PEOPLE, DEPT. OF PROF. REGULATION v. Manos

• Decision Date: 26 November 2001
• Docket Number: No. 1-00-2816.,1-00-2816.
• Citation: 326 Ill. App.3d 698,260 Ill.Dec. 364,761 N.E.2d 208
• Parties: The PEOPLE, the DEPARTMENT OF PROFESSIONAL REGULATION, Plaintiff-Appellee, v. Thomas G. MANOS and Mark Kolozenski, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

761 N.E.2d 208

326 Ill. App.3d 698

260 Ill.Dec. 364

The PEOPLE, the DEPARTMENT OF PROFESSIONAL REGULATION, Plaintiff-Appellee, v. Thomas G. MANOS and Mark Kolozenski, Defendants-Appellants.

No. 1-00-2816.

Appellate Court of Illinois, First District, First Division.

November 26, 2001.

Rehearing Denied January 14, 2002.

Paul E. Chronis, Chicago, for Appellant.

Diane M. Potts, Assistant Attorney General, Chicago, for Appellee.

Presiding Justice COHEN delivered the opinion of the court:

Defendants, Dr. Thomas Manos and Dr. Mark Kolozenski, refused to produce patient appointment books and the medical records of two patients named in a subpoena duces tecum issued by plaintiff Department of Professional Regulation (the Department), pursuant to section 60d of the Civil Administrative Code of Illinois (20 ILCS 2105/60d (West 1998) (recodified as 20 ILCS 2105/2105-105 (West 2000))). When defendants refused to produce the subpoenaed documents, plaintiff filed a complaint in the circuit court of Cook County to enforce the subpoena. Defendants answered the complaint, asserting the physician-patient privilege as an affirmative defense. 735 ILCS 5/8-802 (West 2000). Plaintiff filed a response denying defendants' affirmative defense without explanation. Both the defendants and plaintiff subsequently filed cross-motions for summary judgment.¹ The circuit court granted plaintiff's motion for summary judgment; however, the order provided that the production of the subpoenaed records would be stayed if defendants filed a notice of appeal. Defendants now appeal to this court to determine whether dentists are within the class of healthcare providers covered by the physician-patient privilege.

We hold that dentistry is a branch of surgery, and because the privilege covers both "physicians" and "surgeons," defendants cannot be compelled to produce their patient files for any reason outside of those stated in section 8-802 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/8-802 (West 2000)). While the defendants' patient files—irrespective of the patient identifying information being redacted—are privileged, the appointment books are not privileged and must be produced.

BACKGROUND

On February 3, 2000, plaintiff filed a complaint in the circuit court of Cook County to enforce an administrative subpoena duces tecum it had served on defendants. The subpoena ordered defendants to produce the patient records of two patients defendants had treated on Monday, June 23, 1997. The subpoena also sought production of the defendants' patient appointment books, including the names, addresses and phone numbers of all patients treated on any Monday in the months of February, March, April and June of 1997. Defendants waived service, answered the complaint and asserted the physician-patient privilege as an affirmative defense. Both plaintiff and defendants subsequently filed cross-motions for summary judgment (735 ILCS 5/2-1005 (West 2000)).

On July 31, 2000, the circuit court conducted a hearing on plaintiff's motion for summary judgment. The circuit court began the hearing by explaining that it had done a lot of research and had "[found] it very hard to come to the conclusion that a dentist should not be entitled to the same protections * * * as any other so-called medical professionals." Nevertheless, after both attorneys presented their arguments, the circuit court granted plaintiff's motion for summary judgment and ordered the defendants to produce the records requested in plaintiff's November 2, 1999, subpoena with the patient names and any other identifying information redacted. The court further ordered the production of said records by August 30, 2000, unless defendants filed a notice of appeal. If such a notice was filed, defendants would then not be required to produce the subpoenaed documents unless they were ordered to do so by this court. As its basis for ruling the circuit court stated:

"I have no guidance from any appellate tribunal. There is no case involving a dentist or anyone providing oral care. I think that there is a strong argument in favor of the consideration of the public agency's protection of the public in contradistinction to the individual. I think that the privilege of the individual must be surrendered to the benefit of the public at large. * * * It is a perfect case for 160 North LaSalle Street. Let some appellate court tell us in the future exactly what we should do."

In accordance with the circuit court's order, defendants filed a timely notice of appeal on August 23, 2000.

On appeal, defendants contend: (1) summary judgment was improper because issues of material fact exist; (2) dentists are considered "surgeons" under Illinois case law, and therefore they are covered by the physician-patient privilege; and (3) the material requested by the Department to be produced falls under the physician-patient privilege.

Plaintiff responds that: (1) the Department has subpoena power over defendants' patient files as part of an administrative investigation of defendants pursuant to the Illinois Dental Practice Act (Dental Act) (225 ILCS 25/25 (West 2000)) and the Civil Administrative Code of Illinois (Civil Code) (20 ILCS 2105/2105-105 (West 2000)); (2) the circuit court's order was proper because dentists are not specifically covered by the physician-patient privilege; and (3) even if defendants are entitled to assert the physician-patient privilege, the subpoenaed documents do not fall under the privilege.

ANALYSIS

While we gently respond that perfection is in the eye of the beholder, we do agree with our circuit court colleague that the issue before us is one of first impression in Illinois and note 160 North LaSalle appreciates his concerns.

I. Standard of Review

This case requires us to interpret a statute and determine whether summary judgment was properly granted; therefore, our review is de novo. Rockwood Holding Co. v. Department of Revenue, 312 Ill.App.3d 1120, 1123, 245 Ill.Dec. 437, 728 N.E.2d 519 (2000)

; In re Estate of Hoover, 155 Ill.2d 402, 411, 185 Ill.Dec. 866, 615 N.E.2d 736 (1993). "Summary judgment is to be granted only if the pleadings, affidavits, depositions, admissions, and exhibits on file, when reviewed in the light most favorable to the nonmovant, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Berlin v. Sarah Bush Lincoln Health Center, 179 Ill.2d 1, 7, 227 Ill.Dec. 769, 688 N.E.2d 106 (1997); 735 ILCS 5/2-1005(c) (West 2000). "On de novo review of an order granting summary judgment, this court must ascertain whether the trial court properly concluded there were no genuine issues of material fact and if there were none, whether judgment for the movant was correct as a matter of law." Constitutional Casualty Co. v. Soder, 281 Ill. App.3d 657, 660, 217 Ill.Dec. 485, 667 N.E.2d 574 (1996). In conducting our review, "we are free to consider any pleadings, depositions, admissions, and affidavits on file at the time of the hearing regardless of whether facts contained therein were presented to the trial court in response to the motion for summary judgment." William J. Templeman Co. v. United States Fidelity & Guaranty Co., 317 Ill.App.3d 764, 769, 250 Ill.Dec. 886, 739 N.E.2d 883 (2000).

II. Issues of Material Fact

Defendants assert that the circuit court "made numerous factual determinations and failed to consider numerous relevant factual issues." Specifically, defendants argue that the following issues of material fact exist: (1) whether defendants were the subject of a departmental investigation; (2) whether the Department needed the records for the investigation; (3) whether the public was at any risk of harm from the defendants; (4) whether the Department needed the patient files to protect the public from a risk of harm from the defendants; and (5) whether the Department was unable to obtain consent from the patients to release the files.

We first note that defendants themselves filed a cross-motion for summary judgment and thereby agreed, at least ostensibly, that only a question of law exists. Fremont Casualty Insurance Co. v. Ace-Chicago Great Dane Corp., 317 Ill. App.3d 67, 73, 250 Ill.Dec. 624, 739 N.E.2d 85 (2000); Kopier v. Harlow, 291 Ill. App.3d 139, 141, 225 Ill.Dec. 368, 683 N.E.2d 536 (1997). While defendants strenuously deny they filed such a motion, defendants' cross-motion for summary judgment was contained in their "response brief" to plaintiff's motion for summary judgment. The conclusion to defendants' "response brief" states:

"[T]he Department's Motion for Summary Judgment should be denied. Moreover, because the sole basis for the Department's complaint is to compel the production of those documents, Drs. Manos and Kolozenski are entitled to summary judgment as a matter of law.

WHEREFORE, for the foregoing reasons, Defendants, Drs. Manos and Kolozenski respectfully request that the Court deny the Department's Motion for Summary Judgment, enter summary judgment on behalf of Drs. Manos and Kolozenski on the Department's complaint, and award Drs. Manos and Kolozenski whatever other further relief the Court deems appropriate."

Defendants' protestations aside, if it reads like a cross-motion for summary judgment, sounds like a cross-motion for summary judgment and seeks cross-relief of summary judgment as a matter of law, it can come as no surprise to defendants that this court, after reviewing all the filings in this case, section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2000)) and Illinois Supreme Court Rules 191 and 192 (134 Ill.2d Rs. 191, 192), concludes that defendants presented a cross-motion for summary judgment. However, "the mere filing of cross-motions for summary judgment does not require that [we] grant the requested relief to one of the parties where genuine issues of fact exist precluding summary judgment in favor of either party." Travelers Insurance...