                                                                    SECOND DIVISION
                                                                   March 28, 2006



No. 1-05-1854

AHMED KRAIMA, Individually and as Special               )      Appeal from the
Administrator of the Estate of Carol Kraima,            )      Circuit Court of
                                                        )      Cook County.
                     Plaintiff-Appellee,                )
       v.                                               )
                                                        )
JAMES I. AUSMAN,                                        )
                                                        )      Honorable
                     Defendant,                         )      Kathy M. Flanagan,
                                                        )      Judge Presiding.
(Robert M. Collins, Contemnor-Appellant).               )


       JUSTICE SOUTH delivered the opinion of the court:

       Attorney-contemnor, Robert Collins, appeals from an order of the circuit court of

Cook County adjudging him in contempt and imposing a monetary sanction for refusing

to produce the medical disability claim file submitted by his client, defendant James

Ausman, M.D., to the State Universities Retirement System of Illinois (SURS).

                                      BACKGROUND

       On August 22, 2002, plaintiff brought a wrongful death and survival action against

defendant in connection with the medical treatment he provided plaintiff's wife, Carol

Kraima, between August 17, 2000, and her death on September 4, 2000. The complaint

set forth allegations pertaining to defendant's attempt to surgically repair Ms. Kraima's

internal carotid artery aneurysm at the University of Illinois at Chicago Medical Center

(UIC) on August 18, 2000. Plaintiff alleged defendant was negligent for failing to use

hyperthermic cardiac arrest when performing the surgery which was aborted; failing to
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timely reschedule a second surgery using the procedure; negligently allowing her to be

discharged from UIC on August 25, 2000; and failing to have her admitted to another

hospital days later for treatment. Defendant testified during his discovery deposition that

Ms. Kraima was referred to him after being diagnosed with a complex intracranial

aneurysm, which was anatomically so difficult that only a few surgeons could address

the problem. Defendant further testified he had been diagnosed with psoriatic arthritis in

January 2001, which involved various joints in his body, including his hands. He stopped

performing surgery in February 2001, and relinquished his position as head of

neurosurgery at UIC in September 2001, for health reasons.

       On February 2, 2004, plaintiff filed a motion to compel the production of

defendant's medical records. Defendant objected on the basis the documents were not

relevant and were protected under the physician-patient privilege (735 ILCS 5/8-802

(West 2000)), section 8-2101 of the Code of Civil Procedure, commonly known as the

Medical Studies Act (735 ILCS 5/8-2101 (West 2000)), and the federal Health Insurance

Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. '1320d-2 (2000)).

       On April 21, 2004, the trial court denied plaintiff=s motion to compel the production

of defendant=s medical records. Defendant was ordered, however, to advise the trial

court as to the location of the disability claim file he submitted to SURS. Defendant

subsequently produced the material for in camera inspection.

       On September 8, 2004, plaintiff filed an amended complaint alleging, in relevant

part, that defendant was negligent in accepting Ms. Kraima as a patient when he knew

he had arthritis and could not provide proper medical and surgical care. Plaintiff further

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alleged defendant was physically limited by arthritis when he performed the surgery on

his wife in August 2000.

       On May 25, 2005, after conducting an in camera inspection of defendant's

employment records, medical records, personnel file, and the medical disability claim file,

the trial court ordered him to provide plaintiff with the entire disability file. The trial court

concluded that all of the pertinent information was contained therein, that it did not rise to

the level of production of defendant's entire set of medical records, and there were

minimal actual medical records in the disability file. The trial court found the records only

formed the supporting documentation underlying the written submission forms submitted

by the various physicians in connection with defendant=s disability claim. The trial court

found the material contained facts and information that were limited in nature and went to

the issue plaintiff sought to establish with respect to the date of onset of defendant=s

symptoms, medications, and physical limitations.

       While acknowledging defendant never raised the issue of his physical condition as
a defense, the trial court concluded that any patient would be entitled to know whether
the surgeon operating on him or her was impaired. The trial court further stipulated the
materials would be subject to a protective order and would not be disclosed to anyone
other than the parties' attorneys, their consultants, and expert witnesses, as necessary.
Finally, the trial court found the records were relevant because they pertained to what
the defendant referred "to as a 'constellation' of medical problems, which have some
degree of interrelationship, all of which converged to cause him to cease being able to
perform surgery and to perform the position for which he was hired and that gave rise to
the application for disability."

       For purposes of appealing the discovery order, the trial court found defendant=s

attorney, Robert Collins, in civil contempt for refusing to produce the disability file and

imposed a monetary sanction.


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       On appeal, contemnor argues the trial court erred in requiring him to produce

defendant's medical disability file because it was protected from disclosure under

Illinois's physician-patient privilege (735 ILCS 5/8-802 (West 2000)) and HIPAA. Plaintiff

argues the documents are not medical records and are discoverable as relevant

evidence. He further asserts the physician-patient privilege would not apply as this case

involves exceptions to the privilege because defendant placed his physical condition at

issue, and this entails a civil action against a medical doctor for malpractice. 1

                                           ANALYSIS

       While discovery orders are typically reviewed only on appeal from a final

judgment, when a party appeals from a contempt sanction imposed for violating a

discovery order, the contempt finding is final and appealable, and presents to a court of

review the propriety of that discovery order. Reda v. Advocate Health Care, 199 Ill. 2d

47, 54 (2002). Discovery rulings are generally within the trial court=s discretion and will

not be disturbed absent an abuse of discretion. Reda, 199 Ill. 2d at 54. The applicability

of a statutory evidentiary privilege, as in the instant case, and any exceptions thereto are

matters of law subject to de novo review. Reda, 199 Ill. 2d at 54.

       "[T]he right to discovery is limited to disclosure of matters that will be relevant to

        1
         Defendant's disability claim file is contained in the appellate record but was sealed from
plaintiff.




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the case

at hand in order to protect against abuses and unfairness, and a court should deny a

discovery request where there is insufficient evidence that the requested discovery is

relevant or will lead to such evidence." Leeson v. State Farm Mutual Automobile

Insurance Co., 190 Ill. App. 3d 359, 366 (1989). A patient's medical records, even when

relevant, are generally entitled to protection from discovery under the physician-patient

privilege. Reagan v. Searcy, 323 Ill. App. 3d 393, 395 (2001). This privilege is found in

section 8-802 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/8-802 (West

2000)), and does not exist at common law. Geisberger v. Willuhn, 72 Ill. App. 3d 435,

436-37 (1979).

       The legislature by enacting the physician-patient privilege recognized the patient's

interest in maintaining confidentiality in his or her dealings with a physician. People ex

rel. Department of Professional Regulation v. Manos, 202 Ill. 2d 563, 575 (2002). "This

privilege exists as to 'any information' acquired by a physician in a professional capacity

which is 'necessary' to enable him to 'serve' his patient." Pritchard v. Swedish-American

Hospital, 191 Ill. App. 3d 388, 404 (1989), quoting Geisberger, 72 Ill. App. 3d at 437. As

our supreme court explained in Manos:

                      "The primary purpose of the physician-patient

               privilege is to encourage free disclosure between a doctor

               and a patient and to protect the patient from embarrassment

               and invasion of privacy that disclosure would entail.

               [Citation.] The physician-patient privilege is one of trust and

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               confidence in which the patient knowingly seeks the doctor's

               assistance and the doctor knowingly accepts the person as a

               patient. [Citation.] *** As with other statutory privileges, the

               physician-patient privilege is a legislative balancing between

               relationships that society feels should be fostered through

               the shield of confidentiality and the interests served by

               disclosure of the information." Manos, 202 Ill. 2d at 575-76.



       No Illinois case has addressed the specific issue raised by contemnor as to the

applicability of the physician-patient privilege to a defendant doctor's medical disability

claim file sought by a plaintiff in a malpractice suit. The appellate court's decisions in

Pritchard v. Swedish-American Hospital, 191 Ill. App. 3d 388 (1989), and Woodard v.

Krans, 234 Ill. App. 3d 690 (1992), however, are instructive.

       In Pritchard, the plaintiffs, a husband and wife, brought a medical malpractice

action against the hospital and doctors in connection to the care the wife received while

a patient at the hospital. During discovery, the plaintiffs sought, among other things, the

disclosure of information concerning the nature of the medical evaluations performed on

one of the defendant doctors who had been suspended and reinstated. Specifically, the

plaintiffs sought information regarding the diagnosis, examinations, tests, or treatment

rendered on the defendant doctor. The appellate court reversed the trial court's ruling

granting the plaintiffs' request after concluding that none of the statutory exceptions to

the physician-patient privilege applied and the medical information of the defendant

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doctor sought by the plaintiffs fell within the scope of the privilege. Pritchard, 191 Ill.

App. 3d at 392-405.

       In Woodard, the plaintiff brought a cause of action against the defendant

anesthesiologist and hospital alleging that she contracted tuberculosis from the

anesthesiologist while he was performing a procedure upon her at the hospital. The

plaintiff argued the trial court abused its discretion in refusing her request for limited

discovery of the anesthesiologist's medical records because without them, a reviewing

health professional could not reasonably determine the merits of her claim. Although the

plaintiff waived this argument by failing to provide any case authority, and the applicable

statutory provision only allowed for discovery of the plaintiff's medical records, the

appellate court found the physician-patient privilege would protect most, if not all, of the

information plaintiff sought through discovery. The court concluded, "as is true of

exclusionary rules generally, the restrictions on discovery represent a considered

judgment that interests of litigants such as plaintiff here must yield to other interests, in

this case confidentiality, privacy and candid peer review within medical institutions."

Woodard, 234 Ill. App. 3d at 700.

       Turning to the instant case, section 8-802 of the Code provides, in pertinent part:

"No 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

2000). A review of defendant's disability claim file reveals numerous detailed reports

completed by medical doctors concerning defendant's physical condition based upon

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medical examinations and tests. There is a significant amount of private medical

information contained in the reports which is not relevant to the allegations in plaintiff's

amended complaint. We find no basis to support plaintiff's claim that these documents

do not constitute medical records and, in accordance with Pritchard and Woodard, find

the material was privileged under section 8-802.

       Next, we must determine whether any of the exceptions to the physician-patient

privilege contained in section 8-802 apply. Only the second, third, and fourth exceptions

contained in the statute pertain to civil actions of the type here. Pritchard, 191 Ill. App.

3d at 404. The second exception states that a patient's medical information is

discoverable "(2) in actions, civil or criminal, against the [physician] for malpractice." 735

ILCS 5/8-802 (West 2000). Contrary to plaintiff's assertion, this exception is " 'limited to

only allow the disclosure of the records of the patient who is bringing the malpractice

action,' " and does not apply here because the medical records of plaintiff's decedent

were not being sought for discovery. Pritchard, 191 Ill. App. 3d at 404, quoting Parkson

v. Central Du Page Hospital, 105 Ill. App. 3d 850, 855 (1982).

       The remaining two exceptions would also not allow disclosure of the material

sought by plaintiff. These exceptions allow disclosure "(3) with the expressed consent of

the patient," or "(4) 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 (West 2000).

Defendant did not expressly consent to the disclosure of the material simply by filing his

disability claim with SURS. Likewise, we reject plaintiff's claim that defendant has placed

his physical condition at issue, which would allow disclosure of his disability file. In order

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for this exception to apply, the patient, i.e., Dr. Ausman, not plaintiff, must have

affirmatively placed his physical condition in issue. Pritchard, 191 Ill. App. 3d at 404-05.

The record establishes that during defendant's deposition, plaintiff's attorney asked him

when he left UIC, and defendant responded that he relinquished his position in 2001, for

health reasons. He further testified that he was not having any problems with his arthritis

when he performed the surgery on Ms. Kraima. Therefore, as in Pritchard, defendant did

not affirmatively place his medical condition at issue simply because plaintiff alleged in

the amended complaint that he was physically limited by arthritis when he performed the

surgery.

       For the foregoing reasons, we find the material contained in defendant's medical

disability claim file fell within the scope of the physician-patient privilege and that none of

the exceptions to the privilege apply. Consequently, the trial court erred by compelling

disclosure of defendant's file. While we recognize some of the inconvenience plaintiff

may experience in his attempt to discover evidence that may prove relevant to his cause

of action, we reiterate that "medical malpractice plaintiffs not only have full and complete

access to their own records but also can depose all persons involved in their treatment

and engage experts to give opinions as to the quality of care received." Pritchard, 191

Ill. App. 3d at 398.

        Due to our determination, it is unnecessary for us to address contemnor's claim

that the documents were also protected from disclosure under HIPPA.

       Accordingly, the circuit court's order compelling defendant to produce his medical

disability claim file and the contempt order imposing a sanction for failure to do so are

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reversed, and we remand this cause for further proceedings consistent with this opinion.



      Reversed and remanded.

      GARCIA, P.J., and WOLFSON, J., concur.




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