El-Amin v. Dempsey, 1-01-2173.

• Decision Date: 29 March 2002
• Docket Number: No. 1-01-2173.,1-01-2173.
• Citation: 329 Ill. App.3d 800,263 Ill.Dec. 584,768 N.E.2d 344
• Parties: Ayesha El-AMIN, as Duly Appointed Special Adm'r of the Estate of Na'eem Shahid, Deceased, Plaintiff-Appellee, v. Mary DEMPSEY; Home Care Home Health Agency, d/b/a Home First; Mayer Esenstein; Mark Zumhagen; Jifunza Wright; and Peter Rosi, Defendants (Mary Dempsey, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

768 N.E.2d 344

329 Ill. App.3d 800

263 Ill.Dec. 584

Ayesha El-AMIN, as Duly Appointed Special Adm'r of the Estate of Na'eem Shahid, Deceased, Plaintiff-Appellee, v. Mary DEMPSEY; Home Care Home Health Agency, d/b/a Home First; Mayer Esenstein; Mark Zumhagen; Jifunza Wright; and Peter Rosi, Defendants (Mary Dempsey, Defendant-Appellant).

No. 1-01-2173.

Appellate Court of Illinois, First District, Fifth Division.

March 29, 2002.

Weldon-Linne & Vogt, Brian P. O'Kane, Chicago, for Appellant.

Hegarty & Heath, Chicago (Terrence K. Hegarty, Timothy W. Heath, counsel), for Appellee.

Justice GREIMAN delivered the opinion of the court:

The plaintiff, Ayesha El-Amin, filed this medical malpractice action seeking recovery of damages for the death of her infant son pursuant to the Wrongful Death Act (740 ILCS 180/0.01 (West 2000)) and the Survival Act (755 ILCS 5/27-6 (West 2000)). She alleges that defendant, Mary Dempsey, failed to recognize the signs and symptoms of hyperbilirubinemia and failed to inform the codefendant doctors of the child's signs and symptoms of hyperbilirubinemia during her child's second and third days of life.

During the course of discovery, defendant Dempsey issued a subpoena for all the medical records of plaintiff El-Amin at the University of Illinois Hospital. The plaintiff moved to quash the subpoena asserting that such discovery would violate her physician-patient privilege and her right to privacy. At the hearing on plaintiff's motion, Dempsey withdrew her request for all of El-Amin's medical records and narrowed her request to include only the records relating to prenatal care from the period during which El-Amin was pregnant with her son. The trial court granted El-Amin's motion to quash, without prejudice, and requested the parties brief and argue the plaintiff's motion to quash Dempsey's narrowed request for ElAmin's prenatal care records. On March 8, 2001, the court entered an order quashing Dempsey's proposed subpoena despite Dempsey's limited request of only the plaintiff's prenatal care records for the term of her pregnancy.

On June 7, 2001, the court granted Dempsey's motion to certify the following question of law for interlocutory appeal regarding the discoverability of El-Amin's prenatal care records:

"Whether a medical malpractice defendant is entitled to obtain medical records pertaining to the prenatal care rendered to the plaintiff's decedent's mother during the term of her pregnancy with plaintiff's decedent, despite the mother's invocation of the physician-patient privilege and a right to privacy, where (1) the mother is both the plaintiff who filed the wrongful death cause of action on behalf of the decedent's estate and a beneficiary to the decedent's estate; and (2) where the plaintiff's decedent's death is alleged to have resulted 16 days after the decedent's birth as a result of the defendants' allegedly negligent care rendered in the first three days of the decedent's life[.]"

On July 30, 2001, we granted Dempsey's application for leave to appeal pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308). For the reasons that follow, we answer that certified question in the affirmative.

On May 8, 1998, El-Amin gave birth to her son Na'eem Shahid in her home. Codefendant Dr. Zumhagen delivered the infant at approximately 3 a.m. On May 9 and May 10 of 1998, Dempsey evaluated the mother and child in the home and determined that the baby was jaundiced. On May 11, 1998, the child was admitted to the University of Illinois Hospital, where the child was diagnosed with hyperbilirubinemia and kernicterus. The plaintiff's decedent was discharged from the hospital on May 16, 1998. On May 24, 1998, the plaintiff's decedent was taken to the University of Chicago Hospital, where the infant was pronounced dead. A Cook County medical examiner listed the cause of death as "Sudden Infant Death Syndrome."

On May 12, 2000, El-Amin filed a multiple-count complaint, and in her first amended complaint, she alleged that Dempsey and certain other physician and corporate defendants were guilty of medical negligence that resulted in the death of her son. In response to Dempsey's interrogatories, the plaintiff disclosed that she had received prenatal care at Women's Health and Associates (affiliated with the University of Illinois Hospital) during the course of her pregnancy.

On November 6, 2000, Dempsey caused a subpoena to be issued to the University of Illinois Hospital requesting "any and all" of El-Amin's medical records. On November 13, 2000, El-Amin presented an emergency motion to quash Dempsey's subpoena. In support of her emergency motion to quash, El-Amin made three arguments. First, she argued that she was only a nominal plaintiff and that she had not placed her medical condition at issue by filing suit. Second, she argued that her medical records were nondiscoverable because the disclosure of her medical records would violate her constitutional right to privacy. Lastly, she asserted that the disclosure of her records would violate the physician-patient privilege, which she claims she did not waive. On November 13, 2000, the trial court granted El-Amin's motion to quash without prejudice. At that time, Dempsey proposed a narrower subpoena request for El-Amin's prenatal medical records only for the period that she was pregnant.

In response to Dempsey's new subpoena request, the court entered a briefing schedule regarding the discoverability of El Amin's medical records for the period of her pregnancy. On March 8, 2001, however, the court entered an order quashing Dempsey's proposed subpoena.

Thereafter, Dempsey filed a motion pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308) requesting the trial court to certify a question of law regarding the discoverability of El Amin's prenatal care records during the term of her pregnancy. On June 7, 2001, the court granted Dempsey's motion and certified a question of law for interlocutory appeal, finding a substantial ground for a difference of opinion as to the court's order of March 8, 2001.

The standard of review of an interlocutory appeal, by permission of a certified question, is de novo. Moriarty v. Greene, 315 Ill.App.3d 225, 231, 247 Ill. Dec. 675, 732 N.E.2d 730 (2000)

. On appeal, Dempsey asserts that she is entitled to obtain the medical records of the plaintiff during the course of her pregnancy with her decedent. She asserts that El-Amin placed at issue the prenatal care afforded to the decedent by filing a medical malpractice claim against the defendants for injuries suffered by the decedent. In support of this assertion, she raises three arguments. First, she claims that inasmuch as the question presented for review is one of first impression, this court should find, as New York and California courts have, that the prenatal care records of a mother are inseparable from the prenatal care records of an infant plaintiff. Thus, Dempsey argues, El-Amin waived either her own or her infant's physician-patient privilege with respect to those records by filing a medical malpractice lawsuit on behalf of her deceased infant and, therefore, those records are discoverable. Secondly and alternatively, she argues that the current law of the state compels an identical result. Lastly, she claims that the Illinois Constitution affords only a limited right to privacy, which is inapplicable to what she terms a "reasonable" discovery request for the plaintiff's records in this case.

Since no Illinois court has squarely addressed this question, for guidance in our decision Dempsey points to similar decisions in New York and California that have held that a mother may not prevent medical malpractice defendants from obtaining the prenatal care records for the period during which the mother was pregnant with the infant plaintiff. In both states, in fact, courts have held that prenatal care records are not exclusively those of the mother but also belong equally to the infant. Accordingly, by filing such a medical malpractice action, either the mother or the infant plaintiff through his mother waives the physician-patient privilege with respect to prenatal care records. See, e.g., Scharlack v. Richmond Memorial Hospital, 102 A.D.2d 886, 888, 477 N.Y.S.2d 184, 187 (1984)

(holding that the mother "can be deemed to have waived the physician-patient privilege only with respect to the medical history and records pertaining to the period when the plaintiff was in utero, during which time there could be no severance of the infant's prenatal history from his mother's medical history"). See also Hughson v. St. Francis Hospital of Port Jervis, 93 A.D.2d 491, 500, 463 N.Y.S.2d 224, 231 (1983); Burgos v. Flower & Fifth Avenue Hospital, 108 Misc.2d 225, 437 N.Y.S.2d 218 (1980).

Moreover, in Yetman v. St. Charles Hospital, 112 A.D.2d 297, 491 N.Y.S.2d 742 (1985), the New York Court of Appeals found that even in an instance where a medical malpractice suit was filed on behalf of an infant by his father, the mother's prenatal care records that were kept during the course of her pregnancy with the infant plaintiff were discoverable. Specifically, Yetman held that "case law clearly holds that the mother's medical records pertaining to the period when the plaintiff was in utero are discoverable upon the theory of impossibility of severance." Yetman, 112 A.D.2d at 298, 491 N.Y.S.2d at 744-5.

In a more recent decision, the Supreme Court of Suffolk County, Appellate Division, held that in such instances, a mother does not waive her own physician-patient privilege with respect to the prenatal care records. Rather, she waives her infant's physician-patient privilege by filing the suit on the infant's behalf. Spratt v. Rochelson, 164 Misc.2d 535, 625 N.Y.S.2d 827 (1994). The court held, "[b]y commencing this action on behalf of Nicholas [the infant] and placing his physical condition in controversy thereby, Rosemary Spratt effectively waived Nicholas'...