                               Illinois Official Reports

                                       Appellate Court



           Deprizio v. MacNeal Memorial Hospital Ass’n, 2014 IL App (1st) 123206




Appellate Court           LOUISE DEPRIZIO, Plenary Guardian of the Estate and Person of
Caption                   Lisa Deprizio, a Disabled Person, Plaintiff and Cross-Appellee, v.
                          THE MacNEAL MEMORIAL HOSPITAL ASSOCIATION,
                          Defendant-Appellee and Cross-Appellant (Other Defendants; (Keith
                          A. Hebeisen, Contemnor-Appellant)).


District & No.            First District, Third Division
                          Docket No. 1-12-3206


Filed                     May 28, 2014


Held                       In a medical malpractice action arising from plaintiff’s mental
(Note: This syllabus impairment, which allegedly resulted from a lithium overdose that
constitutes no part of the occurred while she was a patient at defendant hospital, the trial court
opinion of the court but properly ordered plaintiff to disclose certain limited records
has been prepared by the concerning her treatment for cognitive impairment prior to the alleged
Reporter of Decisions overdose as reviewed by independent witnesses identified by plaintiff
for the convenience of as witnesses at trial, since the trial judge selected the material to be
the reader.)               disclosed during an in camera review and the disclosure encroached
                           to the least possible extent on plaintiff’s privilege under the Mental
                           Health and Developmental Disabilities Confidentiality Act.




Decision Under            Appeal from the Circuit Court of Cook County, No. 09-L-6426; the
Review                    Hon. Eileen Mary Brewer, Judge, presiding.



Judgment                  Affirmed and remanded.
     Counsel on               Thomas K. Prindable and Robert Sheridan, both of Clifford Law
     Appeal                   Offices, of Chicago, for appellant.

                              Susan K. Laing and Sapna G. Lalmalani, both of Anderson, Rasor &
                              Partners, LLP, of Chicago, for appellee.




     Panel                    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 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

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       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.
¶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.
¶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.

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¶ 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.
¶ 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, 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.”

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       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 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. Hence, 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,
       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

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       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 [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 that 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 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

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       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
       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 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


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       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 trial judge’s careful selection of notes kept disclosure to a
       minimum and encroached on Deprizio’s privilege to the least possible extent.
¶ 40        Hebeisen 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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