                                         2014 IL App (1st) 123206
                                               No. 1-12-3206
                                         Opinion filed May 28, 2014
                                                                       Third Division
     ______________________________________________________________________________


     LOUISE DEPRIZIO, Plenary Guardian of the               )
     Estate and Person of LISA DEPRIZIO, a Disabled         )
     Person,                                                )
                                                            )
                                                                   Appeal from the Circuit Court
            Plaintiff and Cross-Appellee,                   )
                                                                   of Cook County.
                                                            )
     v.                                                     )
                                                            )
                                                                   No. 09 L 6426
     THE MacNEAL MEMORIAL HOSPITAL                          )
     ASSOCIATION,                                           )
                                                            )
                                                                   The Honorable
            Defendant-Appellee and Cross-Appellant          )
                                                                   Eileen Mary Brewer,
                                                            )
                                                                   Judge, presiding.
     (Other Defendants;                                     )
                                                            )
     (KEITH A. HEBEISEN,                                    )

           Contemnor-Appellant)).
     ______________________________________________________________________________

            PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Neville and Pucinski concurred in the judgment and opinion.


                                                   OPINION

¶1           The confidentiality privilege set out in the Mental Health and Developmental Disabilities

     Confidentiality Act (the Act) (740 ILCS 110/1 et seq. (West 2010)) comes before us after

     plaintiff’s counsel, for the second time, takes a “friendly” contempt. His refusal, unrelated to the

     earlier appeal, regards various records about the treatment of plaintiff's cognitive impairment

     reviewed by independent expert witnesses that plaintiff identified as testifying at trial. The issue

     involves the effect of Rule 213(f)(2) disclosures on the exercise of the confidentiality privilege

     created by the Act. Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007). MacNeal Memorial Hospital
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     Association cross-appeals, asserting that the trial court erred in limiting the extent of the

     disclosure of Deprizio's mental health records. We find no error and affirm.

¶2                                           BACKGROUND

¶3          Plaintiff Lisa Deprizio alleges she suffered from a lithium overdose as a patient at

     MacNeal Memorial Hospital in September 2002. She filed suit against MacNeal and her doctors

     in 2004, alleging medical negligence. In 2005, one of the defendant doctors filed a motion to

     compel production of records regarding Deprizio's psychological care in the decade leading up to

     her injury. Deprizio refused and claimed the material was protected under the Act. The trial court

     denied the motion to compel in part, but granted production of: (i) records pertaining to

     Deprizio's prescriptions, levels, and reactions to lithium; and (ii) mental health records from a

     defendant doctor who treated Deprizio after her alleged injury.

¶4          Deprizio's attorney, Keith Hebeisen, refused to produce the records, the court held him in

     contempt, and he appealed. We affirmed disclosure. Deprizio v. MacNeal Memorial Hospital

     Ass'n, No. 1-06-2909 (Sept. 19, 2008) (unpublished order under Supreme Court Rule 23). The

     supreme court denied Hebeisen's petition for leave to appeal. Deprizio v. MacNeal Memorial

     Hospital Ass'n, 231 Ill. 2d 630 (2009) (table).

¶5          On remand, Deprizio filed supplemental disclosures of her three independent expert

     witnesses. See Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007). Dr. Stacy McCarty, a doctor of

     rehabilitation medicine, would testify that Deprizio suffered an organic brain injury as a result of

     lithium toxicity. McCarty listed Deprizio's symptoms as "impaired memory, impaired cognition,

     impaired abstract reasoning, slow processing speed and decline in intelligence." She would

     testify that the injury is permanent.




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¶6        Another expert, Dr. Nancy Landre, a clinical neuropsychologist, would testify on Deprizio’s

     neuropsychological evaluation. Regarding the causes, her report stated, “[W]hile depression can

     certainly have an adverse impact on cognitive functioning, the timing, level of impairment, and

     severity of Ms. Deprezio's [sic] deficits suggest that other factors are also responsible for this

     apparent decline. In particular, *** Ms. Deprezio's [sic] episode of Lithium toxicity in 2002

     ***." (Emphasis added.)

¶7          The third expert, Dr. Shabbir Zarif, a psychiatrist, stated that Deprizio suffers from an

     organic brain injury resulting from the 2002 lithium overdose. Specifically, Zarif wrote in his

     report that the results of Deprizio's cognitive examination showed that her visual spatial skills,

     attention, information processing ability, motor skills, and global cognitive functioning were

     more than one standard deviation below normal. He stated:

                    "This cognitive exam pattern is not necessarily found in patients with bipolar,

                 depressive or anxiety disorders, esp[ecially] the visio spatial functions and are more

                 consistent with a schizophrenia process which she clinically does not fit the picture

                 of. However in light of the relatively recent decline, the history of lithium toxicity,

                 coma, repeated seizures, she may have an 'organic brain syndrome' from that episode

                 in 2002." (Emphasis added.)

     Zarif further stated that Deprizio's "overall slowness may be related to brain dysfunction and not

     just meds but may be related to anxiety and poor concentration." Notably, both Landre and Zarif

     discuss the effects of Deprizio's past mental health problems (including depression) on her

     cognitive impairment, though it seems neither believes they are wholly responsible for her

     cognitive impairment.




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¶8             Based on these disclosures, MacNeal filed a motion to compel production of all of

       Deprizio's mental health records. MacNeal offered two arguments in support: (i) Deprizio placed

       her mental condition at issue by introducing her mental well-being as an element of damages;

       and (ii) the records were relevant because Deprizio's bipolar disorder or depression might have

       caused or contributed to her cognitive impairment.

¶9             The trial court found that Deprizio introduced her mental state as an element of her claim,

       and conducted an in camera review of all Deprizio's psychiatric records from 1992 to 2002,

       which included records from Dr. Catherine Camilleri at Rush Hospital, among others. After

       reviewing the records, the trial court ordered Deprizio to produce all records reviewed by Zarif,

       and also redacted portions of records of treatment by Camilleri relating to any cognitive

       impairment before 2002. The trial court specified notes from eight sessions with Camilleri in

       2000 and 2001.

¶ 10           Hebeisen refused to disclose these records and took a “friendly” contempt appeal.

¶ 11                                             ANALYSIS

¶ 12           The correctness of a discovery order may be tested through a contempt order, and the

       appeal immediately taken. Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010); Payne v. Hall, 2013 IL

       App (1st) 113519, ¶ 10. We review the underlying discovery order. Id.

¶ 13           As to Hebeisen's appeal, we must decide whether the trial court erred in holding that

       Deprizio placed her mental condition at issue through her expert witness disclosures. As to the

       cross-appeal, we are asked whether the trial court erred in limiting disclosures of Deprizio's

       mental health records to those mentioning cognitive defects. We hold that the trial court did not

       err in either respect.




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¶ 14          Our analysis under the Act proceeds in two steps. First we determine whether Deprizio

       waived her privilege. If waived, we then must satisfy ourselves that the trial court reasonably

       construed the statutory standards in deciding the scope of the records and communications to be

       disclosed.

¶ 15                                          Waiver of Privilege

¶ 16          The Act carefully maintains the confidentiality of mental health records except in specific

       circumstances explicitly enumerated. Norskog v. Pfiel, 197 Ill. 2d 60, 71 (2001). The courts must

       be vigilant in guarding against the breach of this statutory privilege. Id. at 72. Those seeking the

       nonconsensual release of mental health information face "a formidable challenge" and must

       show that the Act authorizes the disclosure. Id.

¶ 17          Except as provided in the Act, a recipient of mental health services "has the privilege to

       refuse to disclose and to prevent the disclosure of" his or her mental health records. 740 ILCS

       110/10(a) (2010). The Act defines "record," in relevant part, to mean "any record kept by a

       therapist or by an agency in the course of providing mental health *** service to a recipient

       concerning the recipient and the services provided." 740 ILCS 110/2 (West 2010).

¶ 18          Waiver of the privilege occurs when, among other reasons, the recipient "introduces his

       [or her] mental condition or any aspect of his [or her] services received for such condition as an

       element of his [or her] claim or defense." 740 ILCS 110/10(a)(1) (West 2010). "A party may

       introduce his or her mental condition in several ways during the course of litigation, including,

       e.g., in the pleadings, answers to written discovery, a deposition, in briefs or motions, in

       argument before the court, or by stipulation." Reda v. Advocate Health Care, 199 Ill. 2d 47, 61

       (2002). Ordinarily, a party's prayer for pain and suffering damages will not introduce mental

       condition as an element of the party's claim. Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405,


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       408-09 (1966). Even where a plaintiff alleges a neurological injury, his or her mental condition

       may still not be at issue. Reda, 199 Ill. 2d at 58. But an exception can arise—in claims where

       pain and suffering is an element of damages, the recipient of mental health services will be

       deemed to have introduced his or her mental condition "only if the recipient or a witness on his

       behalf first testifies concerning the record or communication." 740 ILCS 110/10(a)(1) (West

       2010). We review de novo the ruling that a party has introduced his or her mental condition

       under the Act. D.C. v. S.A., 178 Ill. 2d 551, 560-61 (1997).

¶ 19          Hebeisen argues that the law of the case doctrine prevents relitigation of this issue. We

       disagree. Under the law of the case doctrine, a court's unreversed decision on a question of law

       or fact settles that question "for all subsequent stages of the suit." (Internal quotation marks

       omitted.) Alwin v. Village of Wheeling, 371 Ill. App. 3d 898, 911 (2007). "Questions of law that

       are decided on a previous appeal are binding on the trial court on remand as well as on the

       appellate court in subsequent appeals." Long v. Elborno, 397 Ill. App. 3d 982, 989 (2010).

       Nevertheless, the binding effect crumbles where “the facts presented in the subsequent

       proceedings are so substantially different as to require a different interpretation." Turner v.

       Commonwealth Edison Co., 63 Ill. App. 3d 693, 698 (1978). The doctrine has two other

       exceptions: (i) when a higher reviewing court makes a contrary ruling on the same issue after the

       lower court's decision; and (ii) when a reviewing court finds that its earlier decision was palpably

       erroneous. Kreutzer v. Illinois Commerce Comm'n, 2012 IL App (2d) 110619, ¶ 31.

¶ 20          In our 2008 order, we addressed (i) the disclosure of Deprizio's lithium dosages and

       reactions; and (ii) the treatment records of defendant Dr. Saiyed. Deprizio v. MacNeal Memorial

       Hospital Ass'n, No. 1-06-2909 (Sept. 19, 2008) (unpublished order under Supreme Court Rule

       23). As to the lithium records, Deprizio's complaint "places squarely at issue the amount of


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       Lithium used to treat Plaintiff's psychiatric condition," and that the privilege is waived under the

       "any aspect of services" exception in section 10(a)(1). See 740 ILCS 110/10(a) (West 2010);

       Deprizio v. MacNeal Memorial Hospital Ass'n, No. 1-06-2909 (Sept. 19, 2008) (unpublished

       order under Supreme Court Rule 23). The history of Deprizio's lithium dosages and her reactions

       to them was relevant to determine whether lithium toxicity caused her injuries. Hense, we held

       the privilege waived as to those records.

¶ 21          As to the treatment records of defendant Dr. Saiyed, this court noted that the statute

       allows Saiyed to use her records in her own defense. 740 ILCS 110/10(a)(3) (West 2010) ("the

       therapist and other persons whose actions are alleged to have been the cause of injury *** may

       testify as to such records or communication *** for the purpose of preparing and presenting a

       defense against such claim or action"). Accordingly, we reasoned that the Act required disclosure

       of Saiyed's treatment records to the other defendants.

¶ 22          Neither issue addressed in the 2008 appeal bears on the effect of Deprizio's Rule

       213(f)(2) disclosures on her privilege under the Act, the issue before us now. As those

       disclosures had not been made yet, the issue did not even exist earlier. Because the facts

       controlling this appeal markedly differ, the law of the case doctrine does not apply.

¶ 23          Hebeisen next urges that the trial court erred in failing to follow Reda v. Advocate Health

       Care, 199 Ill. 2d 47 (2002). There, the plaintiff alleged he suffered injury after a negligently

       performed knee replacement surgery. Id. at 50-51. During the plaintiff's and his wife's

       depositions, when asked to describe the plaintiff's injuries, they mentioned brain damage, and

       dramatic shifts in his personality and character after the surgery. Id. at 51-53. Based on this

       testimony, the circuit court ordered the plaintiff to disclose psychiatric records. Id. at 53.

       Plaintiff's attorney refused and took a finding of contempt. Id. The supreme court reversed,


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       reasoning that the plaintiff "did not place his mental condition at issue merely by claiming

       damages for what is a neurological injury, i.e., stroke and/or brain damage. *** 'A neurological

       injury is not synonymous with psychological damage ***. Nor does neurological injury directly

       implicate psychological damage.' [Citation.]" Id. at 58.

¶ 24           The court further noted that the relevancy of the records was not decisive to waiver of the

       Act's privilege in determining whether cognitive difficulties were caused by his presurgery

       mental illness. Id. at 57-59. "Although defendants might be denied access to information that

       could benefit their case, any 'unfairness' is the same that is present any time a privilege against

       disclosure is exercised. Evidentiary privileges, generally, ' "are not designed to promote the

       truth-seeking process, but rather to protect some outside interest other than the ascertainment of

       truth at trial." ' [Citations.]" Id. at 59.

¶ 25           Hebeisen argues that, like the plaintiff in Reda, the documents implicate a physical

       injury— an "organic brain dysfunction"—which has cognitive and physical manifestations, but is

       not a psychological injury. He notes that, while Deprizio's cognitive impairment before 2002

       may be relevant to determining the extent of her damages from the lithium toxicity, the privilege

       remains intact. He emphasizes this action is for medical malpractice, and not psychiatric

       malpractice. See, e.g., Bloom v. Braun, 317 Ill. App. 3d 720 (2000) (alleging negligent care in

       treatment of multiple personality disorder). He also argues that no waiver of the privilege can

       occur until an expert "first testifies concerning the record or communication" (740 ILCS

       110/10(a)(1) (West 2010)), which has not happened.

¶ 26           We agree with the trial court's holding that Deprizio waived her privilege under the Act.

       In actions where pain and suffering is an element, the recipient of mental health services will be

       deemed to have introduced his or her mental condition "only if the recipient or a witness on his


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       [or her] behalf first testifies concerning the record or communication." 740 ILCS 110/10(a)(1)

       (West 2010).

¶ 27          Pain and suffering damages, as counsel for Hebeisen conceded at oral argument, are in

       the mix here. But, the exception only waives the Act's privilege where there is testimony

       regarding privileged records. The exception reads:

                   "[I]n any action in which pain and suffering is an element of the claim, mental

                   condition shall not be deemed to be introduced merely by making such claim and

                   shall be deemed to be introduced only if the recipient or a witness on his [or her]

                   behalf first testifies concerning the record or communication." (Emphasis added.) 740

                   ILCS 110/10(a)(1) (West 2010).

       Use of the word "only" indicates exclusivity. That is, where pain and suffering is an element of a

       claim, the exclusive means of waiving the privilege is testimony by or on behalf of the recipient

       of mental health services concerning the privileged records or communications.

¶ 28          Hebeisen is technically correct that no witness has testified regarding privileged

       records—yet. None of the three experts have been deposed or testified in court. But the Rule

       213(f)(2) disclosures leave no doubt hat Drs. Landre and Zarif will testify as to certain records

       that would otherwise be privileged. Landre reviewed "medical records provided by staff at

       Lutheran General Hospital's Adult Day Hospital," and Zarif reviewed copies of some of

       Deprizio's admission and discharge summaries. It follows that Landre's and Zarif's opinion

       testimony will derive in part from the records. See Roberts v. Norfolk & Western Ry. Co., 229 Ill.

       App. 3d 706, 723 (1992) (Cook, J., specially concurring) (noting designation of witness as expert

       exposes witness to discovery of bases of opinions). Requiring the trial court to wait for live

       testimony before finding the Act's privilege waived not only proves inefficient, but is an illogical


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       interpretation of the Act. See Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007) ("when

       undertaking the interpretation of a statute, we must presume that when the legislature enacted a

       law, it did not intend to produce absurd, inconvenient or unjust results"). Otherwise, the expert

       witnesses would be subjected to another deposition or the trial halted to conduct a thorough in

       camera inspection at that point. Therefore, we find the circumstances before us trigger the

       exception.

¶ 29                                   Fundamental Fairness Exception

¶ 30          MacNeal argues that Deprizio waived her privilege under the Act under the fundamental

       fairness exception, as articulated in D.C. v. S.A., 178 Ill. 2d 551 (1997). We disagree. In D.C., the

       plaintiff- pedestrian claimed that the defendant driver negligently struck him as he crossed a

       street. Id. at 554. There was some indication in the plaintiff's medical records that he was

       attempting to commit suicide. Id. at 555. The trial court ordered a limited disclosure of plaintiff's

       psychological records. Id. at 556-57. The supreme court affirmed, noting that "under a strict

       application of section 10(a)(1), plaintiff did not introduce his mental condition 'as an element of

       his claim.' " (Emphasis added.) Id. at 570. Nonetheless, the court created a common law

       exception to strictures of the Act: "the interests of fundamental fairness and substantial justice

       outweigh the protections afforded the therapist-recipient relationship where plaintiff seeks to

       utilize those protections as a sword rather than a shield to prevent disclosure of relevant,

       probative, admissible, and not unduly prejudicial evidence that has the potential to fully negate

       the claim plaintiff asserted against defendants and absolve them of liability." (Emphasis added.)

       Id.

¶ 31         In Reda, the court later explained that the exception was narrow and only applied to

       circumstances where "plaintiffs are invoking the mental-health therapist-patient privilege to


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       exploit or subvert the legal process." Reda, 199 Ill. 2d at 61. Nothing in the record even hints at

       Deprizio seeking to hide evidence that would exculpate MacNeal and the other defendants. We

       do not believe she relies on the privilege to bolster an otherwise invalid claim.

¶ 32                                     Aspect of Services Exception

¶ 33          MacNeal next argues that Deprizio waived her privilege under the "any aspect of

       services" exception. See 740 ILCS 110/10(a) (West 2010). We disagree again. The Act defines

       "services," which "includes but is not limited to examination, diagnosis, evaluation, treatment,

       training, pharmaceuticals, aftercare, habilitation or rehabilitation." 740 ILCS 110/2 (West 2010).

       MacNeal asserts that the issue is injury arising from lithium toxicity plus the evaluation and

       treatment of Deprizio's underlying mental health condition. It is unclear how MacNeal reaches

       this conclusion. Based on her most recent complaint, the extent that lithium was administered to

       treat Deprizio's mental health is the sole "aspect of services" at issue; neither Deprizio nor her

       experts maintain that the defendants' "services" were otherwise deficient. Deprizio is not saying

       that she should not have been given lithium in 2002, only that she was given too much. Thus, the

       "aspect of services" exception does not apply.

¶ 34                            In Camera Inspection and Scope of Disclosure

¶ 35          In the parties' appeal and cross appeal, they both dispute the results of the trial court's in

       camera inspection and the scope of the ordered disclosure—Deprizio arguing that the disclosure

       was too broad, and MacNeal pressing for full disclosure.

¶ 36          Where a party has introduced his or her mental condition as an element of a claim, the

       court examines the records or testimony in camera, and discloses only the evidence that is

       "relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible;

       that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to


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       be established by such evidence; and that disclosure is more important to the interests of

       substantial justice than protection from injury to the therapist-recipient relationship or to the

       recipient or other whom disclosure is likely to harm." 740 ILCS 110/10(a)(1) (West 2010).

¶ 37        Implicit in these factors is that disclosure should be kept to a minimum even when the Act's

       privilege is waived. See Norskog v. Pfiel, 197 Ill. 2d 60, 71 (2001) ("In each instance where

       disclosure is allowed under the Act, the legislature has been careful to restrict disclosure to that

       which is necessary to accomplish a particular purpose. Exceptions to the Act are narrowly

       crafted."). We review the trial court's findings under these factors for an abuse of discretion.

       Reda v. Advocate Health Care, 199 Ill. 2d 47, 55 (2002). "A trial court abuses its discretion

       when no reasonable person would agree with its decision." In re M.P., 408 Ill. App. 3d 1070,

       1073 (2011).

¶ 38          MacNeal argues that the circuit court abused its discretion by limiting disclosure to those

       records that refer to Deprizio's cognitive impairment before 2002. MacNeal characterizes the

       trial judge's review as a search for "magic words." We take issue with this description. From our

       own in camera inspection of the records, the disclosed documents (notes from eight treatment

       sessions in 2000 and 2001) do not appear to have been selected with a word search. The notes

       refer, albeit in passing, to symptoms of cognitive impairment similar to those discussed by Drs.

       Landre and Zarif in the Rule 213(f)(2) disclosures.

¶ 39          We cannot say that the selection of these notes, and the exclusion of others, is

       unreasonable. MacNeal’s sole argument in its motion to compel was the relevancy of Deprizio's

       mental health records to the element of causation: "Plaintiff's own Rule 213(f)(2) witnesses

       indicate that there may be causes for Plaintiff's alleged loss of cognitive functioning other than

       the care she received at MacNeal in 2002." As this was the only relevant basis for inquiry, the


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       trial judge's careful selection of notes kept disclosure to a minimum and encroached on

       Deprizio's privilege to the least possible extent.

¶ 40          Hebesien further asserts that the trial court failed to make "findings" under the Act's

       factors before ordering disclosure. The trial court did not use the word "finds" or "findings"

       before ordering disclosure. While making specific findings is a better practice and would make

       the record clearer on appeal, our reading of the transcript as a whole shows that after the in

       camera inspection, the trial judge properly considered the factors, and justified her ruling, as

       required under the Act.

¶ 41                                             CONCLUSION

¶ 42          We affirm the discovery orders of the trial court. We find Hebeisen acted in good faith to

       test the validity of the orders and vacate the sanction against him, and grant him 10 days after the

       mandate issues to comply with the orders at issue.

¶ 43          Affirmed and remanded.




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