In re Estate of Bagus

No. 2--97--0394
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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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In re ESTATE of ) Appeal from the Circuit Court
SUE A. BAGUS, Deceased ) of Winnebago County.
)
) No. 96--P--321
)
(David J. Stinson, and ) Honorable
Richard Gaines, Contemnors- ) J. Todd Kennedy,
Appellants). ) Judge, Presiding.
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JUSTICE RATHJE delivered the opinion of the court:
Contemnors, David Stinson and Richard Gaines, appeal the order
of the circuit court of Winnebago County requiring them to produce
for in camera inspection items identified by Stinson as personal
notes relating to his psychiatric treatment of Sue Bagus.
Contemnors contend that a statutory privilege prevents the
disclosure of the notes, even for in camera inspection by the trial
court.
Bagus had been a patient of Dr. Stinson for some time. She
was distraught, in part, because of ongoing marriage dissolution
proceedings. On May 6, 1996, Bagus committed suicide. She left a
will naming her husband, Stuart, as the executor of her estate.
The estate requested copies of Bagus's records from Stinson.
When he declined to comply on the basis of doctor-patient
privilege, the estate filed a motion to compel production. The
motion stated that the estate was investigating a possible
malpractice action against Stinson and needed the records so they
could be reviewed by a health care professional pursuant to section
2--622 of the Code of Civil Procedure (735 ILCS 5/2--622 (West
1996)) to determine whether such an action was potentially
meritorious.
Stinson filed an objection, including an affidavit identifying
certain documents as "personal notes." Stinson claimed that these
personal notes were exempt from disclosure, even to the court,
pursuant to section 3 of the Mental Health and Developmental
Disabilities Confidentiality Act (the Act) (740 ILCS 110/3 (West
1996)). The trial court stated that it had no problem with the
privilege, but was concerned about who was to make the decision
regarding what constituted personal notes. In reviewing the
affidavit, the trial court noted that Stinson was "taking a fairly
liberal interpretation" of what constituted personal notes. The
court ordered Stinson to turn over his entire file, including
personal notes, for in camera inspection.
Stinson thereafter filed a notice of partial compliance, but
did not produce the documents he deemed personal notes. At the
suggestion of Stinson's attorney, Richard Gaines, the court found
Stinson and Gaines in contempt of court and fined each of them
$100. Contemnors appeal.
On appeal, contemnors argue that the Act prohibits the
production for in camera inspection of a psychiatrist's "personal
notes." The estate concedes that personal notes are privileged but
contends that the court must be allowed to inspect the documents to
review the psychiatrist's claim of privilege.
To understand fully the parties' contentions, it is necessary
to examine the language and structure of the Act. Section 2
defines certain terms used throughout the Act, including the
following:
" 'Confidential communication' or 'communication' means
any communication made by a recipient or other person to a
therapist or to or in the presence of other persons during or
in connection with providing mental health or developmental
disability services to a recipient.
* * *
'Personal notes' means:
(i) information disclosed to the therapist in
confidence by other persons on condition that such
information would never be disclosed to the recipient or
other persons;
(ii) information disclosed to the therapist by the
recipient which would be injurious to the recipient's
relationships to other persons, and
(iii) the therapist's speculations, impressions,
hunches, and reminders.
* * *
'Record' means any record kept by a therapist or by an
agency in the course of providing mental health or
developmental disabilities service to a recipient concerning
the recipient and the services provided. *** Record does not
include the therapist's personal notes, if such notes are kept
in the therapist's sole possession for his own personal use
and are not disclosed to any other person, except the
therapist's supervisor, consulting therapist or attorney. If
at any time such notes are disclosed, they shall be considered
part of the recipient's record for purposes of this Act." 740
ILCS 110/2 (West 1996).
Section 3 of the Act provides that all records and
communications shall be confidential and shall not be disclosed
"except as provided in this Act." 740 ILCS 110/3(a) (West 1996).
That section further provides:
"A therapist is not required to but may, to the extent he
determines it necessary and appropriate, keep personal notes
regarding a recipient. Such personal notes are the work
product and personal property of the therapist and shall not
be subject to discovery in any judicial, administrative or
legislative proceeding or any proceeding preliminary thereto."
740 ILCS 110/3(b) (West 1996).
Section 10 provides for the limited disclosure of patient
records in civil, criminal, administrative, or legislative
proceedings. Relevant to this case is paragraph (a)(2), which
provides as follows:
"Records or communications may be disclosed in a civil
proceeding after the recipient's death when the recipient's
physical or mental condition has been introduced as an element
of a claim or defense by any party claiming or defending
through or as a beneficiary of the recipient, provided the
court finds, after in camera examination of the evidence, that
it is relevant, probative, and otherwise clearly admissible;
that other satisfactory evidence is not available regarding
the facts sought to be established by such evidence; and that
disclosure is more important to the interests of substantial
justice than protection from any injury which disclosure is
likely to cause." 740 ILCS 110/10(a)(2) (West 1996).
The primary issue, then, is the proper construction of the
Act. In construing a statute, a court must ascertain and give
effect to the legislature's intent in enacting the statute.
Collins v. Board of Trustees of the Firemen's Annuity & Benefit
Fund, 155 Ill. 2d 103, 110 (1993); DiMarco v. City of Chicago, 278
Ill. App. 3d 318, 324 (1996). The statutory language is usually
the best indication of the drafters' intent, and the language
should be given its plain, ordinary, and popularly understood
meaning. Collins, 155 Ill. 2d at 111.
Nothing in the Act states that a therapist's personal notes
are not subject to in camera review. Rather, section 3 merely
provides that such notes are not "discoverable." The estate agrees
with Dr. Stinson that his personal notes are not discoverable.
Where the parties disagree is on the question of who should
determine what constitutes personal notes. Stinson contends that
he alone must make that determination, while the estate contends
that the court, in its usual role of supervising discovery, should
have the last word.
Evaluating the relevance of discovery requests and ensuring
parties' compliance are uniquely judicial functions. Best v.
Taylor Machine Works, Nos. 81890 through 81893, cons., slip op. at
61 (Ill. December 18, 1997). Under the supreme court rules, trial
courts have broad powers to supervise the discovery process.
Atwood v. Warner Electric Brake & Clutch Co., 239 Ill. App. 3d 81,
88 (1992). Supreme Court Rule 201 provides that the court, upon
motion of any party or witness, or on its own motion, "may
supervise all or any part of any discovery procedure." 166 Ill. 2d
R. 201(c)(2). Thus, we believe the trial court has the inherent
authority to review Dr. Stinson's files in camera to determine
which documents in fact constitute personal notes.
We note that the privilege the Act creates belongs to the
patient; the Act does not create a psychiatrist s privilege against
malpractice suits. Section 4 of the Act provides that the
recipient is entitled to inspect and copy his or her records. 740
ILCS 110/4(a)(2) (West 1996). Section 10 provides that the
privilege is waived if the recipient introduces his mental
condition "or any aspect of his services received" into a
proceeding. 740 ILCS 110/10(a)(1) (West 1996). Although the Act
defines "records" as excluding personal notes (740 ILCS 110/2 (West
1996)), construing the statute as Dr. Stinson suggests would permit
a therapist to defeat the intent of the statute and deny a patient
access to his own records simply by declaring that all his records
relating to the patient constitute personal notes.
For example, a potential medical malpractice defendant, such
as Dr. Stinson, could refuse to turn over any portion of his file
regarding his treatment of the patient, claiming that all the
documents were personal notes and submitting an affidavit to that
effect. Under Stinson's reading of the statute, the trial court
would be completely powerless to review the propriety of that claim
and would have no choice but to reject the discovery request. We
are confident the legislature did not intend such an absurd result.
Allowing a party or potential party to an action to determine
unilaterally which documents he will produce for discovery creates
an obvious potential for mischief. Such a reading of the Act
stands the privilege on its head, creating a psychiatrist s
privilege rather than a patient s privilege, and could not have
been intended by the legislature.
Moreover, we agree with the estate that reading the Act as
Stinson suggests would raise separation of powers concerns. See
Ill. Const. 1970, art. II, 1. In Best, the supreme court
reiterated that determining the relevance of evidence and
controlling the discovery process are inherently judicial
functions, and legislative enactments that attempt to usurp that
function are invalid. Best, slip op. at 61-62. Stinson's reading
of the statute, that a particular class of documents has been
declared categorically off-limits, even to a trial court in camera
while supervising discovery in a lawsuit, potentially runs afoul of
the separation of powers provision. Because we have a duty to
construe a statute, if possible, so that it is constitutional (City
of Chicago v. Morales, 177 Ill. 2d 440, 448 (1997)), these
considerations militate in favor of rejecting Stinson's proposed
construction of the statute.
Ironically, Dr. Stinson relies on cases that discuss the
importance of the privilege to the patient. In Jaffee v. Redmond,
518 U.S. ___, 135 L. Ed. 2d 337, 116 S. Ct. 1923 (1996), the
Supreme Court discussed the importance of confidentiality to the
patient-therapist relationship. The court noted that the nature of
psychotherapy requires that the patient be free to express his or
her innermost thoughts. A patient's knowledge that those
conversations could be disclosed to third parties at a later date
would likely chill the relationship. Jaffee, 518 U.S. at ___, 135 L. Ed. 2d at 345, 116 S. Ct. at 1928-29. These concerns obviously
are not implicated where a patient (or the personal representative
of a deceased patient) seeks the disclosure of her own records. In
fact, recognizing a broad privilege in this situation might have
the same chilling effect that concerned the court in Jaffee. A
patient may not be able to establish a relationship of trust with
a therapist if she knows that he may arbitrarily withhold her file
from her at a later date.
We conclude that the trial court did not err by requiring the
production for in camera inspection of those documents identified
by Dr. Stinson as personal notes. We reiterate that the estate
does not challenge the provision of the statute that personal notes
are privileged from discovery. Thus, any documents that the trial
court determines are personal notes shall not be disclosed to the
estate or its attorneys. If the court determines that any
documents are not personal notes, the court may order their
disclosure if it finds the other requirements of section 10(a)(2)
have been met.
The judgment of the Winnebago County circuit court is
affirmed, and the cause is remanded for further proceedings.
Affirmed and remanded.
GEIGER, P.J., and BOWMAN, J., concur.