During the discovery of this lawsuit, Scarlett Palm argued that she was entitled to the medical records of defendant Ruben Holocker based on the exception to the physician-patient privilege for “action brought by or against the patient . . . wherein the patient’s physical and mental condition is an issue.” 735 ILCS 5/8-802(4).
She was injured when she was struck by the vehicle driven by Holocker when she stepped into a crosswalk. Palm invoked the “at issue” exception based on evidence that, in the 20 years before Holocker allegedly injured Palm, he was involved in seven or eight auto accidents; he also accumulated a dozen traffic tickets; and, because of his diabetes, he had to submit a physician’s “letter of approval” to qualify for a driver’s license.
The trial court agreed with Palm and granted her motion for permission to subpoena Holocker’s records from his physician — identified by the Illinois Appellate Court as “Dr. Nau” – and the Illinois secretary of state.
Based on the “at issue” exception, the order also commanded Holocker to answer interrogatories that asked him for “the name and address of any physician, ophthalmologist, optician or other health care professional who performed any eye examination on you within the last five years” and “the name and address of any physician or other health care professional who examined and/or treated you within the last ten years and the reason for such examination and/or treatment.”
To challenge this order through an immediate appeal from a contempt sanction, Holocker’s attorney, Karl Bayer, respectfully declined to answer the interrogatories. On appeal from a $5 a day sanction, Bayer argued “Holocker’s statutory physician-patient privilege protects his private medical information from discovery unless he affirmatively places his physical and mental health at issue.”
When the case reached the Illinois Appellate Court 3rd District, it reversed the decision of the trial judge. “We agree with contemnor that Section 8-802(4) applies only where a defendant affirmatively presents evidence that places his or her health at issue.”
“Neither the nature of a plaintiff’s cause of action nor factual allegations in a plaintiff’s complaint waive a defendant’s physician-patient privilege. A plaintiff cannot waive someone else’s privilege by merely filing a lawsuit or making certain allegations.” Accordingly, the appeals panel reversed the circuit court’s discovery order. On remand, the court shall order Palm’s counsel to promptly relinquish the possession of Holocker’s medical records from all sources in a manner the court deems sufficient to protect his privacy.
Palm v. Holocker, 2017 IL App (3d) 170087 (Dec. 11, 2017).
Kreisman Law Offices has been handling catastrophic injury lawsuits, work injury cases, construction site injury lawsuits, nursing home negligence lawsuits, truck accident cases, car accident cases, bicycle accident cases and motorcycle accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Blue Island, Oak Lawn, Harvey, Calumet City, Morton Grove, Des Plaines, Harwood Heights, Franklin Park, Frankfort, Bloomingdale, Berwyn, Lisle, Midlothian, Lynwood, Markham, Matteson, Maywood, East Hazel Crest, Broadview, Bedford Park, Hanover Park, Lemont, Orland Park, Sauk Village, Steger and South Holland, Ill.
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