Goldberg v. Davis
| Decision Date | 14 June 1991 |
| Docket Number | No. 1-90-0392,1-90-0392 |
| Citation | 215 Ill.App.3d 930,575 N.E.2d 1273 |
| Parties | , 159 Ill.Dec. 213 Richard GOLDBERG, M.D., Petitioner-Appellee, v. Judith DAVIS, M.D., Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Rehearing Denied July 12, 1991.
Coffield, Ungaretti, Harris & Slavin, Chicago (Daniel J. Pope, J. Timothy Eaton, William D. Shaver, of counsel), for respondent-appellant.
Sandra G. Nye & Associates, Chicago (Sandra G. Nye, Randy Wayne Franklin, of counsel), for petitioner-appellee.
This is an interlocutory appeal pursuant to Supreme Court Rule 307 brought by respondent, Judith Davis, M.D., from a circuit court order directing Davis to produce the past psychiatric records of C.B., her patient, in response to the subpoena duces tecum issued by the Illinois Department of Professional Regulation. Both petitioner Goldberg and respondent Davis are physicians licensed to practice psychiatry in this state and are currently practicing in the Chicago area.
The Illinois Department of Professional Regulation filed a complaint pursuant to the provisions of the Illinois Medical Practice Act (Ill.Rev.Stat.1987, ch. 111, par. 4400-22) on July 25, 1988, in a disciplinary proceeding seeking to revoke or suspend the license of petitioner, Richard Goldberg, as a physician, alleging improper treatment of his former patient, and that he engaged in unethical and improper physical acts with her in October 1987 while treating her as a patient for depression and an eating disorder known as bulimia.
Specifically the statutory grounds on which the complaint is based are alleged violations of chapter 111, section 22 of the Illinois Medical Practice Act, which provides:
"A. The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license ... of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon any of the following grounds: ...
4. Gross negligence in practice under this Act;
5. Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public; ...
20. Immoral conduct in the commission of any act related to the licensee's practice; ..." Ill.Rev.Stat.1987, ch. 111, pars. 4400-22(a)(4), (5), (20).
The patient testified at the December 7, 1988 hearing before the administrative hearing officer. At the request of the Department the respondent, Davis, testified as C.B.'s present psychiatrist.
Thereafter on March 27, 1989, petitioner Goldberg filed in the circuit court of Cook County "an action to compel production of relevant papers in an administrative proceeding" seeking records in Davis' possession concerning treatment of the patient by other therapists which occurred from four to ten years prior to her treatment by Goldberg. The petition alleged that the patient had waived the privilege to refuse disclosure by her testimony and by allowing Davis to testify concerning the records.
At the same time Goldberg sought to compel the Department to issue a subpoena to Davis for the records, and on June 29, 1989, the hearing officer issued a subpoena for the records in Davis' possession of the patient's treatment prior to her treatment by Goldberg. Davis' motion to quash the subpoena based on privilege was heard and denied by a new hearing officer on October 13, 1989. The hearing officer found that Davis' testimony and the patient's testimony constituted a waiver of the patient's privilege of nondisclosure but held that there was a question of the relevancy of the records which should be addressed by the circuit court.
On November 17, 1989, Goldberg amended the petition pending in the circuit court to "an application for order compelling production of records in an administrative proceeding" seeking to compel Davis to comply with the outstanding subpoena. Davis made the same response as she had argued before the hearing officer.
On January 9, 1990, the trial judge granted Goldberg's application for an order compelling production of records in an administrative proceeding and ordered Davis to produce the records on February 7 for an in camera inspection as to relevancy only. On February 6, Davis filed a notice of interlocutory appeal of the January 5 order of the trial judge seeking its reversal and an order of this court denying Goldberg's petition and quashing the subpoena or, in the alternative, for a reversal with remand for further proceedings consistent with its opinion.
Respondent Davis raises three issues on appeal: (1) whether the psychiatric records ordered to be produced are privileged under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Ill.Rev.Stat.1987, ch. 91 1/2, pars. 801-17); (2) whether there is an exception in the Act which can be invoked to force respondent to disclose prior psychiatric records of other treatment providers; and (3) whether respondent has waived the privilege to refuse disclosure by her testimony at the administrative hearing. Goldberg adds a fourth issue: whether the patient has waived her privilege to refuse disclosure of her psychiatric records by bringing an administrative complaint and by her testimony at the administrative hearing.
Petitioner Goldberg contends on appeal that the records sought are no longer privileged and must be disclosed since Davis has no statutory privilege to refuse disclosure and the Illinois Administrative Code, as well as the Mental Health and Developmental Disabilities Confidentiality Act require their disclosure and production where the propriety of his treatment to the patient is at issue. Petitioner also argues on appeal that the patient waived any privilege she may have had by bringing her complaint against Goldberg and by testifying, that Davis could and did waive any privilege she may have had, and that Davis relied on the past records as a basis for her testimony and opinion.
C.B. is currently and, since approximately December 1987, has been under psychiatric treatment as a patient of respondent Davis. From approximately June to October of 1987, C.B. was a psychiatric patient of petitioner Goldberg for treatment of depression and eating disorder problems.
On June 25, 1988, the Department filed a complaint against Goldberg seeking to revoke or suspend his license as a physician based on allegations of improper treatment to his patient C.B. and on the specific allegation that petitioner engaged in a sexual relationship with her while she was his patient.
On December 5, 1988, the administrative hearing on the complaint commenced before the hearing officer for the Medical Disciplinary Board and at the time of this appeal was ongoing. The patient testified about her treatment while Goldberg's patient and about sexual incidents which occurred during her treatment as his patient.
The Department called respondent Davis as a witness at the hearing. Davis stated that she did not agree to testify as an expert in eating disorders but that she did agree to testify for the purpose of supporting her patient. She stated she was not compensated for her testimony nor was she there in response to subpoena. Davis testified in general terms about her diagnosis of the patient, her opinion concerning the propriety of Goldberg's treatment and standards of conduct of a physician to his patient. During her cross-examination Davis referred to records in her possession of the patient's psychiatric treatment prior to her treatment by petitioner Goldberg. The record discloses no reference on direct examination as to the specifics of patient's treatment prior to Dr. Goldberg's services.
Following this hearing petitioner sought to obtain copies of the records of patient's prior treatment by filing in the circuit court its petition for production of the records, later amended, and subsequently ordered produced by the circuit judge on January 9, 1990, while simultaneously petitioning for and obtaining the issuance of a subpoena duces tecum by the administrative hearing officer on June 29, 1989. Davis refused to comply with the subpoena and appealed the interlocutory order of the trial judge ordering her to comply.
Before ordering Davis to produce the prior records for an in camera inspection the trial judge stated that he had reviewed Goldberg's application to compel production, Davis' response, Goldberg's reply, Davis' motion to quash subpoena, Goldberg's answer thereto and Davis' reply, and copies of various transcripts. He heard arguments of the respective parties. The court then stated:
The trial judge then found there was still a question on the issue of relevance. He again reiterated that:
"Davis used them to formulate an opinion and Goldberg has a right to see the basis of that opinion."
He then ordered the records produced for the court's in camera inspection.
We first consider the relevant statutory provisions of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Ill.Rev.Stat.1987, ch. 91 1/2, pars. 801-17) as they address the issues of confidentiality, privilege and disclosure. Respondent refers us to ...
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