiff. In any event, patient care still is an element of proof and an issue of fact. In this particular case, the trier of fact may ultimately decide in favor of defendant. However, such a rationale does not suffice in affirming the trial court’s judgment on such a scanty record. I therefore respectfully dissent.