Kunkel v. Walton
Annotate this Case
Kunkel v. Walton, No. 81176 (11/20/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing
of the opinion to request a rehearing. Also, opinions are subject to modification,
correction or withdrawal at anytime prior to issuance of the mandate by the
Clerk of the Court. Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following opinion will be
published by the Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 81176--Agenda 14--March 1997.
SANDRA S. KUNKEL et al., Appellees, v. LAUREL A. WALTON, D.O., et
al., Appellants.
Opinion filed November 20, 1997.
JUSTICE NICKELS delivered the opinion of the court:
In this appeal, we consider the constitutionality of section 2--1003(a) of the
Code of Civil Procedure (735 ILCS 5/2--1003(a) (West 1994)) as amended by the
Civil Justice Reform Amendments of 1995 (Pub. Act 89--7, eff. March 9, 1995).
As described in more detail later, section 2--1003(a) provides that any party who
alleges a claim for bodily injury or disease shall be deemed to waive any privilege
of confidentiality with his or her health care providers. Section 2--1003(a) further
provides that upon request of any other party, the party claiming injury shall sign
and deliver separate consent forms authorizing each of his or her health care
providers to disclose medical records to the requesting party and to engage in ex
parte conferences with the requesting party's attorneys.
Plaintiffs, Sandra and Ronald Kunkel, brought this action in the circuit
court of Macon County against defendants, Laurel A. Walton, D.O., Herbert W.
Thompson, M.D., and Mary E. Herald, M.D., seeking recovery for medical
malpractice in the course of Dr. Walton's treatment of Mrs. Kunkel. Mr. Kunkel
sought recovery from defendants for loss of consortium and under the Rights of
Married Persons Act (750 ILCS 65/15 (West 1994)). Defendants served plaintiffs
with a request for consents authorizing the release of medical information pursuant
to section 2--1003(a). Plaintiffs thereafter filed a motion for a protective order in
which they challenged the constitutionality of section 2--1003(a). Following a
hearing, the trial court entered an order declaring section 2--1003(a)
unconstitutional. The trial court concluded that section 2--1003(a) violated the
separation of powers doctrine (Ill. Const. 1970, art. II, sec. 1) and the prohibition
of unreasonable invasions of privacy (Ill. Const. 1970, art. I, sec. 6). The trial
court also ruled that the statute was unconstitutional because "the required
Authorization of Release of Medical Information is overly coercive and prevents
a Plaintiff from making a free and consensual decision." Defendants appealed
directly to this court from the trial court's order. 134 Ill. 2d R. 302(a). We
allowed a motion by Illinois Attorney General James E. Ryan to intervene in this
appeal, and have allowed various organizations to appear as amici curiae.[fn1]
ANALYSIS
I
Section 2--1003(a) provides, in pertinent part:
"Any party who by pleading alleges any claim for bodily
injury or disease, including mental health injury or disease, shall be
deemed to waive any privilege between the injured person and each
health care provider who has furnished care at any time to the
injured person. *** Any party alleging any such claim *** shall,
upon written request of any other party who has appeared in the
action, sign and deliver within 28 days to the requesting party a
separate Consent authorizing each person or entity who has
provided health care at any time to the allegedly injured person to:
(1) furnish the requesting party or the party's
attorney a complete copy of the chart or record of health
care in the possession of the provider ***;
(2) permit the requesting party or the party's
attorney to inspect the original chart or record of health
care [at the provider's regular business location during
regular business hours] ***;
(3) accept and consider charts and other records of
health care by others, radiographic films, and documents,
including reports, deposition transcripts, and letters,
furnished to the health care provider by the requesting party
or the party's attorney, before giving testimony in any
deposition or trial or other hearing;
(4) confer with the requesting party's attorney before
giving testimony in any deposition or trial or other hearing
and engage in discussion with the attorney on the subjects
of the health care provider's observations related to the
allegedly injured party's health, including the following: the
patient history ***; the health care provider's opinions
related to the patient's state of health, prognosis, etiology,
or cause of the patient's state of health at any time, and the
nature and quality of care by other health care providers,
including whether any standard of care was or was not
breached; and the testimony the health care provider would
give in response to any point of interrogation, and the
education, experience, and qualifications of the health care
provider.
* * *
A request for a Consent under this subsection (a) does not
preclude such subsequent requests as may reasonably be made
seeking to expand the scope of an earlier Consent which was
limited to less than all the authority permitted by subdivisions (1)
through (4) of this subsection (a) or seeking additional Consents for
other health care providers.
The provisions of this subsection (a) do not restrict the right
of any party to discovery pursuant to rule." 735 ILCS 5/2--1003(a)
(West 1996).
Under section 2--1003(a) documents and information obtained pursuant to a
consent are confidential and may only be disclosed to the parties, their attorneys,
their insurers' representatives and certain witnesses and consultants. 735 ILCS 5/2-
-1003(a) (West 1996). Section 2--1003(a) also specifically provides that if a party
claiming injury refuses to comply with a request for a consent, the trial court, on
motion, shall issue an order authorizing disclosure to the extent set forth in the
statute or dismissing the case. 735 ILCS 5/2--1003(a) (West 1996).
The requirement that personal injury plaintiffs authorize in writing the
disclosure of medical information, and further authorize their physicians and other
health care providers to engage in informal communications with the opposing
party's attorneys, represents the General Assembly's response to the decision of
the appellate court in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581
(1986). In Petrillo, the court upheld an order barring a defense attorney in a
product liability case from engaging in ex parte conferences[fn2] with the
plaintiff's treating physicians. The Petrillo court based its holding on the fiduciary
relationship existing between physician and patient and the physician's ethical
obligation as a member of the medical profession to safeguard patient confidences.
The court concluded that a patient who files suit implicitly consents to the release
of medical information through the methods of discovery authorized by the
supreme court rules, but "does not, by simply filing suit, consent to his physician
discussing that patient's medical confidences with third parties outside court-
authorized discovery methods, nor does he consent to his physician discussing the
patient's confidences in an ex parte conference with the patient's legal adversary."
Petrillo, 148 Ill. App. 3d at 591. By its terms, section 2--1003(a) compels the
patient to provide express written authorization for disclosure beyond the scope
of the implied consent described in Petrillo.
With this general background in mind, we turn to the constitutional issues.
We first address the question of whether section 2--1003 represents an
impermissible encroachment on the authority of the judicial branch. The doctrine
of separation of powers is encompassed in section 1 of article II of the Illinois
Constitution of 1970, which provides that "[t]he legislative, executive and judicial
branches are separate. No branch shall exercise powers properly belonging to
another." Section 1 of article VI of the Illinois Constitution of 1970 provides that
"[t]he judicial power is vested in a Supreme Court, an Appellate Court and Circuit
Courts." Section 16 of article VI provides, in pertinent part, "[g]eneral
administrative and supervisory authority over all courts is vested in the Supreme
Court and shall be exercised by the Chief Justice in accordance with its rules."
The judicial power has been described as including the adjudication and
application of law and the procedural administration of the courts. In re S.G., 175 Ill. 2d 471, 487 (1997). It is clear that this court possesses rulemaking authority
to regulate the trial of cases. Strukoff v. Strukoff, 76 Ill. 2d 53, 58 (1979).
The separation of powers provision does not seek to achieve a complete
divorce between the branches of government; the purpose of the provision is to
prevent the whole power of two or more branches from residing in the same
hands. S.G., 175 Ill. 2d at 486-87. There are areas in which separate spheres of
governmental authority overlap and certain functions are thereby shared. S.G., 175 Ill. 2d at 487. Where matters of judicial procedure are at issue, the constitutional
authority to promulgate procedural rules can be concurrent between the court and
the legislature. The legislature may enact laws that complement the authority of
the judiciary or that have only a peripheral effect on court administration. People
v. Williams, 124 Ill. 2d 300, 306-07 (1988). Ultimately, however, this court retains
primary constitutional authority over court procedure. Consequently, the separation
of powers principle is violated when a legislative enactment unduly encroaches
upon the inherent powers of the judiciary, or directly and irreconcilably conflicts
with a rule of this court on a matter within the court's authority. People v. Walker,
119 Ill. 2d 465, 475-76 (1988); People v. Bainter, 126 Ill. 2d 292, 303 (1989);
Williams, 124 Ill. 2d at 306-07; S.G., 175 Ill. 2d at 487. With regard to separation
of powers violations resulting from conflicts between statutory provisions and
court rules, this court has indicated that even where a statute, standing alone, does
not violate the separation of powers clause, "the legislature is without authority
to interfere with `a product of this court's supervisory and administrative
responsibility.' " People v. Joseph, 113 Ill. 2d 36, 45 (1986), quoting People v.
Jackson, 69 Ill. 2d 252, 259 (1977). The principle that court rules will supersede
inconsistent statutory provisions is connected to " `the undisputed duty of the court
to protect its judicial powers from encroachment by legislative enactments, and
thus preserve an independent judicial department.' " People v. Cox, 82 Ill. 2d 268,
275 (1980), quoting Agran v. Checker Taxi Co., 412 Ill. 145, 149 (1952).
Legislative enactments enjoy a strong presumption of constitutionality, and
the burden rests upon the challenger to demonstrate the invalidity of a particular
statute. S.G., 175 Ill. 2d at 486. If legislation conflicts with a rule of the judiciary,
courts will seek to reconcile the legislation with the judicial rule. Williams, 124 Ill. 2d at 306. However, where this is not reasonably possible, this court has not
hesitated to strike down legislative enactments governing judicial procedure. For
instance, in People v. Joseph, 113 Ill. 2d 36 (1986), this court invalidated a
statutory provision requiring that post-conviction proceedings be conducted by a
judge who was not involved in the original trial proceedings. This court concluded
that the provision was inconsistent with Supreme Court Rule 21(b), which
provided the chief judge of each circuit may enter general orders providing for the
assignment of judges. People v. Cox, 82 Ill. 2d 268 (1980), dealt with the validity
of a statutory provision which created a rebuttable presumption that sentences
imposed for criminal convictions were proper, but authorized reviewing courts to
modify the sentence and enter any sentence the trial judge could have entered.
This court struck down this statute on the basis that it was in direct conflict with
cases that had interpreted an applicable supreme court rule as providing for review
of sentencing decisions and reduction of sentences under an abuse of discretion
standard. In People v. Jackson, 69 Ill. 2d 252 (1977), this court invalidated a 1975
amendment to the Code of Criminal Procedure of 1963 that gave each opposing
counsel the right to conduct his own voir dire of prospective jurors. This provision
was held to be in conflict with Supreme Court Rule 234, which directed the court
to conduct voir dire with questions deemed appropriate and such additional
questions or direct inquiry by the parties as the court deems proper.
The statutory provision in the case at bar represents a similar encroachment
on this court's paramount authority to regulate judicial procedure by court rule.
Supreme Court Rule 201 provides, in pertinent part:
"Rule 201. General Discovery Provisions
(a) Discovery Methods. Information is obtainable as
provided in these rules through any of the following discovery
methods: depositions upon oral examination or written questions,
written interrogatories to parties, discovery of documents, objects
or tangible things, inspection of real estate, requests to admit and
physical and mental examination of persons. Duplication of
discovery methods to obtain the same information should be
avoided.
(b) Scope of Discovery.
(1) Full Disclosure Required. Except as provided in
these rules, a party may obtain by discovery full disclosure
regarding any matter relevant to the subject matter involved
in the pending action, whether it relates to the claim or
defense of the party seeking disclosure or of any other party
***. ***
(2) Privilege and Work Product. All matters that are
privileged against disclosure on the trial *** are privileged
against disclosure through any discovery procedure. ***
***
(c) Prevention of Abuse.
(1) Protective Orders. The court may at any time on
its own initiative, or on motion of any party or witness,
make a protective order as justice requires, denying,
limiting, conditioning, or regulating discovery to prevent
unreasonable annoyance, expense, embarrassment,
disadvantage, or oppression.
(2) Supervision of Discovery. Upon the motion of
any party or witness, on notice to all parties, or on its own
initiative without notice, the court may supervise all or any
part of any discovery procedure." (Emphasis added.) 166 Ill.
2d R. 201.
Rule 201 and related rules governing specific discovery methods form a
comprehensive scheme for fair and efficient discovery with judicial oversight to
protect litigants from harassment. The consent procedure under section 2--1003(a)
is inconsistent with this scheme and substantially undermines it. First of all, the
consent procedure set forth in section 2--1003(a) is simply unauthorized by Rule
201(a), which specifies that information is obtainable "as provided in these rules"
and enumerates the authorized methods of discovery. More importantly, section
2--1003(a) circumvents the relevance requirement set forth in Rule 201(b)(1). To
be certain, the scope of information considered "relevant" under this court's
discovery rules is expansive, including not only evidence that would itself be
admissible at trial, but also information leading to the discovery of admissible
evidence. See Monier v. Chamberlain, 31 Ill. 2d 400, 403 (1964); 166 Ill. 2d R.
201(b), Committee Comments. The concept of relevance facilitates trial
preparation while safeguarding against improper and abusive discovery. In
addition, the relevance requirement has a constitutional dimension which is
discussed later.
Unlike our rules, however, section 2--1003(a) places no limitation
whatsoever on the scope of medical information subject to disclosure. To the
contrary, the mandated disclosure is described in the broadest possible terms. The
plaintiff must consent to the disclosure of medical information by "each person
or entity who has provided health care at any time," and must authorize them to
furnish "a complete copy of the chart or record of health care in the possession
of the provider." (Emphasis added.) 735 ILCS 5/2--1003(a) (West 1996). The
plaintiff must also authorize ex parte communications with his or her health care
providers concerning medical history and the health care provider's observations
related to "the patient's state of health, prognosis, etiology, or cause of the
patient's state of health at any time." (Emphasis added.) 735 ILCS 5/2--1003(a)(4)
(West 1996). There is no language in this provision in any manner restricting the
consent requirement to the injury which is the subject of the lawsuit or to related
medical conditions. Under section 2--1003(a), as a condition of proceeding with
his or her lawsuit, an injured party must consent to the disclosure of medical
information wholly unrelated the injury for which recovery is sought. Indeed,
under the unqualified language of section 2--1003(a), the injured party may have
to consent to the release of complete medical records held by health care providers
who have never treated the injured party for any condition even remotely related
to the subject matter of the lawsuit. The consent procedure set forth in section 2--
1003(a) goes well beyond the legitimate objectives of discovery as reflected in this
court's rules. Instead, section 2--1003(a) seems to be designed to discourage tort
victims from pursuing valid claims by subjecting them to the threat of harassment
and embarrassment through unreasonable and oppressive disclosure requirements.
Defendants and the Attorney General have attempted to justify section 2--
1003(a) on the basis that the physician-patient privilege did not exist at common
law (see Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850, 852-53
(1982)) but is instead a creature of statute. Thus, defendants and the Attorney
General contend that the General Assembly is empowered to redefine the scope
of the privilege. But section 2--1003(a) goes beyond merely delineating the scope
of the physician-patient privilege: rather it essentially provides a mechanism for
discovery of medical information that, by failing to meet the requirement of
relevance, would not be discoverable regardless of the privilege. Stated differently,
defendants and the Attorney General ignore the fact that the relevance requirement
is an independent constraint on discovery: information does not become relevant--
and thus subject to discovery--simply because it is not privileged.
Defendants and the Attorney General also insist that section 2--1003(a)
affords the trial court discretion to limit disclosure, thereby safeguarding against
the improper and abusive use of the consent procedure. They submit that the
existence of such discretion is implicit in certain language in the statute and is
supported by the legislative history of the provision. Plaintiffs respond that section
2--1003(a) provides for no such judicial oversight. We agree with plaintiffs.
The question presented is one of statutory construction, and familiar
principles apply. The cardinal rule of statutory construction, to which all other
canons and rules are subordinate, is to ascertain and give effect to the true intent
and meaning of the legislature. Solich v. George & Anna Portes Cancer
Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994). In doing so the
court should look first to the statutory language, which is the best indication of the
legislature's intent. Solich, 158 Ill. 2d at 81. Where the meaning of an enactment
is unclear from the statutory language itself, the court may look beyond the
language employed and consider the purpose behind the law and the evils the law
was designed to remedy. Solich, 158 Ill. 2d at 81. Where statutory language is
ambiguous, it is appropriate to examine the legislative history. People v. Hickman,
163 Ill. 2d 250, 261 (1994). However, when the language is clear, it will be given
effect without resort to other aids for construction. Hickman, 163 Ill. 2d at 261;
Solich, 158 Ill. 2d at 81.
Here, the language of the statute at issue is clear and unequivocal. In
unqualified and unconditional terms, the statute directs personal injury plaintiffs
to deliver signed consents to the release of medical information. There is no
reference whatsoever to any form of judicial oversight or any discretionary power
to safeguard against abusive use of the consent procedure. As written, section 2--
1003(a) envisions disclosure of medical information without limitation, and
without regard to the relevance of the information or the oppressive nature of
disclosure. There is no rule of construction which authorizes a court to declare that
the legislature did not mean what the plain language of the statute imports, and
a court is not at liberty to depart from the plain language of a statute by reading
into it exceptions, limitations or conditions that the legislature did not express.
Solich, 158 Ill. 2d at 83.
In support of their construction, defendants and the Attorney General note
language in section 2--1003(a) indicating that "[t]he provisions of this subsection
(a) do not restrict the right of any party to discovery pursuant to rule." Defendants
and the Attorney General apparently believe the "right to discovery pursuant to
rule" embraces the right to apply for a protective order against requests for
consents under section 2--1003(a). We disagree. Under our rules, discovery
methods consist of depositions, written interrogatories to the parties, discovery of
documents, objects or tangible things, inspection of real estate, requests to admit,
and physical and mental examination of persons. 166 Ill. 2d R. 201. The issuance
of a protective order is not a type of discovery, rather it is a means of limiting
discovery. The language in section 2--1003(a) preserving the right to discovery
pursuant to rule only means that the legislature did not intend for the consent
procedure to be exclusive, and that litigants may avail themselves of the methods
of discovery provided for by our rules. In no way does this language place any
limits on the consent procedure under section 2--1003(a).
Defendants and the Attorney General also rely on the portion of section 2--
1003(a) stating that "[a] request for a Consent *** does not preclude such
subsequent requests as may reasonably be made seeking to expand the scope of
an earlier Consent which was limited to less than all the authority permitted by
subdivisions (1) through (4) of this subsection (a) ***." (Emphasis added.) 735
ILCS 5/2--1003(a) (West 1994). Defendants and the Attorney General maintain
that because the statute provides for expansion of a consent previously limited by
a court, it necessarily recognizes the court's discretion to limit the scope of
consents. The flaw in this argument is that this portion of the statute makes no
reference to the consent being limited "by a court." Rather the reference to a
limited consent simply means one which is limited by its own terms or is limited
on its face. This provision contemplates the situation where, for whatever reason,
a defendant initially requests consent to disclosure of less than all the types of
medical information authorized under the statute, and later seeks to expand the
request. Defendants' and the Attorney General's interpretation that "limited"
means limited by the court is not a reasonable or plausible alternative. Any
authority on the part of the trial court to limit the scope of a consent would be
meaningless if the requesting party could simply submit additional consents
seeking the same type of disclosure.
Defendants and the Attorney General also rely on legislative history to
support their view that section 2--1003(a) provides for judicial oversight of the
release of medical information. During the proceedings in the House of
Representatives, the sponsors of this measure indicated that under the consent
procedure, the plaintiff had 28 days to obtain a court order limiting the extent of
disclosure. See 89th Ill. Gen. Assem., House Proceedings, February 16, 1995, at
142 (statements of Representative Cross); 89th Ill. Gen. Assem., House
Proceedings, February 16, 1995, at 164-65 (statements of Representative Ryder).
However, because the language of the statute is plain and unambiguous, we have
no occasion to consider its legislative history. Envirite Corp. v. Illinois
Environmental Protection Agency, 158 Ill. 2d 210, 216-17 (1994). We further note
that while courts give some consideration to statements by a sponsor of a bill,
such statements are not controlling. People v. Hickman, 163 Ill. 2d 250, 262
(1994). The statutory language at issue here is clear. The plaintiff's obligation to
consent to the disclosure of medical information is absolute and unqualified;
nowhere is it provided that the trial court may regulate the scope of disclosure.
Defendants and the Attorney General also direct our attention to a number
of decisions where this court has upheld procedural statutes against separation of
powers challenges. See, e.g., DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57
(1992); Strukoff v. Strukoff, 76 Ill. 2d 53 (1979); People v. Walker, 119 Ill. 2d 465
(1988); Niven v. Siqueira, 109 Ill. 2d 357 (1985). The cases cited are inapposite,
however, as they do not involve any claimed conflict between a statute and a
supreme court rule. The trial court correctly ruled that section 2--1003(a)
represents an impermissible encroachment upon the authority of the judicial
branch.
II
The trial court also concluded that section 2--1003(a) violates the right to
privacy expressly set forth in our state constitution. We agree. Our constitution
provides that "[t]he people shall have the right to be secure in their persons,
houses, papers and other possessions against unreasonable searches, seizures,
invasions of privacy or interceptions of communications by eavesdropping devices
or other means." (Emphasis added.) Ill. Const. 1970, art. I, sec. 6. This court has
observed that the Illinois Constitution goes beyond federal constitutional
guarantees by expressly recognizing a zone of personal privacy, and that the
protection of that privacy is stated broadly and without restrictions. In re May
1991 Will County Grand Jury, 152 Ill. 2d 381, 391 (1992). The confidentiality of
personal medical information is, without question, at the core of what society
regards as a fundamental component of individual privacy. Physicians are privy
to the most intimate details of their patients' lives, touching on diverse subjects
like mental health, sexual health and reproductive choice. Moreover, some medical
conditions are poorly understood by the public, and their disclosure may cause
those afflicted to be unfairly stigmatized. Respect for the privacy of medical
information is a central feature of the physician-patient relationship. Under the
Hippocratic Oath, and modern principles of medical ethics derived from it,
physicians are ethically bound to maintain patient confidences. See Petrillo v.
Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 589 (1986).
In addition, this court has recognized that "[a] person has a reasonable
expectation that he will not be forced to submit to a close scrutiny of his personal
characteristics, unless for a valid reason. *** [T]he individual's privacy interest
in his physical person *** must be protected." Will County Grand Jury, 152 Ill. 2d at 391-92. We believe that this privacy interest pertaining to individual physical
characteristics necessarily encompasses personal medical information.
The text of our constitution does not accord absolute protection against
invasions of privacy. Rather, it is unreasonable invasions of privacy that are
forbidden. In the context of civil discovery, reasonableness is a function of
relevance. In Firebaugh v. Traff, 353 Ill. 82 (1933), a foreclosure action was
brought by the trustee of a deed of trust securing a bond issue. The trustee was
held in contempt for refusing to comply with a subpoena requiring disclosure of
the names and addresses of the bondholders. The trustee argued that because the
names of the bondholders were not pertinent or material to the case, the order that
the names be produced violated the constitutional prohibition against unreasonable
searches and seizures. This court agreed:
"While courts have inherent power to order the production of books
and papers, yet it is required that such order in all cases shall be a
reasonable one. The constitutional protection is against
unreasonable searches and seizures. [Citation.] It has been
uniformly held that before an order can be entered for the
production of books or writings by one of the parties there must be
good and sufficient cause shown that the evidence sought to be
obtained is pertinent to the issues in the case. *** Such an order
cannot be used to procure a general investigation of a transaction
not material to the issue." Firebaugh, 353 Ill. at 84-85.
While Firebaugh involved the prohibition against unreasonable searches
and seizures, the same analysis applies where the privacy interest in medical
information is involved. It is reasonable to require full disclosure of medical
information that is relevant to the issues in the lawsuit. But as previously noted,
section 2--1003(a) requires a blanket consent to disclosure of all medical
information without regard to the issues being litigated. The scope of the required
disclosure is unreasonable and unconstitutional.
Defendants and the Attorney General insist that section 2--1003(a) is
constitutional because it contains adequate safeguards protecting the plaintiff's
right to privacy. First, they contend that the trial court may limit the scope of
disclosure under section 2--1003(a). This argument is without merit, as we have
already concluded that section 2--1003(a) makes no provision for any judicial
control of the scope of disclosure. Defendants and the Attorney General also point
out that section 2--1003(a) provides that "[a]ll documents and information obtained
pursuant to a Consent shall be considered confidential" and may only be disclosed
to "the parties to the action, their attorneys, their insurers' representatives, and
witnesses and consultants whose testimony concerns medical treatment, prognosis,
or rehabilitation, including expert witnesses." However, even when limited to the
persons listed, disclosure of highly personal medical information having no
bearing on the issues in the lawsuit is a substantial and unjustified invasion of
privacy.
Defendants also contend that section 2--1003(a) does not run afoul of the
prohibition of unreasonable invasions of privacy because, according to defendants,
that prohibition "does not apply to actions between private parties." However,
section 2--1003(a) provides for state action as the means to compel the disclosure
of constitutionally protected medical information: where a party fails to tender a
consent the trial court may either dismiss the lawsuit or enter an order authorizing
disclosure of the requested medical information. Defendants' argument is without
merit.
Accordingly, the trial court correctly ruled that section 2--1003(a) violates
the constitutional prohibition of unreasonable invasions of privacy.
III
In addition to holding that section 2--1003(a) violated the doctrine of
separation of powers and the prohibition against unreasonable invasions of
privacy, the trial court also ruled that the statute was unconstitutional because "the
Authorization of Release of Medical Information is overly coercive and prevents
a Plaintiff from making a free and consensual decision." While the trial court cited
specific provision of the constitution as the basis for this ruling, on appeal
plaintiffs rely on section 1 of article I of the Illinois Constitution of 1970, which
states:
"All men are by nature free and independent and have
certain inherent and inalienable rights among which are life, liberty
and the pursuit of happiness. To secure these rights and the
protection of property, governments are instituted among men,
deriving their just powers from the consent of the governed." Ill.
Const. 1970, art. I, sec. 1.
With reference to an almost identical provision in the Illinois Constitution
of 1870 (see Ill. Const. 1870, art. II, sec. 1) it has been observed that this section
"is not generally considered, of itself, an operative constitutional limitation upon
the exercise of governmental powers. Rather it is considered supplemental to and
implicitly within [the due process clause]. There is thus little purpose in treating
this section as an independent source of constitutional law." G. Braden & R.
Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 8
(1969). Accordingly, we find no adequately articulated basis for the trial court's
ruling that section 2--1003(a) is unconstitutional because it is "overly coercive."
However, because we agree with the trial court's other constitutional rulings, we
affirm the order declaring section 2--1003(a) unconstitutional.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
JUSTICE HEIPLE took no part in the consideration or decision of this
case.
[fn1] Amicus briefs asserting that section 2--1003(a) is constitutional, and
advocating reversal of the trial court's order, have been filed by the Illinois
Hospital & Healthsystems Association, the Metropolitan Chicago Healthcare
Council, the Illinois Civil Justice League, the Illinois Manufacturers' Association,
the Illinois State Medical Society, and the Illinois Association of Defense Trial
Counsel.
[fn2] The Petrillo court used the term "ex parte" to describe "any discussion that
defense counsel has with a plaintiff's treating physician which is not pursuant to
the authorized methods of discovery outlined by Supreme Court Rule 201."
Petrillo, 148 Ill. App. 3d at 584 n.1. The term will be used in the same fashion
in this opinion.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing
of the opinion to request a rehearing. Also, opinions are subject to modification,
correction or withdrawal at anytime prior to issuance of the mandate by the
Clerk of the Court. Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following opinion will be
published by the Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 81176--Agenda 14--March 1997.
SANDRA S. KUNKEL et al., Appellees, v. LAUREL A. WALTON, D.O., et
al., Appellants.
Opinion filed November 20, 1997.
JUSTICE NICKELS delivered the opinion of the court:
In this appeal, we consider the constitutionality of section 2--1003(a) of the
Code of Civil Procedure (735 ILCS 5/2--1003(a) (West 1994)) as amended by the
Civil Justice Reform Amendments of 1995 (Pub. Act 89--7, eff. March 9, 1995).
As described in more detail later, section 2--1003(a) provides that any party who
alleges a claim for bodily injury or disease shall be deemed to waive any privilege
of confidentiality with his or her health care providers. Section 2--1003(a) further
provides that upon request of any other party, the party claiming injury shall sign
and deliver separate consent forms authorizing each of his or her health care
providers to disclose medical records to the requesting party and to engage in ex
parte conferences with the requesting party's attorneys.
Plaintiffs, Sandra and Ronald Kunkel, brought this action in the circuit
court of Macon County against defendants, Laurel A. Walton, D.O., Herbert W.
Thompson, M.D., and Mary E. Herald, M.D., seeking recovery for medical
malpractice in the course of Dr. Walton's treatment of Mrs. Kunkel. Mr. Kunkel
sought recovery from defendants for loss of consortium and under the Rights of
Married Persons Act (750 ILCS 65/15 (West 1994)). Defendants served plaintiffs
with a request for consents authorizing the release of medical information pursuant
to section 2--1003(a). Plaintiffs thereafter filed a motion for a protective order in
which they challenged the constitutionality of section 2--1003(a). Following a
hearing, the trial court entered an order declaring section 2--1003(a)
unconstitutional. The trial court concluded that section 2--1003(a) violated the
separation of powers doctrine (Ill. Const. 1970, art. II, sec. 1) and the prohibition
of unreasonable invasions of privacy (Ill. Const. 1970, art. I, sec. 6). The trial
court also ruled that the statute was unconstitutional because "the required
Authorization of Release of Medical Information is overly coercive and prevents
a Plaintiff from making a free and consensual decision." Defendants appealed
directly to this court from the trial court's order. 134 Ill. 2d R. 302(a). We
allowed a motion by Illinois Attorney General James E. Ryan to intervene in this
appeal, and have allowed various organizations to appear as amici curiae.[fn1]
ANALYSIS
I
Section 2--1003(a) provides, in pertinent part:
"Any party who by pleading alleges any claim for bodily
injury or disease, including mental health injury or disease, shall be
deemed to waive any privilege between the injured person and each
health care provider who has furnished care at any time to the
injured person. *** Any party alleging any such claim *** shall,
upon written request of any other party who has appeared in the
action, sign and deliver within 28 days to the requesting party a
separate Consent authorizing each person or entity who has
provided health care at any time to the allegedly injured person to:
(1) furnish the requesting party or the party's
attorney a complete copy of the chart or record of health
care in the possession of the provider ***;
(2) permit the requesting party or the party's
attorney to inspect the original chart or record of health
care [at the provider's regular business location during
regular business hours] ***;
(3) accept and consider charts and other records of
health care by others, radiographic films, and documents,
including reports, deposition transcripts, and letters,
furnished to the health care provider by the requesting party
or the party's attorney, before giving testimony in any
deposition or trial or other hearing;
(4) confer with the requesting party's attorney before
giving testimony in any deposition or trial or other hearing
and engage in discussion with the attorney on the subjects
of the health care provider's observations related to the
allegedly injured party's health, including the following: the
patient history ***; the health care provider's opinions
related to the patient's state of health, prognosis, etiology,
or cause of the patient's state of health at any time, and the
nature and quality of care by other health care providers,
including whether any standard of care was or was not
breached; and the testimony the health care provider would
give in response to any point of interrogation, and the
education, experience, and qualifications of the health care
provider.
* * *
A request for a Consent under this subsection (a) does not
preclude such subsequent requests as may reasonably be made
seeking to expand the scope of an earlier Consent which was
limited to less than all the authority permitted by subdivisions (1)
through (4) of this subsection (a) or seeking additional Consents for
other health care providers.
The provisions of this subsection (a) do not restrict the right
of any party to discovery pursuant to rule." 735 ILCS 5/2--1003(a)
(West 1996).
Under section 2--1003(a) documents and information obtained pursuant to a
consent are confidential and may only be disclosed to the parties, their attorneys,
their insurers' representatives and certain witnesses and consultants. 735 ILCS 5/2-
-1003(a) (West 1996). Section 2--1003(a) also specifically provides that if a party
claiming injury refuses to comply with a request for a consent, the trial court, on
motion, shall issue an order authorizing disclosure to the extent set forth in the
statute or dismissing the case. 735 ILCS 5/2--1003(a) (West 1996).
The requirement that personal injury plaintiffs authorize in writing the
disclosure of medical information, and further authorize their physicians and other
health care providers to engage in informal communications with the opposing
party's attorneys, represents the General Assembly's response to the decision of
the appellate court in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581
(1986). In Petrillo, the court upheld an order barring a defense attorney in a
product liability case from engaging in ex parte conferences[fn2] with the
plaintiff's treating physicians. The Petrillo court based its holding on the fiduciary
relationship existing between physician and patient and the physician's ethical
obligation as a member of the medical profession to safeguard patient confidences.
The court concluded that a patient who files suit implicitly consents to the release
of medical information through the methods of discovery authorized by the
supreme court rules, but "does not, by simply filing suit, consent to his physician
discussing that patient's medical confidences with third parties outside court-
authorized discovery methods, nor does he consent to his physician discussing the
patient's confidences in an ex parte conference with the patient's legal adversary."
Petrillo, 148 Ill. App. 3d at 591. By its terms, section 2--1003(a) compels the
patient to provide express written authorization for disclosure beyond the scope
of the implied consent described in Petrillo.
With this general background in mind, we turn to the constitutional issues.
We first address the question of whether section 2--1003 represents an
impermissible encroachment on the authority of the judicial branch. The doctrine
of separation of powers is encompassed in section 1 of article II of the Illinois
Constitution of 1970, which provides that "[t]he legislative, executive and judicial
branches are separate. No branch shall exercise powers properly belonging to
another." Section 1 of article VI of the Illinois Constitution of 1970 provides that
"[t]he judicial power is vested in a Supreme Court, an Appellate Court and Circuit
Courts." Section 16 of article VI provides, in pertinent part, "[g]eneral
administrative and supervisory authority over all courts is vested in the Supreme
Court and shall be exercised by the Chief Justice in accordance with its rules."
The judicial power has been described as including the adjudication and
application of law and the procedural administration of the courts. In re S.G., 175 Ill. 2d 471, 487 (1997). It is clear that this court possesses rulemaking authority
to regulate the trial of cases. Strukoff v. Strukoff, 76 Ill. 2d 53, 58 (1979).
The separation of powers provision does not seek to achieve a complete
divorce between the branches of government; the purpose of the provision is to
prevent the whole power of two or more branches from residing in the same
hands. S.G., 175 Ill. 2d at 486-87. There are areas in which separate spheres of
governmental authority overlap and certain functions are thereby shared. S.G., 175 Ill. 2d at 487. Where matters of judicial procedure are at issue, the constitutional
authority to promulgate procedural rules can be concurrent between the court and
the legislature. The legislature may enact laws that complement the authority of
the judiciary or that have only a peripheral effect on court administration. People
v. Williams, 124 Ill. 2d 300, 306-07 (1988). Ultimately, however, this court retains
primary constitutional authority over court procedure. Consequently, the separation
of powers principle is violated when a legislative enactment unduly encroaches
upon the inherent powers of the judiciary, or directly and irreconcilably conflicts
with a rule of this court on a matter within the court's authority. People v. Walker,
119 Ill. 2d 465, 475-76 (1988); People v. Bainter, 126 Ill. 2d 292, 303 (1989);
Williams, 124 Ill. 2d at 306-07; S.G., 175 Ill. 2d at 487. With regard to separation
of powers violations resulting from conflicts between statutory provisions and
court rules, this court has indicated that even where a statute, standing alone, does
not violate the separation of powers clause, "the legislature is without authority
to interfere with `a product of this court's supervisory and administrative
responsibility.' " People v. Joseph, 113 Ill. 2d 36, 45 (1986), quoting People v.
Jackson, 69 Ill. 2d 252, 259 (1977). The principle that court rules will supersede
inconsistent statutory provisions is connected to " `the undisputed duty of the court
to protect its judicial powers from encroachment by legislative enactments, and
thus preserve an independent judicial department.' " People v. Cox, 82 Ill. 2d 268,
275 (1980), quoting Agran v. Checker Taxi Co., 412 Ill. 145, 149 (1952).
Legislative enactments enjoy a strong presumption of constitutionality, and
the burden rests upon the challenger to demonstrate the invalidity of a particular
statute. S.G., 175 Ill. 2d at 486. If legislation conflicts with a rule of the judiciary,
courts will seek to reconcile the legislation with the judicial rule. Williams, 124 Ill. 2d at 306. However, where this is not reasonably possible, this court has not
hesitated to strike down legislative enactments governing judicial procedure. For
instance, in People v. Joseph, 113 Ill. 2d 36 (1986), this court invalidated a
statutory provision requiring that post-conviction proceedings be conducted by a
judge who was not involved in the original trial proceedings. This court concluded
that the provision was inconsistent with Supreme Court Rule 21(b), which
provided the chief judge of each circuit may enter general orders providing for the
assignment of judges. People v. Cox, 82 Ill. 2d 268 (1980), dealt with the validity
of a statutory provision which created a rebuttable presumption that sentences
imposed for criminal convictions were proper, but authorized reviewing courts to
modify the sentence and enter any sentence the trial judge could have entered.
This court struck down this statute on the basis that it was in direct conflict with
cases that had interpreted an applicable supreme court rule as providing for review
of sentencing decisions and reduction of sentences under an abuse of discretion
standard. In People v. Jackson, 69 Ill. 2d 252 (1977), this court invalidated a 1975
amendment to the Code of Criminal Procedure of 1963 that gave each opposing
counsel the right to conduct his own voir dire of prospective jurors. This provision
was held to be in conflict with Supreme Court Rule 234, which directed the court
to conduct voir dire with questions deemed appropriate and such additional
questions or direct inquiry by the parties as the court deems proper.
The statutory provision in the case at bar represents a similar encroachment
on this court's paramount authority to regulate judicial procedure by court rule.
Supreme Court Rule 201 provides, in pertinent part:
"Rule 201. General Discovery Provisions
(a) Discovery Methods. Information is obtainable as
provided in these rules through any of the following discovery
methods: depositions upon oral examination or written questions,
written interrogatories to parties, discovery of documents, objects
or tangible things, inspection of real estate, requests to admit and
physical and mental examination of persons. Duplication of
discovery methods to obtain the same information should be
avoided.
(b) Scope of Discovery.
(1) Full Disclosure Required. Except as provided in
these rules, a party may obtain by discovery full disclosure
regarding any matter relevant to the subject matter involved
in the pending action, whether it relates to the claim or
defense of the party seeking disclosure or of any other party
***. ***
(2) Privilege and Work Product. All matters that are
privileged against disclosure on the trial *** are privileged
against disclosure through any discovery procedure. ***
***
(c) Prevention of Abuse.
(1) Protective Orders. The court may at any time on
its own initiative, or on motion of any party or witness,
make a protective order as justice requires, denying,
limiting, conditioning, or regulating discovery to prevent
unreasonable annoyance, expense, embarrassment,
disadvantage, or oppression.
(2) Supervision of Discovery. Upon the motion of
any party or witness, on notice to all parties, or on its own
initiative without notice, the court may supervise all or any
part of any discovery procedure." (Emphasis added.) 166 Ill.
2d R. 201.
Rule 201 and related rules governing specific discovery methods form a
comprehensive scheme for fair and efficient discovery with judicial oversight to
protect litigants from harassment. The consent procedure under section 2--1003(a)
is inconsistent with this scheme and substantially undermines it. First of all, the
consent procedure set forth in section 2--1003(a) is simply unauthorized by Rule
201(a), which specifies that information is obtainable "as provided in these rules"
and enumerates the authorized methods of discovery. More importantly, section
2--1003(a) circumvents the relevance requirement set forth in Rule 201(b)(1). To
be certain, the scope of information considered "relevant" under this court's
discovery rules is expansive, including not only evidence that would itself be
admissible at trial, but also information leading to the discovery of admissible
evidence. See Monier v. Chamberlain, 31 Ill. 2d 400, 403 (1964); 166 Ill. 2d R.
201(b), Committee Comments. The concept of relevance facilitates trial
preparation while safeguarding against improper and abusive discovery. In
addition, the relevance requirement has a constitutional dimension which is
discussed later.
Unlike our rules, however, section 2--1003(a) places no limitation
whatsoever on the scope of medical information subject to disclosure. To the
contrary, the mandated disclosure is described in the broadest possible terms. The
plaintiff must consent to the disclosure of medical information by "each person
or entity who has provided health care at any time," and must authorize them to
furnish "a complete copy of the chart or record of health care in the possession
of the provider." (Emphasis added.) 735 ILCS 5/2--1003(a) (West 1996). The
plaintiff must also authorize ex parte communications with his or her health care
providers concerning medical history and the health care provider's observations
related to "the patient's state of health, prognosis, etiology, or cause of the
patient's state of health at any time." (Emphasis added.) 735 ILCS 5/2--1003(a)(4)
(West 1996). There is no language in this provision in any manner restricting the
consent requirement to the injury which is the subject of the lawsuit or to related
medical conditions. Under section 2--1003(a), as a condition of proceeding with
his or her lawsuit, an injured party must consent to the disclosure of medical
information wholly unrelated the injury for which recovery is sought. Indeed,
under the unqualified language of section 2--1003(a), the injured party may have
to consent to the release of complete medical records held by health care providers
who have never treated the injured party for any condition even remotely related
to the subject matter of the lawsuit. The consent procedure set forth in section 2--
1003(a) goes well beyond the legitimate objectives of discovery as reflected in this
court's rules. Instead, section 2--1003(a) seems to be designed to discourage tort
victims from pursuing valid claims by subjecting them to the threat of harassment
and embarrassment through unreasonable and oppressive disclosure requirements.
Defendants and the Attorney General have attempted to justify section 2--
1003(a) on the basis that the physician-patient privilege did not exist at common
law (see Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850, 852-53
(1982)) but is instead a creature of statute. Thus, defendants and the Attorney
General contend that the General Assembly is empowered to redefine the scope
of the privilege. But section 2--1003(a) goes beyond merely delineating the scope
of the physician-patient privilege: rather it essentially provides a mechanism for
discovery of medical information that, by failing to meet the requirement of
relevance, would not be discoverable regardless of the privilege. Stated differently,
defendants and the Attorney General ignore the fact that the relevance requirement
is an independent constraint on discovery: information does not become relevant--
and thus subject to discovery--simply because it is not privileged.
Defendants and the Attorney General also insist that section 2--1003(a)
affords the trial court discretion to limit disclosure, thereby safeguarding against
the improper and abusive use of the consent procedure. They submit that the
existence of such discretion is implicit in certain language in the statute and is
supported by the legislative history of the provision. Plaintiffs respond that section
2--1003(a) provides for no such judicial oversight. We agree with plaintiffs.
The question presented is one of statutory construction, and familiar
principles apply. The cardinal rule of statutory construction, to which all other
canons and rules are subordinate, is to ascertain and give effect to the true intent
and meaning of the legislature. Solich v. George & Anna Portes Cancer
Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994). In doing so the
court should look first to the statutory language, which is the best indication of the
legislature's intent. Solich, 158 Ill. 2d at 81. Where the meaning of an enactment
is unclear from the statutory language itself, the court may look beyond the
language employed and consider the purpose behind the law and the evils the law
was designed to remedy. Solich, 158 Ill. 2d at 81. Where statutory language is
ambiguous, it is appropriate to examine the legislative history. People v. Hickman,
163 Ill. 2d 250, 261 (1994). However, when the language is clear, it will be given
effect without resort to other aids for construction. Hickman, 163 Ill. 2d at 261;
Solich, 158 Ill. 2d at 81.
Here, the language of the statute at issue is clear and unequivocal. In
unqualified and unconditional terms, the statute directs personal injury plaintiffs
to deliver signed consents to the release of medical information. There is no
reference whatsoever to any form of judicial oversight or any discretionary power
to safeguard against abusive use of the consent procedure. As written, section 2--
1003(a) envisions disclosure of medical information without limitation, and
without regard to the relevance of the information or the oppressive nature of
disclosure. There is no rule of construction which authorizes a court to declare that
the legislature did not mean what the plain language of the statute imports, and
a court is not at liberty to depart from the plain language of a statute by reading
into it exceptions, limitations or conditions that the legislature did not express.
Solich, 158 Ill. 2d at 83.
In support of their construction, defendants and the Attorney General note
language in section 2--1003(a) indicating that "[t]he provisions of this subsection
(a) do not restrict the right of any party to discovery pursuant to rule." Defendants
and the Attorney General apparently believe the "right to discovery pursuant to
rule" embraces the right to apply for a protective order against requests for
consents under section 2--1003(a). We disagree. Under our rules, discovery
methods consist of depositions, written interrogatories to the parties, discovery of
documents, objects or tangible things, inspection of real estate, requests to admit,
and physical and mental examination of persons. 166 Ill. 2d R. 201. The issuance
of a protective order is not a type of discovery, rather it is a means of limiting
discovery. The language in section 2--1003(a) preserving the right to discovery
pursuant to rule only means that the legislature did not intend for the consent
procedure to be exclusive, and that litigants may avail themselves of the methods
of discovery provided for by our rules. In no way does this language place any
limits on the consent procedure under section 2--1003(a).
Defendants and the Attorney General also rely on the portion of section 2--
1003(a) stating that "[a] request for a Consent *** does not preclude such
subsequent requests as may reasonably be made seeking to expand the scope of
an earlier Consent which was limited to less than all the authority permitted by
subdivisions (1) through (4) of this subsection (a) ***." (Emphasis added.) 735
ILCS 5/2--1003(a) (West 1994). Defendants and the Attorney General maintain
that because the statute provides for expansion of a consent previously limited by
a court, it necessarily recognizes the court's discretion to limit the scope of
consents. The flaw in this argument is that this portion of the statute makes no
reference to the consent being limited "by a court." Rather the reference to a
limited consent simply means one which is limited by its own terms or is limited
on its face. This provision contemplates the situation where, for whatever reason,
a defendant initially requests consent to disclosure of less than all the types of
medical information authorized under the statute, and later seeks to expand the
request. Defendants' and the Attorney General's interpretation that "limited"
means limited by the court is not a reasonable or plausible alternative. Any
authority on the part of the trial court to limit the scope of a consent would be
meaningless if the requesting party could simply submit additional consents
seeking the same type of disclosure.
Defendants and the Attorney General also rely on legislative history to
support their view that section 2--1003(a) provides for judicial oversight of the
release of medical information. During the proceedings in the House of
Representatives, the sponsors of this measure indicated that under the consent
procedure, the plaintiff had 28 days to obtain a court order limiting the extent of
disclosure. See 89th Ill. Gen. Assem., House Proceedings, February 16, 1995, at
142 (statements of Representative Cross); 89th Ill. Gen. Assem., House
Proceedings, February 16, 1995, at 164-65 (statements of Representative Ryder).
However, because the language of the statute is plain and unambiguous, we have
no occasion to consider its legislative history. Envirite Corp. v. Illinois
Environmental Protection Agency, 158 Ill. 2d 210, 216-17 (1994). We further note
that while courts give some consideration to statements by a sponsor of a bill,
such statements are not controlling. People v. Hickman, 163 Ill. 2d 250, 262
(1994). The statutory language at issue here is clear. The plaintiff's obligation to
consent to the disclosure of medical information is absolute and unqualified;
nowhere is it provided that the trial court may regulate the scope of disclosure.
Defendants and the Attorney General also direct our attention to a number
of decisions where this court has upheld procedural statutes against separation of
powers challenges. See, e.g., DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57
(1992); Strukoff v. Strukoff, 76 Ill. 2d 53 (1979); People v. Walker, 119 Ill. 2d 465
(1988); Niven v. Siqueira, 109 Ill. 2d 357 (1985). The cases cited are inapposite,
however, as they do not involve any claimed conflict between a statute and a
supreme court rule. The trial court correctly ruled that section 2--1003(a)
represents an impermissible encroachment upon the authority of the judicial
branch.
II
The trial court also concluded that section 2--1003(a) violates the right to
privacy expressly set forth in our state constitution. We agree. Our constitution
provides that "[t]he people shall have the right to be secure in their persons,
houses, papers and other possessions against unreasonable searches, seizures,
invasions of privacy or interceptions of communications by eavesdropping devices
or other means." (Emphasis added.) Ill. Const. 1970, art. I, sec. 6. This court has
observed that the Illinois Constitution goes beyond federal constitutional
guarantees by expressly recognizing a zone of personal privacy, and that the
protection of that privacy is stated broadly and without restrictions. In re May
1991 Will County Grand Jury, 152 Ill. 2d 381, 391 (1992). The confidentiality of
personal medical information is, without question, at the core of what society
regards as a fundamental component of individual privacy. Physicians are privy
to the most intimate details of their patients' lives, touching on diverse subjects
like mental health, sexual health and reproductive choice. Moreover, some medical
conditions are poorly understood by the public, and their disclosure may cause
those afflicted to be unfairly stigmatized. Respect for the privacy of medical
information is a central feature of the physician-patient relationship. Under the
Hippocratic Oath, and modern principles of medical ethics derived from it,
physicians are ethically bound to maintain patient confidences. See Petrillo v.
Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 589 (1986).
In addition, this court has recognized that "[a] person has a reasonable
expectation that he will not be forced to submit to a close scrutiny of his personal
characteristics, unless for a valid reason. *** [T]he individual's privacy interest
in his physical person *** must be protected." Will County Grand Jury, 152 Ill. 2d at 391-92. We believe that this privacy interest pertaining to individual physical
characteristics necessarily encompasses personal medical information.
The text of our constitution does not accord absolute protection against
invasions of privacy. Rather, it is unreasonable invasions of privacy that are
forbidden. In the context of civil discovery, reasonableness is a function of
relevance. In Firebaugh v. Traff, 353 Ill. 82 (1933), a foreclosure action was
brought by the trustee of a deed of trust securing a bond issue. The trustee was
held in contempt for refusing to comply with a subpoena requiring disclosure of
the names and addresses of the bondholders. The trustee argued that because the
names of the bondholders were not pertinent or material to the case, the order that
the names be produced violated the constitutional prohibition against unreasonable
searches and seizures. This court agreed:
"While courts have inherent power to order the production of books
and papers, yet it is required that such order in all cases shall be a
reasonable one. The constitutional protection is against
unreasonable searches and seizures. [Citation.] It has been
uniformly held that before an order can be entered for the
production of books or writings by one of the parties there must be
good and sufficient cause shown that the evidence sought to be
obtained is pertinent to the issues in the case. *** Such an order
cannot be used to procure a general investigation of a transaction
not material to the issue." Firebaugh, 353 Ill. at 84-85.
While Firebaugh involved the prohibition against unreasonable searches
and seizures, the same analysis applies where the privacy interest in medical
information is involved. It is reasonable to require full disclosure of medical
information that is relevant to the issues in the lawsuit. But as previously noted,
section 2--1003(a) requires a blanket consent to disclosure of all medical
information without regard to the issues being litigated. The scope of the required
disclosure is unreasonable and unconstitutional.
Defendants and the Attorney General insist that section 2--1003(a) is
constitutional because it contains adequate safeguards protecting the plaintiff's
right to privacy. First, they contend that the trial court may limit the scope of
disclosure under section 2--1003(a). This argument is without merit, as we have
already concluded that section 2--1003(a) makes no provision for any judicial
control of the scope of disclosure. Defendants and the Attorney General also point
out that section 2--1003(a) provides that "[a]ll documents and information obtained
pursuant to a Consent shall be considered confidential" and may only be disclosed
to "the parties to the action, their attorneys, their insurers' representatives, and
witnesses and consultants whose testimony concerns medical treatment, prognosis,
or rehabilitation, including expert witnesses." However, even when limited to the
persons listed, disclosure of highly personal medical information having no
bearing on the issues in the lawsuit is a substantial and unjustified invasion of
privacy.
Defendants also contend that section 2--1003(a) does not run afoul of the
prohibition of unreasonable invasions of privacy because, according to defendants,
that prohibition "does not apply to actions between private parties." However,
section 2--1003(a) provides for state action as the means to compel the disclosure
of constitutionally protected medical information: where a party fails to tender a
consent the trial court may either dismiss the lawsuit or enter an order authorizing
disclosure of the requested medical information. Defendants' argument is without
merit.
Accordingly, the trial court correctly ruled that section 2--1003(a) violates
the constitutional prohibition of unreasonable invasions of privacy.
III
In addition to holding that section 2--1003(a) violated the doctrine of
separation of powers and the prohibition against unreasonable invasions of
privacy, the trial court also ruled that the statute was unconstitutional because "the
Authorization of Release of Medical Information is overly coercive and prevents
a Plaintiff from making a free and consensual decision." While the trial court cited
specific provision of the constitution as the basis for this ruling, on appeal
plaintiffs rely on section 1 of article I of the Illinois Constitution of 1970, which
states:
"All men are by nature free and independent and have
certain inherent and inalienable rights among which are life, liberty
and the pursuit of happiness. To secure these rights and the
protection of property, governments are instituted among men,
deriving their just powers from the consent of the governed." Ill.
Const. 1970, art. I, sec. 1.
With reference to an almost identical provision in the Illinois Constitution
of 1870 (see Ill. Const. 1870, art. II, sec. 1) it has been observed that this section
"is not generally considered, of itself, an operative constitutional limitation upon
the exercise of governmental powers. Rather it is considered supplemental to and
implicitly within [the due process clause]. There is thus little purpose in treating
this section as an independent source of constitutional law." G. Braden & R.
Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 8
(1969). Accordingly, we find no adequately articulated basis for the trial court's
ruling that section 2--1003(a) is unconstitutional because it is "overly coercive."
However, because we agree with the trial court's other constitutional rulings, we
affirm the order declaring section 2--1003(a) unconstitutional.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
JUSTICE HEIPLE took no part in the consideration or decision of this
case.
[fn1] Amicus briefs asserting that section 2--1003(a) is constitutional, and
advocating reversal of the trial court's order, have been filed by the Illinois
Hospital & Healthsystems Association, the Metropolitan Chicago Healthcare
Council, the Illinois Civil Justice League, the Illinois Manufacturers' Association,
the Illinois State Medical Society, and the Illinois Association of Defense Trial
Counsel.
[fn2] The Petrillo court used the term "ex parte" to describe "any discussion that
defense counsel has with a plaintiff's treating physician which is not pursuant to
the authorized methods of discovery outlined by Supreme Court Rule 201."
Petrillo, 148 Ill. App. 3d at 584 n.1. The term will be used in the same fashion
in this opinion.
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