Palm v. Holocker

• Decision Date: 13 December 2018
• Docket Number: Docket No. 123152
• Citation: 433 Ill.Dec. 104,2018 IL 123152,131 N.E.3d 462
• Parties: Scarlett PALM, Appellant, v. Ruben HOLOCKER (Karl Bayer, Appellee).
• Court: Illinois Supreme Court

2018 IL 123152

131 N.E.3d 462

433 Ill.Dec. 104

Scarlett PALM, Appellant,

v.Ruben HOLOCKER (Karl Bayer, Appellee).

Docket No. 123152

Supreme Court of Illinois.

Opinion filed December 13, 2018

Modified Upon Denial of Rehearing February 28, 2019

Christopher H. Sokn, of Kingery Durree Wakeman & O’Donnell, Associates, of Peoria, for appellant.

Daniel E. Compton, of Compton Law Group, of Elgin, for appellees.

Jessica R. Sarff, of Heyl, Royster, Voelker & Allen, of Peoria, for amicus curiae Illinois Association of Defense Trial Counsel.

JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 At issue is whether contemnor, Karl Bayer, was entitled to assert the physician-patient privilege ( 735 ILCS 5/8-802 (West 2016) ) in this negligence case. Bayer refused to provide answers to two interrogatories seeking the names of health care providers who had treated his client, defendant Ruben Holocker. The trial court ordered contemnor to provide answers to the interrogatories, and when contemnor refused to do so, the court held him in contempt. Contemnor appealed the contempt order, and the appellate court reversed the discovery order and vacated the contempt order. The appellate court held that the information was privileged because defendant's medical condition was not an issue in the case. 2017 IL App (3d) 170087, 419 Ill.Dec. 204, 92 N.E.3d 615. Plaintiff appeals, and we affirm the appellate court's judgment as modified.

¶ 2 BACKGROUND

¶ 3 On October 18, 2014, defendant, Ruben Holocker, struck plaintiff, Scarlett Palm, with his vehicle. At the time, plaintiff was a pedestrian and was crossing the intersection of 5th Street and Ida Street in Lacon.

¶ 4 Plaintiff filed a personal injury complaint against defendant in the circuit court of Marshall County. Plaintiff alleged that defendant was negligent in one or more of the following ways:

"a. Failed to keep and maintain a safe and proper lookout as he drove his vehicle into the intersection;

b. Drove his vehicle and turned left onto 5th Street from Ida [Street] when he failed to stop at the stop sign at Ida; and

[c.] Failed to yield the right-of-way to Plaintiff, who had the preferred right-of-way while walking across 5th Street at said intersection, and thereby violated 625 ILCS 5/11-1204."

¶ 5 Defendant filed an answer in which he denied all three of the above allegations of negligence. Additionally, defendant filed an affirmative defense in which he alleged that plaintiff was more than 50% responsible for her injuries. Defendant alleged that plaintiff was negligent in that she:

"a) Improperly crossed a street when it was unsafe to do so;

b) Failed to keep a proper lookout; and

c) Was under the influence of an alcoholic or narcotic substance that impaired her ability at the time of the accident."

Defendant asserted that any recovery that plaintiff received should be reduced by that portion of contributory negligence attributable to plaintiff.

¶ 6 Plaintiff served Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) interrogatories on defendant, including the following:

"20. Do you have any medical and/or physical condition which required a physician's report and/or letter of approval in order to drive? If so, state the nature of the medical and/or physical condition, the physician or other health care professional who issued the letter and/or report, and the names and addresses of any physician or other health care professional who treated you for this condition prior to the occurrence.

21. State the name and address of any physician, ophthalmologist, optician or other health care professional who performed any eye examination of you within the last five (5) years, and the dates of each such examination.

22. State the name of any physician or other health care professional who examined and/or treated you within the last ten (10) years, and the dates of each such examination."

¶ 7 Defendant answered interrogatory number 20 by stating, "Yes, diabetic reasons, Dr. Christopher Nau, 4th [S]treet, Chillicothe, IL 274-4336." However, he refused to answer numbers 21 and 22. For each of these, he provided the following objection: "The defendant objects to the question as it violates [HIPAA], doctor-patient privilege, and the Defendant has not placed his medical condition at issue in this matter."

¶ 8 Plaintiff filed a motion to strike defendant's objections and compel defendant's answers to interrogatories 21 and 22. At a hearing on the motion to compel, plaintiff argued that defendant's ability to see and to drive was at issue because he drove his vehicle into a pedestrian. Plaintiff's counsel explained to the trial court why he believed that defendant's ability to see was at issue:

"MR. O'DONNELL: And Judge, here, just by way of background, a few weeks after this happened our client got a Facebook post from someone that said that the defendant in this case is legally blind, from someone who knows him, and that he has had other—a few other collisions that he's never reported to anyone because of the fear of a revocation of his privileges based upon his difficulties with vision."

¶ 9 Contemnor argued that defendant's medical information was privileged because the defense was not putting defendant's medical condition at issue. Contemnor acknowledged that defendant requires a doctor's note to drive but explained that the defense was not claiming that defendant suffered a "sudden and unexpected attack." The court then asked about the allegation that defendant failed to keep a proper lookout. Contemnor said that he believed the testimony would show that his client was waving to a pedestrian by the side of the road and was simply not looking at plaintiff. Contemnor argued that vision was not at issue because defendant was not even looking in plaintiff's direction at the time. The court granted plaintiff's motion, ordered defendant to answer the interrogatories, and entered a Health Insurance Portability and Accountability Act of 1996 (HIPAA) ( 42 U.S.C. § 1320d et seq. (2012) ) order applicable to plaintiff and defendant. Plaintiff had previously subpoenaed defendant's medical records from Dr. Nau and the Secretary of State, and the court ordered the Secretary of State to comply with the subpoena.

¶ 10 Defendant still refused to answer the interrogatories, and plaintiff moved for sanctions. At the hearing on the motion for sanctions, contemnor argued that Illinois case law provides that a defendant's medical information is privileged unless the defendant puts his medical condition in issue. Contemnor argued that he was not putting defendant's medical condition at issue. The trial judge asked plaintiff's counsel if he contended that defendant's answer that he needed a doctor's note to drive because of diabetic reasons had put defendant's possible visual impediment at issue. Plaintiff's counsel responded that there was "no question" that defendant's sight was at issue because he had hit a pedestrian in broad daylight. Contemnor told the court that he believed defendant would testify in his deposition that the reason he did not see plaintiff was that he was waving to a friend of his on the corner. Plaintiff's attorney told the court that he had subpoenaed defendant's driving records and that defendant had been involved in seven or eight different collisions before the present one and he wanted to find out if defendant was using multiple optometrists to find one who would clear him to drive. Plaintiff also wanted to subpoena Dr. Nau's records. The trial court said that it did not want plaintiff going on a fishing expedition but that it did believe that sight was an issue based on the fact that defendant had diabetes and had not seen the plaintiff when he struck her. Contemnor disagreed and explained that the reason for the doctor's permission might be to make sure that defendant's blood sugar was controlled and that he was not having episodes of low blood sugar. Contemnor also pointed out that defendant had a valid driver's license at the time of the accident. The court found that plaintiff had legitimate reasonable cause to believe that defendant had sight problems that could have been related to the accident and that plaintiff had "a right to look for that." The court held defendant's attorney in contempt and imposed a $ 5-per-day fine until contemnor submitted answers to the interrogatories.

¶ 11 Contemnor appealed, and the appellate court reversed the contempt finding. The court first noted a potential procedural problem. The appeal was from an order holding contemnor in contempt for failing to provide answers to two interrogatories. The parties briefed the broader issue of whether the physician-patient privilege applied at all in this case, not whether it applied to the two interrogatories. 2017 IL App (3d) 170087, ¶ 15, 419 Ill.Dec. 204, 92 N.E.3d 615. However, the court found that it should address the briefed issue in the interests of the orderly administration of justice and to avoid an inevitable second appeal. Id. ¶ 16. Moreover, the court noted that a ruling that the privilege applied would render the interrogatories pointless. Id. ¶ 15. If plaintiff could not obtain defendant's medical records, the answers to the two interrogatories would not lead to discoverable information. Id. ¶ 29.

¶ 12 The court held that the records were privileged under section 8-802 of the Code of Civil Procedure and that the exception provided in subsection (4) did not apply. This exception provides that the privilege does not apply "in all actions brought by or against the patient * * * wherein the patient's physical or mental condition is an issue." 735 ILCS 5/8-802(4) (West 2016). Plaintiff argued that "an issue" as used in this subsection simply means relevant. The appellate court disagreed. The court noted that irrelevant information is neither subject to disclosure nor admissible in evidence and, if the legislature meant "an issue" to mean "relevant," it would have simply said that the privilege does not...