Davis v. Hinde
| Decision Date | 17 March 1986 |
| Docket Number | No. 2-85-0536,2-85-0536 |
| Citation | 490 N.E.2d 1049,141 Ill.App.3d 664,96 Ill.Dec. 13 |
| Parties | , 96 Ill.Dec. 13 Leonard DAVIS, Plaintiff-Appellant, v. John HINDE, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Jeffrey D. Schultz, David A. Vovoselsky, Chicago, for plaintiff-appellant.
Querrey Harrow Gulanick & Kennedy, Michael Resis, Glen E. Amundsen, Waukegan, for defendant-appellee.
Plaintiff, Leonard Davis, appeals pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308) from an order of the circuit court of Lake County which imposed sanctions on his failure to comply with discovery. The trial court certified two questions of law concerning those sanctions, and we allowed leave to appeal. Plaintiff seeks to have the sanctions reversed.
The action from which this interlocutory appeal arises involved a personal injury suit filed by plaintiff, a bus driver, alleging that a vehicle owned and operated by defendant, John Hinde, struck the rear of a bus operated by Davis while the bus was stopped. Before plaintiff's discovery deposition was taken, defendant requested the names of clients represented by plaintiff's attorney within the last three years who were also treated by plaintiff's physicians. Although plaintiff did not object within 28 days, he did so thereafter claiming that the names were privileged. The trial court ordered disclosure within 14 days. Plaintiff did not comply with the order and filed a motion to reconsider which was denied. When plaintiff's attorney continued to refuse to comply, defendant filed a motion for sanctions which was granted. Plaintiff's second motion for reconsideration was also denied and pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308) two questions of law were certified. Plaintiff was granted leave to appeal by this court.
The questions of law presented are: (1) Whether the recent Illinois Supreme Court decision of Sears v. Rutishauser (1984), 102 Ill.2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210 entitles a defendant in a personal injury case to the production during discovery of a list of the names and addresses of all clients of plaintiff's attorney's law firm who had been treated by plaintiff's physicians within the last three years, and (2) Whether, pursuant to Sears v. Rutishauser (1984), 102 Ill.2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210, the trial court abused its discretion in ordering sanctions when plaintiff's attorney did not comply with the said discovery order for production.
In Sears v. Rutishauser (1984), 102 Ill.2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210, our supreme court addressed the question of whether a defense counsel should be allowed to cross-examine plaintiff's expert witness concerning the number and frequency of referrals the expert had received from plaintiff's attorney and the financial benefit derived from them. The court concluded that such cross-examination should be permitted in this State. In reaching this conclusion, however, the court warned that the thorough cross-examination of medical doctors must be tempered with protection of the doctor-patient privilege as well as avoidance of subtrials on issues remote from the subject of the lawsuit or pertaining to cases having no relation to the litigation (102 Ill.2d 402, 408, 80 Ill.Dec. 758, 466 N.E.2d 210). Also, it specifically stated that the subpoena of the doctor's patients' records in that case would have violated the doctor-patient privilege (102 Ill.2d 402, 411, 80 Ill.Dec. 758, 466 N.E.2d 210). The court perceived the underlying motivation for such questioning to be the search for the truth which is often quite difficult in cases where there is conflicting medical testimony concerning the severity of plaintiff's injuries. Therefore, the court viewed the opportunity to weigh the credibility of each witness as having great importance in securing an informed jury decision in such cases.
In the present case, for the purposes of discovery, pursuant to Supreme Court Rule 214 (87 Ill.2d R. 214) defendant requested plaintiff's attorney to produce a list of the names of every client represented by his firm who had also been treated by plaintiff's treating doctors. Defendant's stated purpose was to try to establish the existence of a lucrative business relationship between a Chicago based law firm and Lake County clients receiving treatments for soft-tissue injuries in Lake County and that the opinion of the testifying doctor was the natural and expected result of his employment. Asserting both the attorney-client and physician-patient privilege, plaintiff's attorney declined to turn over the requested material, even though the court ordered him to do so. Although the rationale of the Sears court's decision was similar to the stated purpose of the production request in the present case, namely to provide a safeguard against errant expert testimony, we conclude that the present court's ruling exceeded the boundaries set forth in Sears. This court has recently reasserted that generally the identity of a lawyer's client is outside the scope of the attorney-client privilege except in those cases when application is shown to be in the public interest, or will harm the client in some substantial way. (Shatkin Investment Corp. v. Connelly (1984), 128 Ill.App.3d 518, 83 Ill.Dec. 810, 470 N.E.2d 1230.) In the present case, however, by identifying the clients as requested, the attorney would at the same time be revealing the names of patients who were being treated or who have in the past been treated by plaintiff's doctors. With the Sears holding in mind, two questions must then be answered: first, does the revelation of a patient's name in the circumstances described violate the doctor-patient privilege and second, would the revelation of the names result in subtrials remote from the subject of the present lawsuit?
In People v. Florendo (1983), 95 Ill.2d 155, 69 Ill.Dec. 65, 447 N.E.2d 282, the court held that the public interest in maintaining the breadth of the grand jury's power to conduct investigations necessary to ferret out criminal activity outweighed the interest of a patient in maintaining confidentiality in his or her medical dealings with a physician. Plaintiff interprets Florendo to mean that the doctor-patient privilege may only be abridged when the public has an overriding interest. Although we question whether such a strict interpretation of Florendo...
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