Burger v. Lutheran General Hosp.

• Decision Date: 18 October 2001
• Docket Number: No. 89643, No. 89644.
• Parties: Doris BURGER, Appellee, v. LUTHERAN GENERAL HOSPITAL et al., Appellants.
• Court: Illinois Supreme Court

759 N.E.2d 533

198 Ill.2d 21

259 Ill.Dec. 753

Doris BURGER, Appellee, v. LUTHERAN GENERAL HOSPITAL et al., Appellants.

Nos. 89643, 89644.

Supreme Court of Illinois.

October 18, 2001.

Rehearing Denied December 3, 2001.

Eugene A. Schoon, Susan A. Weber and Darin V. Osmond, of Sidley & Austin, Chicago, for appellants Lutheran General Hospital et al.

Hugh C. Griffin, Hugh S. Balsam and Sarah H. Dearing, of Lord, Bissell & Brook, Chicago, for appellants Rush-Presbyterian-St. Luke's Medical Center et al.

Keith A. Hebeisen, of Clifford Law Offices, and Bruce R. Pfaff, Chicago, for appellee.

Richard A. Devine, State's Attorney, Chicago (Patrick T. Driscoll, Jr., and Sara Dillery Hynes, Assistant State's Attorneys, of counsel), for amicus curiae County of Cook.

Thaddeus J. Nodzenski and Mark D. Deaton, Naperville, for amicus curiae Illinois Hospital & Healthsystems Association.

Herbert H. Franks and Dennis A. Rendleman, Springfield, for amicus curiae Illinois State Bar Association.

Justice McMORROW delivered the opinion of the court:

At issue in these consolidated cases is whether certain provisions of section 6.17 of the Hospital Licensing Act (Act) (210 ILCS 85/6.17 (West 2000)), as amended by Public Act 91-526 (Pub. Act 91-526, eff. January 1, 2000), violate the Illinois Constitution of 1970. The circuit court of Cook County held that portions of sections 6.17(d) and (e) and all of section 6.17(h) violate the doctrine of separation of powers (Ill. Const. 1970, art. II, § 1). The circuit court also found that portions of subsections (d) and (e) of section 6.17 violate a patient's right to privacy with respect to medical information (Ill. Const. 1970, art. I, §§ 6, 12). However, the circuit court rejected plaintiff's contention that the challenged provisions of the Act constituted impermissible special legislation. Ill. Const. 1970, art. IV, § 13. The circuit court severed the provisions it found unconstitutional from the remainder of section 6.17. Defendants appealed directly to this court. 134 Ill.2d R. 302(a). For the reasons that follow, we reverse in part, affirm in part, and remand this cause to the circuit court for further proceedings.

BACKGROUND

During the early afternoon of December 12, 1996, plaintiff, Doris Burger, went to the emergency room of Lutheran General Hospital (Hospital) with a leg injury. Within a few hours, after examination and treatment, plaintiff was released. On the evening of December 13, 1996, plaintiff was admitted to the Hospital for intravenous antibiotic therapy. On December 16, 1996, plaintiff's leg was amputated at the knee. Plaintiff thereafter filed a medical malpractice complaint in the law division of the circuit court of Cook County, naming four doctors, the Hospital and the Hospital's parent corporation as defendants. Plaintiff alleged that the Hospital was negligent in the care provided to her in the Hospital's emergency room on December 12, 1996. In addition, plaintiff alleged that the Hospital was negligent in several respects during her admission from December 13 to December 16, 1996.

Discovery in plaintiff's case was ongoing at the time that Public Act 91-526 became effective on January 1, 2000. This Public Act, which was unanimously passed by the Illinois General Assembly, amended section 6.17 of the Act, which governs protection of, and confidential access to, a hospital patient's medical records and information. Public Act 91-526 added several new subsections to section 6.17, including subparagraphs (d) and (e), which are challenged by plaintiff in this appeal. Public Act 91-526 also relettered the subsections which were originally part of the preamended version of section 6.17. One of these provisions, now lettered as subparagraph (h), is also challenged by plaintiff at bar. Pertinent provisions of section 6.17 provide:

"(a) Every hospital licensed under this Act shall develop a medical record for each of its patients as required by the Department [of Public Health of the State of Illinois] by rule.

(b) All information regarding a hospital patient gathered by the hospital's medical staff and its agents and employees shall be the property and responsibility of the hospital and must be protected from inappropriate disclosure as provided in this Section.

* * *

(d) No member of a hospital's medical staff and no agent or employee of a hospital shall disclose the nature or details of services provided to patients, except that the information may be disclosed to the patient, persons authorized by the patient, the party making treatment decisions, if the patient is incapable of making decisions regarding the health services provided, those parties directly involved with providing treatment to the patient or processing the payment for that treatment, those parties responsible for peer review, utilization review, quality assurance, risk management or defense of claims brought against the hospital arising out of the care, and those parties required to be notified under the Abused and Neglected Child Reporting Act, the Illinois Sexually Transmissible Disease Control Act, or where otherwise authorized or required by law.

(e) The hospital's medical staff members and the hospital's agents and employees may communicate, at any time and in any fashion, with legal counsel for the hospital concerning the patient medical record privacy and retention requirements of this section and any care or treatment they provided or assisted in providing to any patient within the scope of their employment or affiliation with the hospital.

* * *

(h) Any person who, in good faith, acts in accordance with the terms of this Section shall not be subject to any type of civil or criminal liability or discipline for unprofessional conduct for those actions.

(i) Any individual who wilfully or wantonly discloses hospital or medical record information in violation of this Section is guilty of a Class A misdemeanor. As used in this subsection, `wilfully or wantonly' means a course of action that shows an actual or deliberate intention to cause harm or that, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 210 ILCS 85/6.17(a), (b), (d), (e), (h), (i) (West 2000).

On January 19, 2000, plaintiff filed with the circuit court an emergency motion to bar ex parte communication between the Hospital's counsel and those members of its medical staff, agents, and employees who provided health care to plaintiff but were not named as defendants in plaintiff's complaint. Plaintiff's motion also requested that the circuit court declare subsection (e) of section 6.17 unconstitutional on the basis that it violates the separation of powers and the personal privacy rights of Illinois plaintiffs. The circuit court ordered that, pending disposition on the merits of plaintiff's motion, counsel for the Hospital was not to communicate outside the presence of plaintiff's attorney with any of plaintiff's health-care providers, other than those who were specifically alleged to be negligent in plaintiff's complaint and whose negligence could be imputed to the Hospital. On February 3, 2000, plaintiff filed with the circuit court an amended motion wherein plaintiff additionally sought the invalidation of subparagraphs (d) and (h) of section 6.17 of the Act.

At the time plaintiff filed these motions in the circuit court of Cook County, several similar motions were pending in that court's law division. On February 17, 2000, the presiding judge of the law division of the Cook County circuit court entered an order intended to "efficiently and fairly deal with the multitude of motions" filed in the law division which challenged the constitutionality of section 6.17 of the Act. The order stated that the "interests of justice and judicial economy are best served by the designation of one judge to hear the motions on a consolidated basis." Plaintiff's case was thereafter designated the lead case in the consolidated proceedings.

With the leave of the circuit court, plaintiff filed a fifth complaint at law on February 18, 2000, which added a fourth count to plaintiff's action. Count I of plaintiff's complaint, captioned "entity liability," alleges that on December 12, 1996, and on December 13 through 16, 1996, the Hospital and its parent corporations, "acting through their employees and agents," negligently failed to admit plaintiff to the hospital, failed to provide "timely and competent physician care," failed to "properly diagnose and treat her condition of ill being," failed to "obtain timely and appropriate consultations," and negligently discharged plaintiff from the emergency room. Plaintiff did not identify by name any employee or agent of the Hospital as a defendant in this count. Counts II and III of plaintiff's complaint alleged specific acts of negligence by certain named physicians "acting within the scope and course of their agency relationship" with the Hospital and its parent corporations. The newly added count IV requested that the circuit court declare Public Act 91-526 unconstitutional and enjoin its operation. On that same day, plaintiff also filed a motion for judgment on the pleadings as to count IV of her complaint.

On May 10, 2000, the circuit court issued a written memorandum opinion and order. The court determined that its decision was controlled by this court's rulings in Kunkel v. Walton, 179 Ill.2d 519, 228 Ill.Dec. 626, 689 N.E.2d 1047 (1997), and Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997), wherein this court held that several provisions of the Civil Justice Reform Act of 1995 were unconstitutional. Applying the reasoning of Kunkel and Best to the matter at bar, the circuit court determined that portions of sections 6.17(d) and (e) and all of section 6.17(h) violated the doctrine of separation of powers. The circuit court drew an analogy between certain provisions contained in...