Doe v. ILLINOIS DEP'T. OF PROFESSIONAL REG.

• Decision Date: 26 June 2003
• Docket Number: No. 1-02-1045.,1-02-1045.
• Citation: 275 Ill.Dec. 639,341 Ill. App.3d 1053,793 N.E.2d 119
• Parties: John DOE, Plaintiff-Appellee, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Aurelia Pucinski, Director, Illinois Department of Professional Regulation, Lucia Kubiatowski, Chief ALJ, Illinois Department of Professional Regulation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

793 N.E.2d 119

341 Ill. App.3d 1053

275 Ill.Dec. 639

John DOE, Plaintiff-Appellee, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Aurelia Pucinski, Director, Illinois Department of Professional Regulation, Lucia Kubiatowski, Chief ALJ, Illinois Department of Professional Regulation, Defendants-Appellants.

No. 1-02-1045.

Appellate Court of Illinois, First District, Fourth Division.

June 26, 2003.

James E. Ryan, Attorney General, and Joel D. Bertocchi, Solicitor General, Chicago (Erik G. Light, of counsel), for Appellants.

Edward W. Williams, Ltd., Chicago (Edward W. Williams, of counsel), for Appellee.

Justice HARTMAN delivered the opinion of the court:

On August 8, 2001, the circuit court issued a preliminary injunction barring defendants, Illinois Department of Professional Regulation, Aurelia Pucinski, Director, Illinois Department of Professional Regulation, and Lucia Kubiatowski, Chief ALJ, Illinois Department of Professional Regulation (collectively "the Department"), from disclosing at any hearing any documents, records or testimony pertaining to plaintiff, John Doe, without first obtaining a confidentiality release from him. On March 14, 2002, the court denied the Department's motion to vacate entry of the injunction. The Department appeals from the circuit court's March 14, 2002 order.

On appeal, the Department argues that the court erred in finding that plaintiff had a right to nondisclosure of his mental health records because section 38 of the Medical Practice Act of 1987 (Medical Practice Act) (225 ILCS 60/38 (West 2000) (section 38)) and section 7(a) of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (the Confidentiality Act) (740 ILCS 110/7(a) (West 2000)), authorized the use of a patient's redacted mental health records without his consent in a disciplinary proceeding against the patient's psychiatrist.

In 1999 the Department filed an administrative complaint against Dr. Marc Hugh Slutsky, a psychiatrist, alleging various violations of the Medical Practice Act with regard to his treatment of plaintiff. Specifically, the Department alleged that Dr. Slutsky failed to keep "contemporaneous and retrievable records of his treatment and evaluation" of "Patient X" and that Dr. Slutsky had prescribed controlled substances to "Patient X," including vicodin.

On August 8, 2001, plaintiff filed a complaint for injunctive relief and an emergency motion for injunctive relief against the Department. Plaintiff alleged that he had been Dr. Slutsky's patient for eleven years and was the subject matter of the disciplinary proceeding against Dr. Slutsky. Plaintiff had not consented to allow any information regarding his identity or medical treatment to be the subject of testimony or evidence at Dr. Slutsky's disciplinary hearing. On August 8, 2001, during the course of Dr. Slutsky's disciplinary hearing, the Department asked questions regarding plaintiff and provided the administrative law judge (ALJ) and a member of the Illinois Medical Disciplinary Board a document from plaintiff's insurer without having redacted plaintiff's signature on the document. The Department intended to call as witnesses an insurance investigator and two Department investigators to testify regarding plaintiff's medical records. Plaintiff alleged that the Department breached his right to confidentiality in violation of the Confidentiality Act and the Medical Practice Act. Plaintiff also alleged that he would suffer irreparable harm unless the Department was enjoined from revealing any information regarding him without his consent; he had no adequate remedy at law; and he raised more than a fair question as to the existence of a right to a hearing.

Attached to the complaint was the affidavit of Lillian Walanka, in which she stated that during the August 8 disciplinary hearing regarding Dr. Slutsky, the Department's attorney referred to "Patient X" (plaintiff) during his opening statement; referred to medical records for "Patient X" which had been turned over to plaintiff's insurance provider; stated that Dr. Slutsky had failed to maintain controlled substance prescription records for "Patient X"; and stated that the Department intended to call an insurance investigator and two Department investigators to testify regarding "Patient X's" medical records. Walanka further averred that, during the hearing, the Department provided the ALJ and a medical disciplinary board member with an insurance authorization form containing the unredacted signature of "Patient X."

On August 8, 2001, following hearing on the emergency motion, the circuit court found, as part of its order, that plaintiff: (1) "has an ascertainable right in need of protection"; (2) "has a right to nondisclosure of his mental health records"; (3) "does not have an adequate remedy at law"; and (4) "has a likelihood of success on the merits." The court ordered that "defendants are prohibited from disclosing in any hearing any documents, records or testimony pertaining to John Doe without a confidentiality release from John Doe" and "all records, evidence or transcript of the current proceedings related to John Doe shall be impounded until such time as it can be ascertained how to safely dispose of them." The order was to "remain in effect until further order of the court." The court then set the case for a status date, giving the Department the opportunity to fully review the material and file a responsive pleading.

On September 7, 2001, the Department filed a "Motion to Vacate or Reconsider Entry of Injunction" (motion to vacate). On March 14, 2002, following argument, the circuit court denied the Department's motion. On April 12, 2002, the Department filed a notice of interlocutory appeal, appealing the orders of August 8, 2001, and March 14, 2002.

On May 1, 2002, an order dismissing the appeal for lack of jurisdiction was improvidently entered and the Department's motion to vacate the May 1, 2002 order was granted on May 17, 2002. In its motion to vacate the May 1, 2002 order, the Department admitted that the notice of interlocutory appeal was untimely as to the circuit court's August 8, 2001 order. Only the March 14, 2002 order is at issue in this appeal.

I

The parties first dispute whether or not this court has jurisdiction to consider this appeal. In its jurisdictional statement, the Department claims that this court has jurisdiction pursuant to Supreme Court Rule 307(a)(1) (188 Ill.2d R. 307(a)(1) (Rule 307(a))) which provides:

"An appeal may be taken to the Appellate Court from an interlocutory order of court:

(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction;

* * *

Except as provided in paragraph (b), the appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated `Notice of Interlocutory Appeal' conforming substantially to the notice of appeal in other cases."

The Department characterizes its motion to vacate as a motion to dissolve the preliminary injunction and the circuit court's March 14, 2002 order as one which refused to dissolve the preliminary injunction and, therefore, is appealable under Rule 307(a)(1). See Stoller v. Village of Northbrook, 162 Ill.App.3d 1001, 114 Ill. Dec. 200, 516 N.E.2d 355 (1987) (Stoller) (appeal filed within 30 days from entry of order refusing to dissolve temporary restraining order was timely); Wise v. City of Chicago, 36 Ill.App.2d 196, 183 N.E.2d 538 (1962).

Plaintiff rejects the Department's argument that its motion to vacate was, in substance, a motion to dissolve the preliminary injunction. Relying on Trophytime, Inc. v. Graham, 73 Ill.App.3d 335, 29 Ill. Dec. 391, 391 N.E.2d 1074 (1979) (Trophytime), plaintiff argues that because the notice of interlocutory appeal was not filed within 30 days from the date of entry of the interlocutory order, August 8, 2001, and the running of the 30-day period was not tolled by the filing of the Department's motion to vacate the August 8, 2001 order, this appeal must be dismissed for lack of jurisdiction. Trophytime is distinguishable. In Trophytime, plaintiff sought an injunction against defendant to prohibit him from competing. An interlocutory order denying plaintiff's request was entered on August 30, 1978. On September 13, 1978, plaintiff filed a motion to vacate the August 30 order in which it sought a rehearing or, in the alternative, leave to amend its complaint. The motion was denied on November 30, 1978, and on December 27, 1978, plaintiff filed a notice of interlocutory appeal. Finding that the notice of interlocutory appeal was filed almost four months after the entry of the order being appealed, i.e. the August 30, 1978 order, the appellate court concluded that it lacked jurisdiction.

Unlike Trophytime, the substance of the Department's motion in the present case sought either vacatur or reconsideration of the court's prior ruling. Whether the motion was entitled "Motion to Vacate or Reconsider Entry of Injunction" or motion to dissolve is of no significance; whether termed a motion to vacate or a motion to dissolve, in substance part of the relief requested was dissolution of the preliminary injunction.¹ The supreme court has held that the character of a pleading is to be determined from its content not its label. Kemner v. Monsanto Co., 112 Ill.2d 223, 97 Ill.Dec. 454, 492 N.E.2d 1327 (1986) (Kemner). In its motion to vacate, the Department argued that there was no basis for injunctive relief because plaintiff's rights under the Confidentiality Act were not violated where the underlying disciplinary action against Dr. Slutsky involved only the existence of medical records for plaintiff and not the efficacy of the treatment plaintiff received. The Department further argued that section 38 enabled it to refer to plaintiff's medical records in an administrative proceeding provided that all information indicating plaintiff's...