specially concurring:
In the interest of judicial restraint, I must specially concur. It is axiomatic that a reviewing court should not consider questions or contentions which are not essential to the determination or final disposition of the cause before it, nor should a reviewing court consider a question or contention where the result will be the same no matter how such question or contention is decided. (City of Chicago v. Cohen (1977), 49 Ill. App. 3d 342, 344, 364 N.E.2d 335, 337.) Yet the majority does exactly that.
The only issue before this court on appeal is whether the trial court erred in adjudging appellant, John C. Ryan, guilty of contempt for taking an ex parte statement from a nurse who treated plaintiff. In so ruling, the trial court held that the physician/patient privilege includes within its purview a nurse/patient privilege which is protected from ex parte discovery in a medical malpractice case under Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952.
The majority properly holds that the finding of contempt was in error and must be vacated because the actions taken by appellant which the trial court found to be contemptuous occurred prior to the decision in Petrillo. Thus, there was no case law prohibiting ex parte communications between an attorney and a party’s treating physician. Furthermore, there was no statutory or case law recognizing a nurse/ patient privilege, nor was there any case law construing the physician/patient privilege as including a nurse/patient privilege. Thus, at the time appellant took Nurse MacKenzie’s statement, he was not acting in contravention of any statute, case law, supreme court rule or order of court. That the trial court thought appellant acted improperly in taking Nurse MacKenzie’s statement ex parte does, not lead to a finding of contempt unless the record also reflects that appellant acted with intent to embarrass, hinder or obstruct the trial court in its administration of justice. (See People v. Wolf (1987), 162 Ill. App. 3d 57, 514 N.E.2d 1218.) The majority properly found that this element was missing from the instant case. That is all that is necessary for the disposition of this case.
However, the majority goes far beyond what was necessary to decide this case. The majority takes this relatively simple case, involving no complex or novel issues of law, and characterizes it as one involving “the integrity of the entire discovery process in the State of Illinois, the applicability of the discovery rules as rules of procedure and not mere advisory suggestions for conduct in the development of a cause of action prior to trial, and the ability of the judiciary to make these rules of discovery practical and effective in the context of intensely adversarial litigation.” (198 Ill. App. 3d at 333.) The majority then goes on to adopt the ruling in Petrillo and, worse yet, to extend the decision in Petrillo to include ex parte communications with nurses as well as doctors. In fact, the majority extends Petrillo to any “health professional other than a physician who, in a professional capacity, has assisted a physician in treatment of a plaintiff.” (198 Ill. App. 3d at 338.) It is obvious that this holding was not necessary to the decision of this case and does not affect the decision herein.
If an opinion on a question of law cannot affect the result as to the parties or controversy in the case before it, a court should not resolve the question merely for the sake of setting a precedent to govern potential future cases. (Hall v. Illinois Property Tax Appeal Board (1981), 98 Ill. App. 3d 824, 828, 424 N.E.2d 375, 379.) Moreover, a court may not speak authoritatively upon questions not involved in the litigation, and expressions of opinions upon extraneous matters necessarily lack binding force. Superior Coal Co. v. O’Brien (1943), 383 Ill. 394, 406, 50 N.E.2d 453, 459.
In Sleeth v. Illinois Department of Public Aid (1984), 125 Ill. App. 3d 847, 850, 466 N.E.2d 703, 706, the court held that if certain procedures are found to violate a statute, it is unnecessary to consider whether those procedures might be unconstitutional if they were allowed by statute. Questions as to the constitutionality of the procedures were deemed to be abstract questions which were not properly reviewable.
In Yale Development Co. v. Andermann (1976), 37 Ill. App. 3d 33, 39, 344 N.E.2d 701, 707, it was held that whether the court was correct in viewing the relationship of the parties as a joint venture was not essential to the determination of the case because the decision turned on other factors. Thus, that aspect of the trial court’s decision was not reviewed.
Bejda v. SGL Industries, Inc. (1979), 73 Ill. App. 3d 484, 489-90, 392 N.E.2d 38, 43, is particularly apposite to the case at bar. In that case, plaintiffs’ complaint was dismissed as a sanction for failure to comply with the court’s order to file an amended bill of particulars. The appellate court found that this was too drastic a sanction and reversed. Both parties filed petitions for rehearing, and a supplemental opinion was issued denying those petitions. In their petition for rehearing, plaintiffs argued that their complaint stated a cause of action and asked the court to rule on whether the reasoning of a certain supreme court decision should be applied to their case. The court held, however, that no substantive products liability law was involved in the dismissal order and therefore the principle of the supreme court case was simply not relevant to the issues presented on appeal. Thus, the court held, there was no reason to consider the question of its applicability to the allegations of plaintiff’s complaint.
Similarly, in the case at bar, the -wisdom or propriety of the Petrillo decision and its applicability to this case involving a nurse are simply not relevant to the issue presented on appeal. It should not have been addressed by the majority and, although I concur wholeheartedly in the result reached by the majority, I cannot concur in its opinion.