People v. Maltbia

JUSTICE HOLDRIDGE,

specially concurring:

I concur with the opinion affirming the trial court’s granting of defendant’s motion in limine. I write, however, to express my belief that even if the defendant was in police custody pursuant to an arrest at the time the bag was found, subsection 8 of section 8 — 802 of the Code of Civil Procedure would not permit testimony from medical personnel concerning the bag and its contents at defendant’s trial for unlawful possession of cannabis, unlawful possession of a controlled substance, or unlawful possession of a controlled substance with intent to deliver. I therefore disagree with the court’s finding significance in the fact that no police officers were present in the emergency room during the defendant’s medical examination and treatment.

It is a general rule of statutory construction that exceptions within a statute, being designed to qualify or limit what is affirmed in the body of the statute, are to be strictly construed. (Office of the Lake County State’s Attorney v. Human Rights Comm’n (1992), 235 Ill. App. 3d 1036; People v. Lofton (1977), 69 Ill. 2d 67.) Our legislature, by enacting section 8 — 802 of the Code of Civil Procedure, established a general prohibition against a physician’s disclosure of privileged information in all instances except:

"(1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide, (2) in actions, civil or criminal, against the physician for malpractice, (3) with the expressed consent of the patient, or in case of his or her death or disability, of his or her personal representative or other person authorized to sue for personal injury or of the beneficiary of an insurance policy on his or her life, health, or physical condition, (4) in all actions brought by or against the patient, his or her personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his or her estate wherein the patient’s physical or mental condition is an issue, (5) upon an issue as to the validity of a document as a will of the patient, (6) in any criminal action where the charge is either first degree murder by abortion, attempted abortion or abortion, (7) in actions, civil or criminal, arising from the filing of a report in compliance with the Abused and Neglected Child Reporting Act, [citation] (8) to any department, agency, institution or facility which has custody of the patient pursuant to State statute or any court order of commitment, (9) in prosecutions where written results of blood alcohol tests are admissible pursuant to Section 11 — 501.4 of the Illinois Vehicle Code [citation] or (10) in prosecutions where written results of blood alcohol tests are admissible under Section 5 — 11a of the Boat Registration and Safety Act [citation].” (Emphasis added.) 735 ILCS Ann. 5/8 — 802 (Michie 1995).

I note that 7 of the 10 exceptions to the physician-patient privilege address when a physician may testify without the patient’s consent in a criminal proceeding. I believe that these are the only circumstances under which medical personnel covered by the physician-patient privilege may testify to privileged information in a criminal proceeding. Since the criminal proceeding against the defendant did not involve any of the situations listed in these seven exceptions, I would hold that the physician-patient privilege would prevent testimony from these medical personnel, regardless of the defendant’s custody status.

I also note that subsection 8 provides an exception to allow physicians to disclose privileged information concerning patients to a department, institution, etc., which has court ordered or statutory custody of the patient. Although there are no reported decisions interpreting subsection 8, it would appear from a reading of the plain language that this exception was intended to permit disclosure of otherwise privileged information to the patient’s custodian. This exception does not address disclosing privileged information in criminal proceedings and should not be used to expand the circumstances under which privileged information may be disclosed in a criminal proceeding.

Finally, I note that had a police officer been present in the emergency room, personally observed the bag being removed from the defendant, and personally observed the contents of the bag, that officer could testify to his own observations.

For the reasons stated, I concur in the judgment of the court.