Reda v. Advocate Health Care

• Decision Date: 22 February 2002
• Docket Number: No. 90487.,90487.
• Parties: Emilio REDA et al. (Susan Capra, Contemnor-Appellant), v. ADVOCATE HEALTH CARE et al., Appellees.
• Court: Illinois Supreme Court

765 N.E.2d 1002

199 Ill.2d 47

262 Ill.Dec. 394

Emilio REDA et al. (Susan Capra, Contemnor-Appellant), v. ADVOCATE HEALTH CARE et al., Appellees.

No. 90487.

Supreme Court of Illinois.

February 22, 2002.

Robert P. Sheridan, Chicago, for appellant.

Cassiday, Schade & Gloor, of Chicago (James W. Kopriva, Donald F. Ivansek and Morgan M. Strand, of counsel), for appellees Lutheran General Hospital and T. Cappello.

Iwan, Cray, Huber, Horstman & VanAusdal, L.L.C., of Chicago (James K. Horstman and Rodney E. VanAusdal, of counsel), for appellee Melvin P. Katz.

Hegarty & Heath, of Chicago (Timothy W. Heath, of counsel), for amicus curiae Illinois Trial Lawyers Association.

Justice FREEMAN delivered the opinion of the court:

During discovery in a medical malpractice action, the circuit court of Cook County twice ordered plaintiffs, Emilio and Mary Reda, to disclose Emilio's psychiatric records to defendants, Advocate Health Care, formerly doing business as Lutheran General Hospital, Inc. (hospital); Dr. Theresa Cappello; and Dr. Melvin Katz. Plaintiffs' attorney, Susan Capra, refused, invoking the mental health therapist-patient privilege under the Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 2000)). The court held Capra in civil contempt for refusing to comply with its discovery orders.

The appellate court, inter alia, upheld the disclosure of Emilio's psychiatric records. 316 Ill.App.3d 1115, 250 Ill.Dec. 189, 738 N.E.2d 153. We allowed Capra's petition for leave to appeal. 177 Ill.2d R. 315(a). We now reverse the appellate and circuit courts, and remand the cause to the circuit court for further proceedings.

BACKGROUND

Plaintiffs' first amended complaint alleged as follows. On June 6, 1994, Emilio was admitted to the hospital, coming under its care and the care of Drs. Cappello and Katz, for the treatment of arthritis in his right knee. That day, Dr. Katz performed a total right knee arthroplasty, i.e., knee replacement. As a result of the surgery, Emilio developed an acute thrombosis of the popliteal artery in his right leg. Defendants failed in several respects to timely diagnose and treat this worsening condition. As a proximate result of defendants' negligence, Emilio "sustained injuries of a personal and pecuniary nature." Emilio sought recovery for these injuries (count I), and as a result of Emilio's injuries, Mary sought recovery for the loss of Emilio's society, companionship, and affection (count II). In their answers, defendants denied that plaintiffs were injured as alleged.

In subsequent interrogatories, Dr. Katz and the hospital each asked Emilio to specify his claimed injuries. Emilio answered each interrogatory as follows:

"I am not a medical doctor. Thus, I can only state what I believe my problems are in laymen's terms. As a result of the occurrence, I suffered severe injuries to my leg (toes amputated and calf muscle removed) which have resulted in disability, disfigurement, pain and suffering. I also suffered a stroke, heart problems and kidney problems. I would refer you to the Lutheran General Hospital records for details; Investigation continues."

We note that Emilio's hospital records were not included in the record on appeal.

Plaintiffs filed their current complaint on December 17, 1996. During pretrial discovery, defendants requested from Dr. Samuel DeLisi Emilio's treatment records. Dr. DeLisi refused, explaining that Emilio had not authorized their release. Plaintiffs objected to defendants' discovery request, invoking the mental-health therapist-patient privilege. On November 14, 1997, defendants Cappello and the hospital moved to compel Emilio to authorize the release of his psychiatric records from Dr. DeLisi.

On January 19, 1998, Emilio and Mary each testified at a discovery deposition. During Emilio's deposition, attorneys from both sides agreed that questions regarding Dr. DeLisi's psychiatric treatment of Emilio would be deferred pending resolution of the motion to compel. The record contains the following pertinent excerpts from Emilio's deposition:

"Q. [Defense counsel] All right. My question related to whether any doctor told you that you had sustained any type of stroke. * * * Did someone tell you that or use those terms?

A. I don't know about if I sustained stroke damage, but he said I had brain—he determined I had brain damage. He gave me a puzzle to work out, 17 pieces. I couldn't put the puzzle together. Then, he did a couple other tests.

And in more polite terms, he classified me one step above an idiot.

* * *

Q. Okay. At Lutheran General Hospital, did any physician or doctor tell you that you had a stroke, of any type?

* * *

A. Not that I remember.

* * *

Q. And then, you've told us a little bit about your headaches. I want to ask you just a few more questions about that.

How frequently do you have headaches, nowadays, in general? Is it like every day, every couple of days?

A. Sir, them headaches have not gone away. I had Dr.—the shrink, I kept accusing him—

MS. CAPRA: We're not going to talk about him.

THE WITNESS: Okay. I'm sorry."

During defense counsel's questioning of Emilio regarding his headaches, the following colloquy occurred:

"Q. * * * When did you start having those headaches?

A. I can't remember how far back they were, if they were there all the time. I don't remember, sir.

Q. Did you have any headaches like the ones you've just described for me before you went to Lutheran General for your surgery?

A. No, sir. I never had—I wouldn't even take aspirins for anything. I didn't believe in any medication for the head. I never took nothing.

Q. Do you take anything for the headaches now?

A. I don't take them for the headaches. I take them more for the heart and—I will not take medicine for headaches, sir."

During Mary's deposition, defense counsel questioned her regarding, inter alia, Emilio's injuries. Answering their questions, Mary testified regarding Emilio's comprehension following the surgery. She testified that Emilio was not able to perform many tasks, e.g., operating a shower faucet and cutting his food with a knife. Mary also testified that Emilio was "very emotional" and "very frustrated." Mary also referred to Emilio's lack of affection subsequent to the surgery. She testified: "He's—he can be very mean, extremely mean. And I'm always at fault. I make wrong decisions, everything. It's a hard situation. Sometimes I want to go crawl under the bed and stay there for ten days."

On February 20, 1998, the circuit court denied, without prejudice, the motion to compel production of Emilio's psychiatric records. The court did not have before it plaintiffs' deposition testimony. On April 7, 1998, based on plaintiffs' depositions, Dr. Cappello and the hospital sought rehearing on their motion to compel. On August 20, 1998, the circuit ordered plaintiffs to submit Emilio's psychiatric records to the court for an in camera inspection. On November 5, 1998, the court ordered plaintiffs to disclose Emilio's psychiatric records to defendants. On March 17, 1999, the court denied plaintiffs' motion to vacate the disclosure order and again ordered plaintiffs to disclose Emilio's psychiatric records to defendants.

On April 6, 1999, the circuit court held plaintiffs' attorney, Susan Capra, in civil contempt for refusing to comply with the court's discovery orders. The court fined Capra $100 plus $10 per day until Capra disclosed Emilio's psychiatric records to defendants.

The appellate court, with one justice dissenting, upheld the disclosure of Emilio's psychiatric records. The court concluded that, under the Act, Emilio had placed his mental condition at issue in this litigation. 316 Ill.App.3d at 1118-19, 250 Ill.Dec. 189, 738 N.E.2d 153. Further, the appellate court upheld the circuit court's determination that the remaining statutory requirements for disclosure were met. 316 Ill. App.3d at 1119, 250 Ill.Dec. 189, 738 N.E.2d 153. The appellate court also vacated the circuit court's order of contempt against Capra, finding that Capra was not contemptuous of the circuit court, but rather had subjected herself to a contempt finding only to secure appellate review of the circuit court's disclosure orders. 316 Ill.App.3d at 1119, 250 Ill.Dec. 189, 738 N.E.2d 153.

The dissent concluded that Emilio had not placed his mental condition at issue in the medical malpractice action. Rather, the dissent opined, plaintiffs merely answered defense counsel's questions during their depositions, and that their truthful answers did not give rise to disclosure under the Act. 316 Ill.App.3d at 1119-20, 250 Ill.Dec. 189, 738 N.E.2d 153 (South, J., dissenting).

Capra appeals from the judgment of the appellate court. We granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiffs. 155 Ill.2d R. 345.

DISCUSSION

I. Scope and Standard of Review

Because discovery orders are not final orders, they are not ordinarily appealable. Norskog v. Pfiel, 197 Ill.2d 60, 69, 257 Ill.Dec. 899, 755 N.E.2d 1 (2001). Rather, they are reviewable on appeal from the final judgment. People ex rel. Scott v. Silverstein, 87 Ill.2d 167, 171, 57 Ill.Dec. 585, 429 N.E.2d 483 (1981). However, it is well settled that a contempt proceeding is an appropriate method for testing the correctness of a discovery order. Norskog, 197 Ill.2d at 69,257 Ill.Dec. 899,755 N.E.2d 1; People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 189, 226 N.E.2d 6 (1967) (collecting cases); Lewis v. Family Planning Management, Inc., 306 Ill.App.3d 918, 922, 240 Ill.Dec. 56, 715 N.E.2d 743 (1999). When an individual appeals from a contempt sanction imposed for violating, or threatening to violate, a discovery order, the contempt finding is final and appealable and presents to the reviewing court the propriety of that discovery order. See Norskog, 197 Ill.2d at 69,257 Ill.Dec. 899,755 N.E.2d 1; Silverstein, 87...