specially concurring:
While I agree with the majority as to reversal and remand for a new trial, and with the majority’s analysis of most issues, I disagree on some points.
A recipient of mental health or developmental disabilities services who wishes to prevent disclosure of his records or communications must be consistent in expressing his desire for confidentiality. If there is a disclosure of confidential information by the recipient, or if he permits such a disclosure, the privilege is waived and cannot be reasserted. (Novak v. Rathnam (1985), 106 Ill. 2d 478, 484, 478 N.E.2d 1334, 1337 (psychiatrist called by defendant in criminal trial required to testify in subsequent civil case; of. self-incrimination privilege).) As to issue IV(C)(1), I would find it inconsistent with the exercise of the privilege for plaintiff to have designated Dr. Finn as an expert witness in accordance with Rule 220(a)(1). (134 Ill. 2d R. 220(a)(1).) Plaintiff chose to make that designation so that he could call Dr. Finn as a witness at trial — -so that plaintiff would avoid disqualification of the witness under Rule 220(b)(1). (134 Ill. 2d R. 220(b)(1).) Designation as an expert exposed Dr. Finn to discovery on his conclusions and opinions and the bases therefor. Plaintiff argues he was forced to designate Dr. Finn as an expert because a local court rule required that treating physicians be designated as experts. (Cf. Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.) It is still clear the reason Dr. Finn was designated was because plaintiff wanted to be free to call him at trial. Plaintiff could have protected Dr. Finn from discovery by designating him a “consulting expert,” but then plaintiff could not have called Dr. Finn as a witness. (134 Ill. 2d Rules 220(a)(2), (b)(2).) Clearly when plaintiff went on to permit Dr. Finn to be deposed, and did not assert the privilege during the deposition, plaintiff waived the privilege. All matters that are privileged against disclosure at trial are privileged against disclosure through any discovery procedure. 134 Ill. 2d R. 201(b)(2).
Section 10(a)(1) of the Confidentiality Act requires the trial court to balance plaintiff’s need for confidentiality against defendant’s need for disclosure. Balancing is difficult where different parties suffer the harm and enjoy the benefit. There is a difference between a plaintiff-witness and an ordinary -witness. Plaintiff wanted to keep out the testimony of Dr. Finn because it harmed his case, not because plaintiff wanted to preserve the integrity of the therapist-patient relationship. If Dr. Finn’s deposition had been more favorable, plaintiff would have called Dr. Finn himself. A plaintiff should not be allowed to use a privilege as both a sword and a shield. In re Marriage of Hartian (1988), 172 Ill. App. 3d 440, 452-53, 526 N.E.2d 1004, 1113 (privilege against self-incrimination).
When the trial court heard argument, examined plaintiff’s psychiatric and chemical dependency records in camera, and issued an order requiring disclosure of those records, then issued a second order barring them from discovery “except by leave of court,” the trial court definitively ruled the records were not discoverable. The quoted language in the court’s order did no more than remind all concerned that the order was interlocutory and could be changed as circumstances warranted. The language was neither an invitation to nor a requirement that defendant proceed further. I would find that defendant has not waived the issue that denial of discovery of these records was error.
Counsel for defendant was allowed to examine the records which were not disclosed when they were included in the record on appeal in this court. A better procedure would have been to have impounded that portion of the record as was done in People v. Bean (1990), 137 Ill. 2d 65, 102-03, 560 N.E.2d 258, 275, cert, denied (1991), 499 U.S. 932, 113 L. Ed. 2d 270, 111 S. Ct. 1338. The fact these records have now been disclosed is one more reason why no privilege exists, for example, on retrial. “ ‘To enforce it thereafter is to seek to preserve a privacy which exists in legal fiction only.’ ” Novak, 106 Ill. 2d at 484, 478 N.E.2d at 1337, quoting 8 Wigmore, Evidence §2389(4), at 860-61 (McNaughton rev. ed. 1961).
In criminal cases the public policy in maintaining the confidentiality of mental health records is subordinate to a defendant’s constitutional right to effectively cross-examine an adverse witness to show bias. Bean, 137 Ill. 2d at 99-100, 560 N.E.2d at 273-74 (an in camera procedure is appropriate to determine which records should be disclosed); cf. People v. Knuckles (1992), 226 Ill. App. 3d 714, 718 (defendant’s communications protected by attorney-client privilege); In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712, 721, 558 N.E.2d 388, 393 (trader Illinois Marriage and Dissolution of Marriage Act mental condition considered introduced only if recipient or his witness first testifies concerning the record or communication).
Habitual drug use is a significant factor in evaluating witness credibility. (People v. Di Maso (1981), 100 Ill. App. 3d 338, 342-43, 426 N.E.2d 972, 975; People v. Givens (1985), 135 Ill. App. 3d 810, 825, 482 N.E.2d 211, 222.) Records regarding a plaintiff’s treatment for alcoholism have similarly been held not protected by the Confidentiality Act. (Maxwell v. Hobart Corp. (1991), 216 Ill. App. 3d 108, 115, 576 N.E.2d 268, 273.) Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice (People v. Chambers (1989), 179 Ill. App. 3d 565, 578, 534 N.E.2d 554, 561), but I would not hold the Confidentiality Act to be an absolute bar to the disclosure of evidence relevant on credibility, especially in a case such as this where plaintiff’s credibility is crucial.
As to issue V, I agree with the majority that Supreme Court Rule 215(a), which allows the court to order a party to submit to a mental or physical examination by the opponent’s physician, should not be interpreted so strictly as to allow examination only by physicians. I disagree, however, that the trial court properly exercised its discretion in refusing an examination by defendant’s occupational therapist or rehabilitation counselor. The rule provides that “[t]he court may refuse to order examination by the physician suggested but in that event shall permit the party seeking the examination to suggest others.” 134 Ill. 2d R. 215(a).
“Absent some substantial countervailing consideration, the defendant should be entitled to a physical examination by a physician chosen by him or the court, even though plaintiff ‘informs’ defendant by exhibiting to him a report of plaintiff’s physicians, hospital records or similar data on which plaintiff may intend to rely at the trial. A party should ordinarily not be relegated to reports obtained by his adversary for his discovery of the nature and extent of his adversary’s injuries.” (Ill. Ann. Stat., ch. 110A, par. 215, Historical and Practice Notes, at 355 (Smith-Hurd 1985).)
There is no suggestion in the record that the examination would have been painful, embarrassing, or uncomfortable for plaintiff, and if that suggestion had been made the court could have imposed conditions on the examination. Carlisle v. Harp (1990), 200 Ill. App. 3d 908, 558 N.E.2d 318, cited by the majority, denied the request as untimely, a consideration not present in this case. Jackson v. Whittinghill (1963), 39 Ill. App. 2d 315, 324, 188 N.E.2d 337, 341, cited by Carlisle for the proposition that the purpose of a Rule 215 examination is not to provide an expert witness for the litigant but to permit discovery, involved a request that a second defense expert examine the plaintiff after one examination had been conducted by a general practitioner. When plaintiff here chose to be examined by his own occupational therapist with the intent to present that testimony at trial, the court should have exercised its discretion under Rule 215 to order plaintiff to submit to examination by an occupational therapist chosen by defendant.