dissenting:
While I agree with the majority regarding the inapplicability of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 91½, par. 801 et seq.), I disagree that plaintiff impliedly introduced his mental health condition as an issue when he filed this suit. No Illinois court has ever held that the mere filing of a negligence or strict liability action ipso facto places at issue the mental condition of the plaintiff so as to waive the statutory privilege. Nor does the majority cite any other authority to support its position.
The exception relied upon by the majority to exclude application of the statutory privilege to the facts of this case reads in pertinent part as follows:
“Records and communications may be disclosed in a civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense, if and only to the extent the court *** finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 91½, par. 810(a)(1).
While the majority states that plaintiff’s alcohol treatment records are relevant, probative and the interests of substantial justice require disclosure, the threshold inquiry is whether the plaintiff placed his mental condition at issue. Whether the sought after information is relevant, probative, not unduly prejudicial or inflammatory, etc., are only germane inquiries where the court has first determined that the plaintiff has placed his mental condition in issue.
In Webb v. Quincy City Lines, Inc. (1966), 73 Ill. App. 2d 405, 219 N.E.2d 165, the court held that a complaint alleging pain and suffering as a damage element did not place the plaintiff’s mental condition in issue. The Webb court went on to state, “[W]e think we are under compulsion, therefore, to read section 5.2 literally and hold that the privilege exists unless ‘mental condition’ is specifically made a part of either the claim or defense.” (Webb, 73 Ill. App. 2d at 408; see also Tylitzki v. Triple X Service, Inc. (1970), 126 Ill. App. 2d 144, 261 N.E.2d 533.) Both of these cases stand for the proposition that the privilege is not waived where a plaintiff files a complaint containing a pain and suffering allegation. Yet, the majority in the case sub judice holds that the mere filing of the complaint in and of itself constitutes waiver.
Courts of other jurisdictions, in addressing similar statutes, have refused to find waiver merely because a party filed a pleading in an action where his physical or mental condition may be an issue. In Dillenbeck v. Hess (1989), 73 N.Y.2d 278, 536 N.E.2d 1126, 539 N.Y.S.2d 707, a case involving a physician-patient privilege and an exception similar to the Illinois exception, the court refused to apply the waiver doctrine even though it found that defendant’s physical condition at the time of the accident was clearly in controversy. In Dillenbeck, the defendant had been drinking rather heavily over a seven-hour period leading up to the accident, and there was at least some suggestion that she may have been “shut off” by a bartender because of her intoxicated condition. The court held that
“defendant’s physical condition at the time of the accident is ‘in controversy’ within the meaning of [the statute] and thus potentially subject to discovery.
The information sought by plaintiffs, however — hospital records relating to defendant’s physical condition and blood alcohol content following the accident — indisputably falls within the scope of the physician-patient privilege as information acquired by a physician ‘in attending [defendant] in a professional capacity, and which was necessary to enable him to act in that capacity’ [Citation]. Defendant cannot be said to have waived the privilege simply by denying the allegations in the complaint or by testifying that she cannot remember any details of the incident where the fact of her memory loss is not being advanced to excuse her conduct [citation]. Nor has she waived the privilege by asserting the defenses of comparative negligence and the failure of plaintiffs to wear seat belts since neither defense seeks to excuse the conduct complained of by asserting a mental or physical condition. Moreover, the mere fact that the privilege presents an obstacle to plaintiffs’ discovery of legally pertinent information that would assist them in proving their claim is not, as the dissent seems to suggest, evidence that the privilege is not properly recognized in this case. Indeed, it is inherent in the very nature of an evidentiary privilege that it presents an obstacle to discovery and it is precisely in those situations where confidential information is sought in advancing a legal claim that such privilege is intended to operate. Were we to carve out an exception to the privilege whenever it inhibited the fact-finding process, it would quickly become eviscerated.” Dillenbeck, 73 N.Y.2d at 288-89, 536 N.E.2d at 1133, 539 N.Y.S.2d at 714.
See also Koump v. Smith (1969), 25 N.Y.2d 287, 250 N.E.2d 857, 303 N.Y.S.2d 858.
In Clark v. District Court (Colo. 1983), 668 P.2d 3, 10, a case involving the Colorado physician-patient and psychologist-client privileges, the court held:
“Given the clear terms of these statutory privileges, it would be inappropriate for us to read into the statutory scheme an implied waiver based on nothing more than the privilege holder’s act of filing a pleading in a case in which his physical or mental condition may be an issue. In our view, the appropriate inquiry under such circumstances should be whether the privilege holder has injected his physical or mental condition into the case as a basis of a claim or an affirmative defense.”
Thus, while my research has been unable to uncover any cases on the issue of whether waiver shall be applied merely as a result of a law suit being filed, I think the above authority reveals that such is not the case. Indeed, comprehensive reviews of the psychotherapist-patient and physician-patient privileges never even address the issue of whether the mere filing of a negligence action constitutes a waiver of the privilege. (See generally Annot., Privilege, in Judicial or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient, 44 A.L.R.3d 24 (1972); Annot., 21 A.L.R.3d 912 (1968).) In both of these annotations waiver is only discussed when filing a suit is in conjunction with some other factor which could constitute waiver.
While the majority reasons that plaintiff’s state of intoxication may have caused the accident, and thus is relevant to the issue of plaintiff’s comparative fault, it is important to note that comparative fault is an affirmative defense. Thus, it is capable of being waived by defendant (Terminal Freezers, Inc., v. Roberts Frozen Foods, Inc. (1976), 41 Ill. App. 3d 981, 984, 354 N.E.2d 904) and is not necessarily placed in issue with the filing of the complaint. Likewise, a defendant may fail to pursue third-party relief against an employee-plaintiff’s employer, and even if third-party relief is initiated and plaintiff’s mental condition becomes an issue, it is not an element of plaintiff’s claim.
Nor do I agree with the majority position that the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. 111½, par. 6351 — 1 et seq.) does not protect the records from disclosure. The good-cause exception to the Act, relied upon by the majority to allow disclosure of the records, provides that such record may be disclosed
“[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the practitioner-patient relationship, and to the treatment services.” Ill. Rev. Stat. 1989, ch. 111½, par. 6358-2(3).
In its analysis of the statute, the majority seems to equate good cause with information that is either relevant or could lead to relevant information. While inquiries concerning relevancy are always proper in discovery disputes, the concept of relevancy applies to a much broader spectrum of information than does the issue of good cause. Because all discovery is limited to matters that are either relevant or could lead to relevant information, the equating of good cause with relevancy would completely eradicate the privilege within a lawsuit context. Such a result could hardly have been the intent of the legislature when it enacted the privilege. In my opinion, the following language used by the Dillenbeck court concerning the physician-patient privilege is most appropriate to the case sub judice:
“Moreover, the mere fact that the privilege presents an obstacle to plaintiffs’ discovery of legally pertinent information that would assist them in proving their claim is not, as the dissent seems to suggest, evidence that the privilege is not properly recognized in this case. Indeed it is inherent in the very nature of an evidentiary privilege that it presents an obstacle to discovery and it is precisely in those situations where confidential information is sought in advancing a legal claim that such privilege is intended to operate. Were we to carve out an exception to the privilege whenever it inhibited the fact-finding process, it would quickly become eviscerated.” Dillenbeck, 73 N.Y.2d at 289, 536 N.E.2d at 1133, 539 N.Y.S.2d at 714.
For the foregoing reasons it is my opinion that production of the “Employees Assistance Records” is barred by the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. 111½, par. 6351 — 1 et seq.).
Accordingly, I would reverse the judgment of the circuit court and vacate the finding of contempt along with the resulting fine.