                                     2018 IL 123152



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS




                                   (Docket No. 123152)

                 SCARLETT PALM, Appellant, v. RUBEN HOLOCKER
                            (Karl Bayer, Appellee).


     Opinion filed December 13, 2018.—Modified Upon Denial of Rehearing February
                                      28, 2019.



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

        Chief Justice Karmeier and Justices Kilbride, Garman, Burke, Theis, and
     Neville concurred in the judgment and opinion.



                                        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. 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.”




                                             -2-
     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




                                             -3-
          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




                                                -4-
       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. 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 apply in any litigation. 2017 IL App (3d)
       170087, ¶ 22. The court held that section 8-802(4) applies only when a defendant
       affirmatively places his or her health at issue and that a plaintiff cannot waive
       someone else’s privilege. Id. ¶ 24. Relying on Kraima v. Ausman, 365 Ill. App. 3d
       530, 536 (2006), and Pritchard v. SwedishAmerican Hospital, 191 Ill. App. 3d 388,




                                                -5-
       405 (1989), the court held that “[n]either the nature of a plaintiff’s cause of action
       nor factual allegations in a plaintiff’s complaint waive a defendant’s
       physician-patient privilege.” 2017 IL App (3d) 170087, ¶ 24. The court noted that
       Illinois Supreme Court Rule 215(d)(1) (eff. Mar. 28, 2011), which addresses when
       a court may order a party to undergo a mental or physical exam, provides that a
       court may do so when a party’s “ ‘mental or physical condition’ ” is “ ‘placed in
       issue.’ ” 2017 IL App (3d) 170087, ¶ 23. The committee comments provide that
       “ ‘[m]ere allegations are insufficient to place a party’s mental or physical condition
       in “issue.” ’ ” (Emphasis omitted.) Id. (quoting Ill. S. Ct. R. 215(d) Committee
       Comments (adopted Mar. 28, 2011)). The court inferred from this that “in issue”
       does not mean “relevant.” Id. 1

¶ 13       Thus, the court determined that defendant’s medical records were privileged
       and that he had not placed his physical or mental condition at issue. The court
       determined that defendant’s medical condition had no bearing on his liability
       because “he either drove negligently or he did not.” Id. ¶ 26. The court explained
       that if defendant “possessed a valid license and operated his vehicle as a reasonably
       prudent person would, then he is not liable for [plaintiff’s] injuries regardless of his
       health or vision. If [defendant] drove negligently and proximately caused
       [plaintiff’s] injuries, then he is liable.” Id. Because defendant had not affirmatively
       placed his health in issue, the court determined that the interrogatory answers were
       not likely to lead to discoverable information. Id. ¶ 29. Thus, the court reversed the
       circuit court’s discovery order, ordered plaintiff’s counsel to relinquish any of
       defendant’s medical records that he had obtained, and vacated the contempt order. 2
       Id. ¶¶ 29, 31.

¶ 14      We allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Nov. 1,
       2017).



           1
              We note that Rule 215(d)(1) does not merely use the phrase “in issue” but rather sets forth how
       something becomes “an issue” for purposes of the rule. See Illinois Supreme Court Rule 215(d)(1)
       (eff. Mar. 28, 2011) (explaining that the court may order a physical or mental examination of a party
       “where conflicting medical testimony, reports or other documentation has been offered as proof and
       the party’s mental or physical condition is thereby placed in issue”).
             2
              Plaintiff’s counsel explained at oral argument that he had obtained all of defendant’s medical
       records that he needs. Counsel explained that, because Lacon is a small town, he was able to learn
       from people in the community which doctors and optometrists defendant has seen.




                                                       -6-
¶ 15       On December 13, 2018, this court filed an opinion affirming the appellate
       court’s judgment as modified. Our opinion declined to reach the issue of whether a
       plaintiff may waive a defendant’s physician-patient privilege by putting a
       defendant’s physical or mental condition at issue because, on the record before us,
       plaintiff had not put defendant’s physical or mental condition at issue. Thus, we
       held that plaintiff was properly ordered to relinquish defendant’s medical records.
       However, we modified the appellate court’s judgment to allow plaintiff to keep the
       records she had obtained from the Secretary of State. Plaintiff then filed a petition
       for rehearing in which she raised two issues. First, plaintiff claimed that this court
       had no jurisdiction to order her to relinquish defendant’s medical records because
       she had obtained these while the case was on appeal. The records were obtained
       pursuant to the HIPAA order, which was not part of this appeal. Accordingly,
       plaintiff insisted that the court had no jurisdiction to order her to relinquish these
       records. 3 Second, plaintiff argued that this court erred in failing to address the fact
       that defendant was using the HIPAA order to subpoena plaintiff’s medical records.
       This is the same order over which plaintiff insists that the court does not have
       jurisdiction.

¶ 16       Through documents provided with plaintiff’s petition for rehearing, this court
       now has a clearer picture of the procedural state of this case and of how plaintiff
       obtained defendant’s medical records. As set forth above, the parties did not limit
       their arguments in the appellate court to the two interrogatories that formed the
       basis of the contempt order. Rather, they briefed and argued the broader question of
       whether section 8-802(4) applies at all in this case. This statute applies when a
       physician or surgeon is asked to disclose medical information, which is something
       that had not yet happened in this case. Nevertheless, the appellate court decided to
       resolve the case the way the parties briefed it, for the reason that plaintiff would
       eventually seek to subpoena defendant’s medical records. 2017 IL App (3d)
       170087, ¶¶ 15-16. Plaintiff understood this when she brought the case here for
       further review.

¶ 17       While the case was on appeal and the appellate court was being asked by both
       parties to resolve the question of whether section 8-802(4) applied to this case,

           3
             At oral argument, plaintiff’s counsel represented to this court that his possession of these
       records was the very reason the court should reach the question of section 8-802(4)’s applicability to
       this case and argued that the court would not be rendering an advisory opinion by doing so.




                                                       -7-
       plaintiff went ahead and subpoenaed defendant’s medical records. Defendant
       moved to strike the subpoenas on the basis that the appellate court was currently
       deciding the issue and that plaintiff was attempting to backdoor the entire
       proceeding while waiting for the appellate court to rule. Defendant asked the trial
       court to strike the subpoenas until such time as the appellate court reversed the trial
       court’s decision or the supreme court ruled in the matter. The trial court denied the
       motion and then denied defendant’s request for Rule 304(a) language. 4 Plaintiff
       obtained defendant’s medical records and then prepared an amended complaint
       based on the information she learned from those records.

¶ 18       So this is the procedural state we now find ourselves in. This court has issued an
       opinion holding that neither party has put defendant’s medical condition in issue
       and thus the exception to the physician-patient privilege found in section 8-802(4)
       does not apply. Therefore plaintiff should not be able to access defendant’s medical
       records. In the meantime, while that issue was on appeal, the trial court allowed
       plaintiff to subpoena those very records, and now plaintiff has prepared an
       amended complaint based on information contained in those records. Given this,
       we believe the most appropriate course of action is to modify our original opinion
       to address the issue that plaintiff originally brought to this court, but which we
       declined to address—whether a plaintiff may put a defendant’s physical or mental
       condition at issue so as to waive the defendant’s physician-patient privilege.


¶ 19                                             ANALYSIS

¶ 20       Section 8-802 of the Code of Civil Procedure provides that “[n]o physician or
       surgeon shall be permitted to disclose any information he or she may have acquired
       in attending any patient in a professional character, necessary to enable him or her
       professionally to serve the patient.” 735 ILCS 5/8-802 (West 2016). The statute
       then lists 14 situations in which the privilege does not apply. The physician-patient
       privilege exists to encourage disclosure between a doctor and a patient and to
       protect the patient from invasions of privacy. See Reagan v. Searcy, 323 Ill. App.
       3d 393, 395 (2001). The purpose of the privilege is to encourage full disclosure of
           4
            It is not clear whether the trial court was aware that the appellate court was being asked to
       resolve the broader question of whether section 8-802(4) applied at all in this case, rather than the
       narrower question of whether defense counsel was properly held in contempt for failing to provide
       answers to two interrogatories.




                                                      -8-
       all medical facts by the patient in order to ensure the best diagnosis and outcome for
       the patient. See People v. Wilber, 279 Ill. App. 3d 462, 467 (1996). The legislature
       has recognized that patients have an interest in maintaining confidentiality in their
       medical dealings with physicians. People v. Florendo, 95 Ill. 2d 155, 158 (1983).

¶ 21       Resolution of this appeal turns on the meaning of “an issue” in section
       8-802(4), which provides that the privilege does not apply in any action wherein
       “the patient’s physical or mental condition is an issue.” 735 ILCS 5/8-802(4) (West
       2016). The cardinal rule of statutory construction is to ascertain and give effect to
       the legislature’s intent. Bank of New York Mellon v. Laskowski, 2018 IL 121995,
       ¶ 12. The most reliable indicator of legislative intent is the language of the statute,
       given its plain and ordinary meaning. Id. It is improper for a court to depart from
       the plain statutory language by reading into the statute exceptions, limitations, or
       conditions that conflict with the clearly expressed legislative intent. Metropolitan
       Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18. Where statutory language is
       clear and unambiguous, it will be given effect without resort to other aids of
       construction. Kunkel v. Walton, 179 Ill. 2d 519, 534 (1997). If the meaning of an
       enactment is unclear from the statutory language, the court may consider the
       purpose behind the law and the evils the law was designed to remedy. Gruszeczka
       v. Illinois Workers’ Compensation Comm’n, 2013 IL 114212, ¶ 12. The statute
       should be read as a whole and construed so as to give effect to every word, clause,
       and sentence; we must not read a statute so as to render any part superfluous or
       meaningless. People ex rel. Department of Corrections v. Hawkins, 2011 IL
       110792, ¶ 23. Words and phrases must be interpreted in light of other relevant
       provisions of the statute and must not be construed in isolation. People ex rel.
       Sherman v. Cryns, 203 Ill. 2d 264, 279-80 (2003). We have an obligation to
       construe statutes in a manner that will avoid absurd, unreasonable, or unjust results
       that the legislature could not have intended. People ex rel. Alvarez v. Gaughan,
       2016 IL 120110, ¶ 19. Statutes in derogation of the common law are to be strictly
       construed in favor of persons sought to be subjected to their operation. Nowak v.
       City of Country Club Hills, 2011 IL 111838, ¶ 19. Our review is de novo. Id. ¶ 11.

¶ 22       Plaintiff argues that the appellate court impermissibly added language to
       section 8-802(4). Plaintiff points out that this section merely requires that the
       patient’s physical or mental condition be “an issue” and it does not say that only the
       patient may put his or her medical condition at issue. Plaintiff contends that “in




                                                -9-
       issue” is synonymous with “relevant.” Thus, plaintiff contends that section
       8-802(4) simply means that medical records may be disclosed in any action in
       which a party has a relevant physical or mental condition. Plaintiff further points
       out that the appellate court did not discuss any of the opinions filed after Kraima
       and Pritchard in which the courts have applied section 8-802(4) when the State has
       put a defendant’s medical condition in issue. See People v. Beck, 2017 IL App (4th)
       160654 (postaccident medical records in aggravated driving under the influence
       (DUI) proceeding); People v. Botsis, 388 Ill. App. 3d 422 (2009) (medical records
       in reckless homicide proceeding); People v. Popeck, 385 Ill. App. 3d 806 (2008)
       (postaccident medical records in DUI proceeding); In re Detention of Anders, 304
       Ill. App. 3d 117 (1999) (mental health evaluation in Sexually Violent Persons
       Commitment Act (725 ILCS 207/1 et seq. (West Supp. 1997)) proceeding); People
       v. Nohren, 283 Ill. App. 3d 753 (1996) (blood test results in DUI proceeding);
       Wilber, 279 Ill. App. 3d 462; (postaccident statements to paramedics in aggravated
       DUI proceeding); People v. Krause, 273 Ill. App. 3d 59 (1995) (postaccident
       statements to paramedics in aggravated DUI proceeding).

¶ 23        Defendant responds by arguing that civil and criminal cases have separate rules
       for how a patient’s physical or mental condition becomes “an issue” for purposes of
       section 8-802(4). Defendant contends that, in a civil case, the exception applies
       only when a party puts his or her own physical condition at issue by affirmative
       pleading. Thus, a plaintiff who files a personal injury action necessarily puts his or
       her own physical or mental condition at issue, and a defendant in a civil case puts
       his or her own physical or mental condition at issue by asserting it as part of a
       defense. By contrast, in criminal cases, something may become “an issue” if the
       legislature has made it an element of the offense. 5 This is how defendant reconciles
       these disparate lines of cases. Defendant explains In re Detention of Anders, 304
       Ill. App. 3d 117, by arguing that the criminal rule would apply in a Sexually Violent
       Persons Commitment Act proceeding because the respondent’s mental condition is
       the subject of the commitment proceedings.
           5
            Defendant’s theory does not work for all of the cases. For instance, a defendant’s physical or
       mental condition is not an element of the offense of reckless homicide. See 720 ILCS 5/9-3(a) (West
       2016). What the court held in Botsis was that the defendant’s medical condition was an issue
       because it was relevant to the issue of recklessness. Botsis, 388 Ill. App. 3d at 435. But this is
       precisely the definition of “an issue” that the appellate court rejected here. See 2017 IL App (3d)
       170087, ¶¶ 22-23 (explaining that “an issue” in section 8-802(4) does not mean “relevant”).
       Defendant also categorically rejects the argument that “an issue” means “relevant.”




                                                     - 10 -
¶ 24        Plaintiff points out, however, that section 8-802(4) makes no distinction
       between civil and criminal cases and simply uses the language “in all actions.” In
       other subsections of section 8-802, the legislature used language such as “in trials
       for homicide” (735 ILCS 5/8-802(1) (West 2016)), “in actions, civil or criminal”
       (id. § 8-802(2), (7)), “in any criminal action” (id. § 8-802(6)), “in prosecutions” (id.
       § 8-802(9), (10)), and “in criminal actions” (id. § 8-802(11)). Thus, the legislature
       was very specific when it wanted to draw a distinction between civil and criminal
       cases, and subsection (4) contains no such distinction. 6 Indeed, subsection
       (6) makes defendant’s interpretation problematic. This exception provides that
       medical records may be disclosed “in any criminal action where the charge is either
       first degree murder by abortion, attempted abortion or abortion.” Id. § 8-802(6). If
       subsection (4) made medical records discoverable in all criminal actions wherein a
       defendant’s physical condition is an element of the offense, then subsection
       (6) would seem to be superfluous. Thus, contrary to defendant’s argument, there
       seems to be a genuine conflict between how the courts have applied subsection
       (4) in civil and criminal cases. In civil cases, the courts have held that only the
       patient may waive his or her own privilege by putting his or her physical or mental
       condition at issue, while in the criminal context, the courts have allowed the State
       to waive a defendant’s privilege by putting his or her physical or mental condition
       at issue.

¶ 25       It appears that an overwhelming majority of courts have agreed with the
       appellate court below that a plaintiff may not waive a defendant’s privilege by
       putting the defendant’s medical condition at issue. In Griego v. Douglas, No. CIV
       17-0244 KBM/JHR, 2018 WL 2376330 (D. N.M. May 24, 2018), a federal district
       court was confronted with this issue. Griego was a wrongful death case arising out
       of a traffic accident in which the plaintiffs wanted access to the defendant’s medical
       records. The plaintiffs had alleged in the suit that the defendant had failed to yield
       the right of way, made an improper turn, and was inattentive while driving. Id. at
       *1. The plaintiffs contended that the defendant’s overall medical condition and

           6
             In the previous version of the statute, there was no question that subsection (4) applied only to
       civil cases. Subsection (4) previously read, “in all civil suits brought by or against the patient, his
       personal representative, a beneficiary under a policy of insurance, or the executor or administrator
       of his estate wherein the patient’s physical or mental condition is an issue.” Ill. Rev. Stat. 1981, ch.
       51, ¶5.1(4). When this section was recodified as part of the Illinois Compiled Statutes, “civil suits”
       was replaced with “actions.” See 735 ILCS 5/8-802(4) (West 2016).




                                                       - 11 -
       especially his quality of vision were highly relevant to whether he was negligent.
       The plaintiffs further contended that the defendant’s medical condition was at issue
       because he was over 75 and drivers in New Mexico over that age are required to
       provide a physician’s report when renewing a driver’s license. Id. at *2. The
       defendant did not rely on a medical condition as part of his defense. Rather, he
       simply denied liability. Id. at *1.

¶ 26        Before turning to the specific provisions of New Mexico law, the court
       conducted a survey of how the various states had dealt with this issue. The court
       concluded that “[m]ost courts that have addressed the matter have found that a
       defendant’s medical records are privileged, and that a defendant does not waive the
       privilege merely by driving, denying fault, or asserting comparative negligence.”
       Id. at *5. 7 The only state the court could find that had held that a plaintiff could put
       a defendant’s physical condition at issue so as to waive the defendant’s privilege
       was North Carolina. Id. at *6. The court then considered New Mexico law and
       noted that “the physician-patient privilege has enjoyed considerable deference,
       with substantial protection provided to all but those patients who explicitly waived
       it.” Id. at *7. The court noted that New Mexico had even gone so far as holding that
       in a DUI prosecution a defendant did not waive the privilege by pleading not guilty.
       Id. at *6 (citing State v. Roper, 921 P.2d 322, 326 (N.M. Ct. App. 1996). The court
       thus determined that the plaintiffs were not entitled to a general release of the
       defendant’s medical records:

               “In summary, the general rule is that a defendant driver in a civil case does
           not waive the physician-patient privilege simply by denying fault or asserting
           comparative negligence. Additionally, the general rule is that a plaintiff may
           not effect a waiver of a defendant’s privilege even where there is evidence that
           the defendant may have been impaired at the time of the collision.” (Emphases
           in original). Id. at *7.

       See also Chung v. Legacy Corp., 548 N.W.2d 147, 150 (Iowa 1996) (collecting
       cases); Muller v. Rogers, 534 N.W.2d 724, 726 (Minn. Ct. App. 1995) (“Muller has

           7
            See also 1 Kenneth S. Broun et al., McCormick on Evidence § 103, at 633 (7th ed. 2013)
       (“With respect to defenses, a distinction is clearly to be seen between the allegation of a physical or
       mental condition, which will effect the waiver, and the mere denial of such a condition asserted by
       the adversary, which will not.”).




                                                       - 12 -
       cited no statute or caselaw, and our research has disclosed none, holding that a
       plaintiff may place a defendant’s physical condition in controversy and thereby
       effect a waiver of the defendant’s medial privilege by asserting that the defendant
       was impaired on the day of the accident.” (Emphases in original.)).

¶ 27       We note, however, that the issue was much easier for Griego than it is for us.
       The New Mexico rule words the relevant exception to the physician-patient
       privilege as follows:

          “If a patient relies on a physical, mental, or emotional condition as part of a
          claim or defense, no privilege shall apply concerning confidential
          communications made relevant to that condition.” N.M. S. Ct. R. 11-504(D)(3)
          (eff. Dec. 31, 2013).

       Section 8-802(4) simply provides that the privilege does not apply in any action in
       which a patient’s medical condition is “an issue.” As Griego noted, North Carolina
       has taken the opposite view and held that a plaintiff may put a defendant’s medical
       condition at issue so as to waive the defendant’s privilege. But the North Carolina
       cases are not particularly helpful because the North Carolina statute does not
       contain a list of exceptions where the privilege does not apply. Rather, after stating
       the privilege, the statute provides that

          “Any resident or presiding judge in the district, either at the trial or prior
          thereto, or the Industrial Commission pursuant to law may, subject to G.S.
          8-53.6, compel disclosure if in his opinion disclosure is necessary to a proper
          administration of justice.” N.C. Gen. Stat. § 8-53 (2017).

       Thus, when a plaintiff has put a defendant’s medical condition at issue, the North
       Carolina courts have relied on this provision to hold that a trial court did not abuse
       its discretion in ordering the production of the defendant’s medical records. See
       Roadway Express, Inc. v. Hayes, 631 S.E.2d 41, 45-46 (N.C. Ct. App. 2006).

¶ 28       The legislature’s intent in enacting section 8-802(4) is not clear, and the cases
       interpreting that section are inconsistent in applying it. For the following reasons,
       we agree with defendant’s interpretation of the statute. First, as cases such as
       Griego and Chung have noted, there is near universal agreement among courts that
       the physician-patient privilege belongs to the patient and therefore only the patient




                                               - 13 -
       may waive it by putting his physical or mental condition at issue. As stated in
       McCormick on Evidence, “a patient voluntarily placing his or her physical or
       mental condition in issue in a judicial proceeding waives the privilege with respect
       to information relative to that condition.” (Emphasis added). 1 Kenneth S. Broun et
       al., McCormick on Evidence § 103, at 631 (7th ed. 2013). In Petrillo v. Syntax
       Laboratories, Inc., 148 Ill. App. 3d 581 (1986), the appellate court explained that a
       patient can consent to the disclosure of his medical records in one of two ways:

               “The consent that is necessary before a patient’s confidences may be
           properly disclosed to third parties is, of course, two-fold in nature. The consent
           can take the form of an express consent (e.g. a written waiver) or it can be
           implied at law by the patient’s conduct. In this regard, we note that when a
           patient files suit, he implicitly consents to his physician releasing any of the
           medical information related to the mental or physical condition which the
           patient has placed at issue in the lawsuit ***.” Id. at 491.

       See also 1 Kenneth S. Broun et al., McCormick on Evidence § 103, at 632 (7th ed.
       2016) (“A claim for damages for personal injuries is of course the paradigm
       example, and will clearly waive the privilege in all jurisdictions where such waiver
       by filing is possible at all.”).

¶ 29       Second, plaintiff’s interpretation is problematic when viewed in context of the
       entire statute. If, as plaintiff insists, section 8-802(4) is a broadly applicable section,
       allowing disclosure in every case in which a patient’s medical condition is
       “relevant,” then other subsections of section 8-802 are redundant and unnecessary.
       For instance, subsections (6) (“in any criminal action where the charge is either first
       degree murder by abortion, attempted abortion or abortion”); (9) (“in prosecutions
       where written results of blood alcohol tests are admissible pursuant to section
       11-501.4 of the Illinois Vehicle Code” (625 ILCS 5/11-501.4 (West 2016))); and
       (10) (“in prosecutions where written results of blood alcohol tests are admissible
       under section 5-11a of the Boat Registration and Safety Act” (625 ILCS 45/5-11a,
       renumbered as 625 ILCS 45/5-16a (West 2016))) would seem to be unnecessary if
       subsection (4) allows the records to be disclosed in any proceeding in which the
       patient’s physical or mental condition is relevant. See 735 ILCS 5/8-802 (West
       2016). The sheer number of codified exceptions to the privilege suggests that
       section 8-802(4) must have a narrower scope than plaintiff contends.




                                                 - 14 -
¶ 30       Third, plaintiff’s interpretation renders the privilege virtually meaningless.
       Consider again what happened in this case. The plaintiff represented to the trial
       court that she had learned through a hearsay statement posted on Facebook that
       defendant is legally blind. Based on this representation, plaintiff was allowed to
       vitiate defendant’s privilege, and she now seeks to file an amended complaint based
       on the information found in defendant’s medical records. It is difficult to imagine
       that this is how the legislature intended section 8-802(4) to work. We note further
       that at the time plaintiff was allowed to obtain defendant’s medical records she had
       not even pleaded that defendant had a relevant medical condition. Although
       plaintiff construes “an issue” to mean relevant, the plain meaning of the term
       “issue” would at least require the condition to be pleaded. Webster’s defines
       “issue” as “a point in question of law or fact; specif : a single material point of law
       or fact depending in a suit that is affirmed by one side and denied by the other and
       that is presented for determination at the conclusion of the pleadings.” Webster’s
       Third New International Dictionary 1201 (1993); see also A Dictionary of Modern
       Legal Usage 470 (2d ed. 1995) (defining “facts in issue” as “facts that, in the
       pleadings, are affirmed on one side and denied on the other”). Black’s defines
       “issue” as “[a] point in dispute between two or more parties” (Black’s Law
       Dictionary 907 (9th ed. 2009)) and then quotes the following definition from
       Corpus Juris Secundum:

               “ ‘In federal civil procedure, an issue is a single, certain, and material point
          arising out of the allegations and contentions of the parties; it is matter affirmed
          on one side and denied on the other, and when a fact is alleged in the complaint
          and denied in the answer, the matter is then put in issue between the parties.’ ”
          Id. (quoting 35A C.J.S. Federal Civil Procedure § 357, at 541 (1960)).

       Nevertheless, even if plaintiff had pleaded a relevant medical condition, we do not
       believe that this is sufficient to waive defendant’s privilege. Allowing a plaintiff to
       put defendant’s medical condition at issue simply by making an allegation in a
       pleading would leave in place all of the problems discussed above. Such an
       interpretation would allow one party to waive another party’s privilege, and that
       interpretation would be problematic in light of other provisions of the statute.

¶ 31       Fourth, the courts have been consistent in holding that, in civil cases, only the
       patient may put his or her own medical condition at issue. See Kraima, 365 Ill.




                                               - 15 -
       App. 3d 530; Pritchard, 191 Ill. App. 3d 388. Although the legislature has amended
       section 8-802 numerous times since those decisions were issued, it has never
       amended subsection (4) in response to those decisions. As we explained in In re
       Marriage of Mathis, 2012 IL 113496, ¶ 25:

          “We assume not only that the General Assembly acts with full knowledge of
          previous judicial decisions, but also that its silence on this issue in the face of
          decisions consistent with those previous decisions indicates its acquiescence to
          them. See People v. Villa, 2011 IL 110777, ¶ 36 (‘the judicial construction of
          the statute becomes a part of the law, and the legislature is presumed to act with
          full knowledge of the prevailing case law and the judicial construction of the
          words in the prior enactment’).”

       Section 8-802 has been amended 10 times since Pritchard was decided and 8 times
       since Kraima was decided, and the legislature has not altered the language of
       subsection (4) in response to those decisions. Thus, we presume that the legislature
       has acquiesced in that interpretation. If the legislature disagrees with our
       interpretation, it is free to amend the statute.

¶ 32       Plaintiff raises policy concerns implicated by applying the statute in this matter,
       including that patients will be able to hide relevant medical conditions. But
       privileges by their very nature prevent relevant information from being disclosed.
       As the appellate court explained when applying the physician-patient privilege in
       House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437, 444 (1990):

              “In making our determination, we are aware that much of the information
          contained in the nonparty patient’s medical records would be relevant to the
          issue involved in this case. Unfortunately for plaintiff, the privilege involved in
          this case will often act to bar what is clearly relevant and material information.
          See [Laurent v. Breiji, 74 Ill. App.3d 214, 217 (1979)], (“[i]mplicit in every
          testimonial privilege is the assumption that the privileged matter may indeed be
          highly probative of the issues in dispute”).

       In Dillenbeck v. Hess, 536 N.E.2d 1126, 1133 (N.Y. 1989), the New York Court of
       Appeals stated:




                                               - 16 -
          “Moreover, the mere fact that the privilege presents an obstacle to plaintiffs’
          discovery of legally pertinent information that would assist them in proving
          their claim is not, as the dissent seems to suggest, evidence that the privilege is
          not properly recognized in this case. Indeed, it is inherent in the very nature of
          an evidentiary privilege that it presents an obstacle to discovery and it is
          precisely in those situations where confidential information is sought in
          advancing a legal claim that such privilege is intended to operate. Were we to
          carve out an exception to the privilege whenever it inhibited the fact-finding
          process, it would quickly become eviscerated.” (Emphasis added.)

       Thus, while we acknowledge that construing the statute in the manner defendant
       suggests will keep relevant information from the fact-finder, that is simply inherent
       in the nature of privileges, and it is not justification for construing the statute in a
       way to render the privilege virtually meaningless for parties to litigation. Pursuant
       to our authority under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we
       order plaintiff to relinquish the records obtained from defendant’s medical
       providers in a manner that will protect defendant’s privacy. As for plaintiff’s
       complaint that defendant has been using the HIPAA order to subpoena plaintiff’s
       medical records, we note that plaintiff put her physical condition at issue by filing a
       complaint for personal injuries. Any objections plaintiff has to the scope of
       defendant’s subpoenas are for the trial court to resolve.

¶ 33       In sum, the question facing this court is whether the legislature’s intent in
       enacting subsection (4) was to codify the near-universally recognized principle of
       waiver by implied consent or to enact a broadly applicable exception allowing the
       privilege to be vitiated any time a party’s medical condition is relevant. For the
       reasons set forth above, we believe it was the former. We acknowledge, however,
       the confusing wording of the statute when read as a whole, along with an arguable
       inconsistency in how some cases have applied this exception. We therefore call
       upon the legislature to address subsection (4) and to make its intentions clear. We
       express no opinion on those criminal cases that have held that subsection (4)
       applies when the legislature has made a party’s physical or mental condition an
       element of an offense, as that issue is not before us.

¶ 34      We further hold, however, that plaintiff does not have to relinquish Dr. Nau’s
       report that plaintiff obtained from the Secretary of State. We note that defendant




                                                - 17 -
       asserted the privilege only with respect to interrogatories 21 and 22. Defendant did
       not assert the privilege with respect to interrogatory 20 and instead disclosed the
       name of the doctor who provides the report that allows him to renew his driver’s
       license. As noted above, the purpose of the physician-patient privilege is to
       encourage full disclosure of all medical facts by the patient in order to ensure the
       best diagnosis and outcome for the patient. When a patient obtains a physician’s
       report in order to maintain his driving privileges, he is not seeking treatment.
       Courts have drawn on this distinction to hold that the physician-patient privilege
       does not apply to medical records used to obtain driving privileges.

¶ 35       For instance, in Muller, 534 N.W.2d 724, the court held that the defendant’s
       medical records were privileged in a wrongful death case arising out of a traffic
       accident because the defendant had simply denied liability and was not relying on a
       medical condition as part of his defense. The court held that a plaintiff may not
       place a defendant’s physical condition in controversy and thereby effect a waiver of
       the defendant’s privilege. Id. at 726. However, the court explained that the same
       consideration would not apply to records that the defendant had turned over to the
       Department of Public Safety for the “ ‘benefit of keeping a driver’s license or
       obtaining handicapped license plates.’ ” Id. at 727. The court explained that
       disclosing confidential information to third parties waives the privilege. Id. The
       court further explained that the privilege exists to protect confidential information
       acquired by a physician seeing a patient for the purpose of providing treatment and
       that the “purpose of the defendant’s disclosure to the Department of Public Safety
       was to obtain driving or licensing privileges, not to obtain medical treatment.” Id.;
       see also, e.g., Matysik v. Judd Transportation, L.L.C., No.
       1:14-cv-1889-TWP-DKL, 2016 WL 559217, at *1 (S.D. Ind. Feb. 2, 2016)
       (defendant’s medical records privileged in suit alleging that he suffered a medical
       condition that caused him to fall asleep at the wheel, but privilege does not extend
       to record of his department of transportation physical examination because it was
       for the purpose of “meeting federal regulatory requirements and not for purposes of
       diagnosis and treatment”); Jackson v. Wiersema Charter Service, Inc., No.
       4:08CV00027 JCH, 2009 WL 1798389, at *1 (E.D. Mo. June 24, 2009) (“[r]ecords
       pertaining to a [commercial driver’s license] medical examination are not within
       the scope of the physician-patient privilege”); State ex rel. Hayter v. Griffin, 785
       S.W.2d 590, 595-96 (Mo. Ct. App. 1990) (medical examination for purposes of
       satisfying federal regulations not within the scope of physician-patient privilege



                                              - 18 -
       because privilege extends only to information acquired by physician for purposes
       of prescribing and treatment); Clinton DeWitt, Privileged Communications
       Between Physician and Patient 104-05 (1958) (“As a general rule, the relationship
       of physician and patient does not exist unless the physician’s consultation with, or
       attendance upon, the prospective patient is with a view to protective, alleviative, or
       curative treatment. *** There is no privilege as to information acquired by a
       physician through the physical or mental examination of a person unless it is made
       in contemplation of, and as preparation for, medical care and treatment; hence, if
       the physician’s examination of, or conference with, the person is for a purpose
       other than prescribing or doing any act for him in the way of medical care or
       treatment, the physician is not disqualified as a witness and may disclose any
       information so acquired concerning such person, since the relation of physician and
       patient does not exist under such circumstances.”).

¶ 36       When asked about this at oral argument, counsel for contemnor argued that the
       rule is different in Illinois because Illinois has a statute providing that medical
       records turned over to the Secretary of State are confidential. Section 2-123(j) of
       the Illinois Vehicle Code (625 ILCS 5/2-123(j) (West 2016)) provides as follows:

          “Medical statements or medical reports received in the Secretary of State’s
          Office shall be confidential. Except as provided in this Section, no confidential
          information may be open to public inspection or the contents disclosed to
          anyone, except officers and employees of the Secretary who have a need to
          know the information contained in the medical reports and the Driver License
          Medical Advisory Board, unless so directed by an order of a court of competent
          jurisdiction. If the Secretary receives a medical report regarding a driver that
          does not address a medical condition contained in a previous medical report, the
          Secretary may disclose the unaddressed medical condition to the driver or his or
          her physician, or both, solely for the purpose of submission of a medical report
          that addresses the condition.” (Emphasis added.)

       See also id. § 6-908 (substantially similar).

¶ 37       This section, however, is substantially different from the physician-patient
       privilege found in section 8-802. The physician-patient privilege provides that
       information acquired by physicians and surgeons in attending patients may not be
       disclosed except in the specifically enumerated situations provided in the statute.



                                               - 19 -
       See 735 ILCS 5/8-802 (West 2016). By contrast, the relevant provisions of the
       Vehicle Code provide that medical information submitted to the Secretary of State
       or the Driver’s License Medical Advisory Board is confidential and may not be
       disclosed “unless so directed by an order of a court of competent jurisdiction.”
       (Emphasis added.) 625 ILCS 5/2-123(j) (West 2016); see id. § 6-908. These
       sections do not place any restrictions on a court’s ability to order the disclosure of
       the information. Thus, the Vehicle Code appears to leave it to the discretion of the
       court to determine when disclosure of the information is necessary. Here, defendant
       answered interrogatory number 20 instead of asserting a privilege. After defendant
       disclosed that Dr. Nau provided his physician’s report to the Secretary of State,
       plaintiff subpoenaed that report, and the trial court ordered the Secretary of State to
       comply with the subpoena. Defendant obtained Dr. Nau’s report not for the
       purposes of receiving treatment but for maintaining his driving privileges. A court
       of competent jurisdiction ordered the Secretary of State to comply with the
       subpoena, and this order was not part of the order appealed to the appellate court.
       Plaintiff is therefore entitled to use this record, and we modify the appellate court’s
       judgment accordingly.


¶ 38                                      CONCLUSION

¶ 39       Pursuant to section 8-802(4) of the Code of Civil Procedure, the
       physician-patient privilege does not apply in any action in which the patient’s
       physical or mental condition is “an issue.” We agree with the appellate court that
       “an issue” for purposes of this section means placed in issue by the patient.
       Additionally, we urge the legislature to address section 8-802(4) and to make its
       intentions clear. Specifically, the legislature should clarify how something
       becomes “an issue” for purposes of this section, whether one party may put another
       party’s physical or mental condition at issue, and if the rule is any different for civil
       and criminal cases.

¶ 40       For the above reasons, we affirm the appellate court’s decision, which
       (1) reversed the circuit court’s discovery order and (2) vacated the circuit court’s
       contempt order. We modify the appellate court’s judgment to provide that
       plaintiff’s counsel does not have to relinquish defendant’s medical records that he
       received from the Secretary of State. Pursuant to our authority under Supreme




                                                - 20 -
       Court Rule 366(a)(5) (eff. Feb. 1, 1994), we order plaintiff to relinquish the records
       obtained from defendant’s medical providers in a manner that will protect
       defendant’s privacy.


¶ 41      Appellate court judgment affirmed as modified.

¶ 42      Circuit court judgment affirmed in part and reversed in part.




                                               - 21 -
