dissenting.
Respectfully, I must dissent. The majority has focused on an isolated statement plaintiff Mary Reda made in response to defense counsel’s question during her discovery deposition regarding any changes she noticed in her husband. She answered truthfully that yes, he appeared to be more emotional, more frustrated and meaner than he was before the surgery. Now defendants have seized upon that and argue that Emilio’s mental health condition has been raised for purposes of the Act. However, a careful reading of the pleadings makes it clear that plaintiffs have never made a claim for Emilio Reda’s psychological trauma, and no amount of interpretation or extrapolation from discovery depositions can make it so.
The Act was carefully drawn to maintain the confidentiality of mental health records except in cases where the plaintiff has introduced his mental health as an issue. Sassali v. Rockford Memorial Hospital, 296 Ill. App. 3d 80, 693 N.E.2d 1287 (1998). The privilege exists unless “mental condition” is specifically made a part of either the claim or defense and is made so by the pleadings. Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405, 219 N.E.2d 165 (1966).
The privilege is too important to be brushed aside when the mental condition of the plaintiff may be only peripherally involved. Tylitzki v. Triple X Service, Inc., 126 Ill. App. 2d 144, 261 N.E.2d 533 (1970). A recipient of mental health services waives the confidentiality of his records only if he affirmatively places his own mental health condition at issue. Sassali, 296 Ill. App. 3d at 83. When patients receive treatment from a mental health professional, they have a right to expect that in most circumstances their records will be kept in confidence. That is the promise made by the Act. See Mandziara v. Canulli, 299 Ill. App. 3d 593, 701 N.E.2d 127 (1998).
Neither plaintiffs’ complaint nor defendants’ defense has raised Emilio Reda’s mental condition. I have carefully read the pleadings, and nowhere am I able to locate the issue of Emilio’s mental condition. A neurological injury is not synonymous with psychological damage as the majority would suggest. Nor does neurological injury directly implicate psychological damage. I believe that the majority’s finding that plaintiffs mental condition was introduced in this case will set in motion an erosion of the protection afforded mental health care recipients and the confidentiality to which the Act says they are entitled. I am afraid that any passing reference to a person’s mental condition following an injury or trauma will immediately give rise to disclosure under the Act. Opposing counsel need only ask the question in order to trigger the exception to confidentiality. I do not believe that is what is contemplated under the Act or case law.
Therefore, I would find that the circuit court erred in holding attorney Capra in contempt of court and would vacate the order.