D.C. v. S.A.
Annotate this Case
D.C. v. S.A., No. 82071 (10/17/97)
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. 82071--Agenda 24--March 1997.
D.C., Appellee, v. S.A. et al., Appellants.
Opinion filed October 17, 1997.
CHIEF JUSTICE FREEMAN delivered the opinion of the
court:
The issue presented in this appeal is twofold: (1)
whether, pursuant to section 10(a)(1) of the Mental
Health and Developmental Disabilities Confidentiality Act
(Act) (740 ILCS 110/10 et seq. (West 1992)), plaintiff,
D.C., introduced his mental condition as an element of
his negligence claim such that certain documents and
items of information within his post-accident psychiatric
treatment records were subject to disclosure; and (2)
whether the trial court correctly determined that the
records were to be disclosed.
Section 10(a)(1) of the Act provides, in part:
"sec. 10(a). Except as provided herein,
in any civil, criminal, administrative, or
legislative proceeding, or in any proceeding
preliminary thereto, a recipient, and a
therapist on behalf and in the interest of a
recipient, has the privilege to refuse to
disclose and to prevent the disclosure of the
recipient's record or communications.
(1) Records and communications may
be disclosed in a civil, criminal or
administrative proceeding in which the
recipient introduces his mental condition
or any aspect of his services received
for such condition as an element of his
claim or defense, if and only to the
extent the court in which the proceedings
have been brought, *** finds, after in
camera examination of testimony or other
evidence, that it 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) (West 1994).
BACKGROUND
On June 6, 1992, a traffic accident occurred on
Illinois Route 53 in Bolingbrook, Illinois, involving
plaintiff, D.C., a pedestrian, and an automobile driven
by defendant S.A. Plaintiff subsequently filed a
negligence action for personal injuries against
defendants, S.A. and J.A., Jr., in the circuit court of
Will County.
Plaintiff alleged in his complaint that at the time
of the accident, he was a pedestrian crossing Route 53,
that defendants were careless and negligent in several
respects, and that a car driven by defendant S.A. struck
him on that date causing injury. Plaintiff further
alleged in his complaint that at all times therein
mentioned, he was "in the exercise of ordinary care and
caution for his safety, and for the safety of all other
persons and vehicles lawfully upon the highways."
Plaintiff alleged that as a "direct and proximate result"
of defendant's negligence, plaintiff sustained "severe
and permanent injury," suffered pain, incurred medical
expense, and lost and would lose earnings and profits.
The complaint did not seek any damages due to mental
health injury or any related expenses.
Defendants answered the complaint by denying all of
the allegations of negligence made against them. Also,
defendants asserted an affirmative defense alleging that
plaintiff was negligent in several respects, including
failing to obey a traffic control device and suddenly
leaving the curb area and entering the roadway in the
path of defendant's vehicle and that such negligence of
plaintiff was "the" proximate cause of plaintiff's
damages. Defendants prayed that plaintiff be found
contributorily negligent in causing his alleged damages.
Defendants also filed a counterclaim alleging that
plaintiff was negligent and that such negligence was the
proximate cause of damages to defendants' vehicle.
In reply to defendants' affirmative defense,
plaintiff denied all allegations and alleged that he was
in the exercise of due care for himself and others. In
answer to defendants' counterclaim, plaintiff denied that
he was negligent or that such alleged negligence was a
proximate cause of defendants' damages. Plaintiff
asserted that he was in the exercise of due care for his
safety and others at the time of the accident, but that
defendants were not.
Pursuant to discovery rules, defendants issued
subpoenas for deposition directing, inter alia, Edwards
Hospital, the hospital where plaintiff was treated
immediately following the accident, and Dr. Drew M.
Georgeson, his treating physician, to produce plaintiff's
medical, psychiatric and/or psychological records for
copying. Plaintiff responded by filing a cross-motion for
a protective order which the trial court denied, ordering
production of the requested records, other than
psychiatric and psychological records, for copying.
Plaintiff's medical records revealed that, upon his
discharge from Edwards Hospital, where he had been
treated for three days immediately following the
accident, plaintiff was referred by Dr. Georgeson to
Linden Oaks Hospital, the psychiatric unit of Edwards
Hospital, for a psychiatric evaluation. Dr. Georgeson
partially summarized plaintiff's treatment in a letter to
plaintiff's attorney which expressed that plaintiff was
being referred because of an indication by plaintiff that
he might have been attempting suicide at the time of the
accident. Defendants consequently filed a motion to
compel the production of all of plaintiff's psychiatric
and psychological records, including those from Edwards
and Linden Oaks Hospitals. Asserting section 10(a)(1) of
the Mental Health Act as the basis, plaintiff objected.
In March 1995, the trial court ordered Edwards
Hospital to produce all of plaintiff's records, including
all psychiatric and psychological records "(including any
and all records from Linden Oaks Hospital)" for an in
camera inspection. By order dated March 28, 1995, the
court received the Edwards Hospital records and impounded
them. The court also ordered Linden Oaks Hospital to
produce any and all records regarding plaintiff for an in
camera inspection. The court continued further hearing on
the matter to May 1995.
On May 9, 1995, following an in camera inspection of
plaintiff's records from Edwards Hospital, the trial
court ordered that those records be disclosed to
defendants, with the exception of a purported petition
for involuntary admission, which is not at issue here. In
the order, the trial court again ordered that all of
plaintiff's records from Linden Oaks Hospital be produced
for an in camera inspection. The trial court subsequently
continued the matter.
On or about May 16, 1995, plaintiff's Linden Oaks
Hospital psychiatric records were received by the trial
court, which then conducted an in camera inspection of
them. At a hearing of the matter held on May 23, 1995,
the trial court found that, with respect to certain
documents and information from the two hospitals'
records, plaintiff had introduced his mental condition in
establishing that he was in the exercise of due care for
his own safety, and that such element of his mental
condition had been introduced by the filing of the
lawsuit. With respect to these materials and the
remainder of plaintiff's psychiatric records, the trial
court then made findings pursuant to the several factors
enumerated in section 10(a)(1).
The trial court found that the last three pages of
records produced from Edwards Hospital (a certificate by
an attending psychiatrist, a document signed by "Linda
Campbell," and an inventory of plaintiff's personal
belongings, all dated June 8, 1992) were relevant,
probative and, while prejudicial, not unduly prejudicial,
and also admissible. After noting that defendants'
counsel had attempted to obtain the information from
other sources, but had been unable to do so, the trial
court found that other satisfactory evidence was
demonstrably unsatisfactory at that time. Lastly, the
trial court found that disclosure was more important to
the interests of substantial justice than protection of
the therapist-recipient relationship.
Concerning plaintiff's Linden Oaks psychiatric
records, the trial court found that, with the exception
of three specific items of information, the entirety of
the records was not relevant. The trial court repeated
its previous findings under section 10(a)(1) with respect
to the three items: a paragraph entitled "reason for
admission," which appeared on a discharge summary, a
paragraph entitled "history of present illness," which
appeared in a report from Dr. Kraus, and a one sentence
statement by a psychologist concerning "the presenting
problem," which appeared in a "psychological assessment"
document. In doing so, the trial court specified that
other paragraphs within documents in which these three
items appeared were to be redacted because such
paragraphs concerned information which was irrelevant,
inadmissible, or unduly prejudicial.
In total, the trial court ordered that the last
three pages of plaintiff's Edwards Hospital records and
the three specified items of information from Linden Oaks
Hospital were to be disclosed to defendants.
The trial court temporarily stayed the order of
disclosure in order to allow plaintiff time to file an
interlocutory appeal. The trial court thereupon found
that the disclosure order involved a question of law as
to which there was a substantial difference of opinion,
and that an immediate appeal might materially advance the
ultimate determination of the litigation. See 155 Ill. 2d
R. 308. Accordingly, the court certified the following
question:
"Whether this court correctly held that the
plaintiff has introduced his mental condition
in establishing that he was in the exercise of
due care for his own safety and that element
of his mental condition has been introduced by
the filing of this lawsuit, and therefore, the
specified records are discoverable and ordered
turned over to defendants?"
The appellate court framed the question for review as
follows:
"[W]hether a plaintiff who files a
negligence lawsuit introduces his mental
condition as an element of his claim and
thereby waives his privilege to refuse
disclosure of mental health records under the
Mental Health and Developmental Disabilities
Confidentiality Act [citation]." 283 Ill. App.
3d 693, 694.
The appellate court answered this question by holding
that a plaintiff does not waive the privilege against
disclosure of mental health records under the Act unless
he specifically or affirmatively raises the condition as
an element of his claim. The appellate court further
reasoned that "[b]ecause the filing of a negligence
action does not require a plaintiff to specifically or
affirmatively plead his mental condition," a plaintiff
does not, thereby, necessarily introduce his mental
condition as an element of his claim. 283 Ill. App. 3d at
699. The appellate court concluded that the only manner
by which the plaintiff's mental condition became at issue
in this case was through defendants' attempt to establish
comparative negligence, but that, under section 10(a)(1),
only a recipient might waive the subject privilege. While
acknowledging that the result "may be perceived in some
quarters as an affront to justice and common sense," the
appellate court nevertheless expressed that its holding
was compelled by the plain language of section 10(a)(1)
of the Mental Health Act. 283 Ill. App. 3d at 699. As
stated previously, the appellate court reversed the trial
court's judgment and remanded the matter to the trial
court. 283 Ill. App. 3d 693.
The dissent argued that, given the facts of this
case, the therapist-recipient privilege must necessarily
yield in favor of constitutional due process and
fundamental fairness concerns inasmuch as the privilege
is not absolute. In the dissent's view, the privilege,
designed as a shield to protect the therapist-recipient
relationship, was being unfairly utilized by plaintiff in
this case as a sword to the detriment of defendants. 283
Ill. App. 3d at 700 (Lytton, J., dissenting).
The cause is now before this court based on the
grant of defendants' petition for leave to appeal (155
Ill. 2d R. 315(a)). After careful consideration, we
reverse the appellate court's judgment and remand the
cause to the trial court for further proceedings.
We note parenthetically that the record in this case
was impounded, and that defendants have not yet seen or
examined the documents or other items which were ordered
to be disclosed.
STANDARD OF REVIEW
Citing Computer Teaching Corp. v. Courseware
Applications, Inc., 199 Ill. App. 3d 154 (1990),
defendants contend that this matter is properly
reviewable under an abuse of discretion standard.
Generally speaking, a trial court is afforded great
latitude in rulings on discovery matters, and a court of
review will not disturb such rulings absent a manifest
abuse of discretion. See Maxwell v. Hobart Corp., 216
Ill. App. 3d 108, 110 (1991). Specifically, however, the
applicability of a statutory discovery privilege is a
matter of law for the trial court to determine and,
within that legal determination, factual questions may
sometimes arise. See Niven v. Siqueira, 109 Ill. 2d 357,
368 (1985). It follows then that the applicability of a
statutory exception to such a privilege is also a matter
of law for the trial court to determine.
In determining whether section 10(a)(1) applies to
a given case, a trial court must first determine as a
matter of law whether a recipient might have introduced
his mental condition as an element of his claim or
defense so as to waive the therapist-recipient privilege
recognized under the Act. 740 ILCS 110/10(a)(1) (West
1994). Disclosure may be had provided, and only to the
extent, the trial court secondarily finds that the
information sought to be disclosed is relevant,
probative, not unduly prejudicial, otherwise clearly
admissible, that other satisfactory evidence is
demonstrably unsatisfactory as evidence, and that
disclosure is more important to the interests of
substantial justice than protection from injury to the
therapist-recipient relationship. 740 ILCS 110/10(a)(1)
(West 1994); see Goldberg v. Davis, 151 Ill. 2d 267
(1992). This aspect of the inquiry expressly includes a
balancing of competing important interests and a
consideration of some factual matters, the very sort of
determination traditionally residing within the
discretion of a trial court.
In the present case, we review the propriety of the
appellate court's answer to the certified question before
it. That question essentially asked whether the trial
court's holding was legally correct concerning the
threshold applicability of section 10(a)(1) to the case,
and the secondary matter of disclosure pursuant to the
provision. The trial court found that its disclosure
order involved a question of law as to which there was a
substantial difference of opinion and requested guidance.
See Faier v. Ambrose & Cushing, P.C., 154 Ill. 2d 384
(1993); Kerker v. Elbert, 261 Ill. App. 3d 924, 925
(1994). Given the posture of the case, yet recognizing
the mixed nature of the issues presented, we nevertheless
determine that this matter is one subject to de novo
review. Cf. In re Lawrence M., 172 Ill. 2d 523, 526
(1996).
ANALYSIS
Before proceeding with our analysis, we first note
as a point of reference that, contrary to the appellate
court's statement, the certified question before it was
not whether a plaintiff's filing of a negligence lawsuit
introduces his mental condition and thereby waives his
section 10(a) privilege. Rather, the certified question
asked whether the plaintiff introduced his mental
condition in alleging that he was in the exercise of due
care for his own safety and by filing such lawsuit. See
Thompson v. Walters, 207 Ill. App. 3d 531 (1991) (attempt
to rephrase certified question is procedurally improper);
Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App.
3d 154 (1986) (appellate court could only consider
question on interlocutory appeal which was certified by
trial court).
Supreme Court Rule 201(b)(1) authorizes broad
discovery "regarding any matter relevant to the subject
matter involved in the pending action." 134 Ill. 2d R.
201(b)(1). Traditionally, the trial court is accorded
great latitude in determining the scope of discovery, as
discovery presupposes a range of relevance and
materiality which includes not only what is admissible at
trial, but also that which leads to what is admissible at
trial. See Computer Teaching Corp., 199 Ill. App. 3d at
157.
The objectives of pretrial discovery are to enhance
the truth-seeking process, to enable attorneys to better
prepare for trial, to eliminate surprise and to promote
an expeditious and final determination of controversies
in accordance with the substantive rights of the parties.
Mistler v. Mancini, 111 Ill. App. 3d 228, 231-32 (1982).
Privileges which protect certain matters from disclosure
are not designed to promote the truth-seeking process,
but rather to protect some outside interest other than
the ascertainment of truth at trial. 1 J. Strong,
McCormick on Evidence sec. 72, at 269 (4th ed. 1992).
Thus, privileges are an exception to the general rule
that the public has a right to every person's evidence.
Privileges are not to be lightly created or expansively
construed, for they are in derogation of the search for
the truth. See Illinois Educational Labor Relations Board
v. Homer Community Consolidated School District No. 208,
132 Ill. 2d 29, 34 (1989); see also People ex rel. Noren
v. Dempsey, 10 Ill. 2d 288 (1957).
The common law psychiatrist-patient privilege, a
privilege somewhat similar to our statutory therapist-
recipient privilege, has been described as serving both
important private interests in confidential and secure
conversation, and the important public interests in
facilitating the provision of appropriate mental health
treatment of the citizenry. See Jaffee v. Redmond, 518
U.S. ___, ___, 135 L. Ed. 2d 337, 345, 116 S. Ct. 1923,
1928-29 (1996); see also Novak v. Rathnam, 106 Ill. 2d 478 (1985).
Cognizant of these general concerns, we address the
specific arguments in the present case. We first note
that defendants do not claim that plaintiff introduced
his mental condition as an element of his damages, as is,
perhaps, the more typical case. Rather, defendants claim
that plaintiff introduced his mental condition as an
element of the liability aspect of his claim. Defendants
contend that the trial court correctly held that
plaintiff had done so. Defendants argue that the
appellate court misapprehended this point when it focused
solely on the obligation of defendants to plead a
plaintiff's comparative negligence, and the legal effect
of such pleading by defendants in this case. Citing
Leonardi v. Loyola University, 168 Ill. 2d 83, 93 (1995),
defendants maintain that proximate cause is recognized as
an essential element of plaintiff's case and sole
proximate cause is not an affirmative defense, but rather
an inherent element of a plaintiff's negligence case
which the plaintiff has the burden to prove and overcome.
Defendants argue that the information which they seek to
be disclosed contradicts the allegation in plaintiff's
prima facie case that defendants' negligence proximately
caused his injuries. They apparently argue that plaintiff
has thus introduced, by negative implication, his mental
condition as a causative element. Defendants cite to
Maxwell v. Hobart Corp., 216 Ill. App. 3d 108 (1991), as
an example of correct reasoning regarding waiver of the
therapist-recipient privilege under section 10(a)(1) and
assert that the appellate court's ruling below conflicts
with Maxwell. On this point, defendants charge that the
authorities relied on by the appellate court, Tylitzki v.
Triple X Service, Inc., 126 Ill. App. 2d 144 (1970), and
Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405
(1966), are distinguishable.
Prior to the adoption of the comparative negligence
doctrine in Illinois (see Alvis v. Ribar, 85 Ill. 2d 1
(1981)), a plaintiff was required to prove his own
exercise of due care as an essential element of his
negligence action. The absence of such a showing by
plaintiff, or sufficient affirmative evidence of
contributory negligence, was a complete bar to his
recovery. Long v. City of New Boston, 91 Ill. 2d 456, 462
(1982) (citing cases). Illinois courts consistently held
that the plaintiff had the burden of pleading freedom
from contributory negligence, as well as the burden of
proof on the issue. A complaint that lacked a sufficient
allegation of the plaintiff's due care or disclosed on
its face contributory negligence failed to state a cause
of action and was subject to a motion to dismiss. Long,
91 Ill. 2d at 462-63.
With the advent of comparative negligence, both
logic and fairness dictated that the defendant, who stood
to benefit from a showing that the plaintiff was
negligent, was the party who should have the burden of
proof on the issue. See Casey v. Baseden, 111 Ill. 2d 341, 346-47 (1986). Indeed, a plaintiff's negligence was
subsequently codified as an affirmative defense with the
requirement that the defendant plead the facts
constituting the defense. 735 ILCS 5/2--613(d) (West
1994).
Adoption of the doctrine of comparative negligence
did not, however, result in the elimination of proximate
cause as an element in a negligence action (see Owens v.
Stokoe, 115 Ill. 2d 177, 183 (1986); see also Leonardi,
168 Ill. 2d at 93), and there can be more than one
proximate cause contributing to any one injury (Johanek
v. Ringsby Truck Lines, Inc., 157 Ill. App. 3d 140
(1987)).
In the present case, plaintiff pled in the complaint
that he was in the exercise of ordinary care for his
safety at the time of the accident, that various acts of
defendants constituted negligence, and that such
negligence on defendants' part was a proximate cause of
his injuries.
Although not required to do so, plaintiff also pled
his own freedom from negligence. We agree with the
appellate court to the extent that such allegation, in
itself, does not serve to introduce mental condition as
an element of his claim. Plaintiff may amend his
complaint at any time to drop this allegation, and he
carries no burden of proof on this issue. It appears that
plaintiff's allegation of his own due care is simply
"boilerplate" language in the complaint and thus is
insufficient to constitute a substantive assertion of any
element of his claim.
We further agree with the appellate court that it
was the defendants who actually raised the issue of
plaintiff's negligence in this case. Defendants
accomplished this by raising the affirmative defense of
plaintiff's comparative negligence. Section 10(a)(1)
requires, however, that the "recipient introduce[ ] his
mental condition *** as an element of his claim or
defense." 740 ILCS 110/10(a)(1) (West 1994). Cf.
Goldberg, 151 Ill. 2d 267 (recipient introduced her
mental condition as well as services as part of complaint
prosecuted by Illinois Department of Professional
Regulation).
Also, plaintiff's denial of any contributory
negligence in his reply to defendants' affirmative
defense does not by itself, or in combination with his
unnecessary allegation of due care in the complaint,
result in the introduction by plaintiff of his mental
condition into the claim.
Defendants argue, however, that plaintiff introduced
his mental condition by pleading that defendants'
negligence proximately caused his injuries. Defendants
apparently reason that by claiming that defendants'
negligence was a proximate cause of his injuries,
plaintiff has introduced his mental condition as a
causative factor to the extent that it contradicts this
assertion. Recognizing that they rely on a negative
implication of plaintiff's mental condition, defendants
turn to Leonardi to buttress their argument, claiming
that sole proximate cause is an element of the
plaintiff's case.
Yet, plaintiff did not allege and is not required to
prove that defendants' negligence was the sole proximate
cause of his injuries. Leonardi cannot be read as
requiring the plaintiff to plead sole proximate cause, or
that a plaintiff carries the burden to prove sole
proximate cause. Leonardi only held that defendants are
not required to plead the sole proximate cause of another
party as an affirmative defense in order to offer
evidence at trial that another's negligence was the sole
cause of an injury. Leonardi, 168 Ill. 2d at 93-94.
Defendants apparently recognize that plaintiff's
mental condition as a causative factor could not be said
to have been introduced into the claim by his assertion
that defendants' negligence was a proximate cause of
plaintiff's injuries. This is so because plaintiff's
mental condition as a causative factor could not be
implicated with respect to his assertion about
defendants' conduct, unless and to the extent that it
contradicted that assertion.
In Maxwell, the appellate court found that the
plaintiff's condition of sobriety had been introduced
into the claim as it was a central, rather than
peripheral, issue and such condition had "bear[ing] on"
proximate cause and plaintiff's comparative fault.
Maxwell, 216 Ill. App. 3d at 115. Relevancy and
centrality, however, are not decisive of whether a
recipient has introduced such conditions as an element of
his or her claim or defense under section 10(a)(1). Cf.
Tylitzki, 126 Ill. App. 2d at 149 (affirmative aspect
controlling where mental condition claimed to have been
introduced based on allegations of damages for pain and
suffering); Webb, 73 Ill. App. 2d 405 (mental condition
must be "specifically made" part of claim for damages as
opposed to general allegation of pain and suffering); but
see Roberts v. Norfolk & Western Ry. Co., 229 Ill. App.
3d 706, 720 (1992) (plaintiff introduced mental condition
as element of claim by claiming compensatory damages
where barred psychiatric deposition testimony related to
amount of damages). We find that under the terms of
section 10(a)(1) something more is required for the
introduction of a condition as an element of a claim even
concerning those pertaining to liability. Based on the
pleadings and even implications arising from them,
defendants have not demonstrated the requisite nexus for
us to conclude that plaintiff has thereby introduced his
mental condition.
We recognize that under Illinois negligence law
prior to the adoption of the doctrine of comparative
negligence, the plaintiff would have been considered to
have introduced his mental condition as an element of his
claim under the instant pleadings here. The legislature,
in enacting section 10(a)(1) subsequent to the doctrine's
adoption, however, must be presumed to have had knowledge
of that fact. We recognize also that in commonsense
terms, it could be argued that, by filing a negligence
action, a plaintiff puts at issue all matters that are
relevant to the assertion of that claim. Nevertheless, we
conclude that under the terms of section 10(a)(1), and
given the pleadings in this case as well as the subject
information, plaintiff did not introduce his mental
condition as an element of his claim.
Defendants contend that the appellate court's ruling
against disclosure of the information prevented them from
presenting evidence in their defense that had the
potential to absolve them from liability. According to
defendants, the ruling thus constituted a denial of their
federal and state constitutional due process rights (U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2) to
answer and defend against the lawsuit. See Prink v.
Rockefeller Center, Inc., 48 N.Y.2d 309, 398 N.E.2d 517,
422 N.Y.S.2d 911 (1979).
In order to sustain such argument, defendants must
necessarily possess either a vested right to an
unfettered defense or claim that certain property of
theirs was in fact taken without due process of law.
However, defendants possess no right to an unfettered
defense. Cf. People v. Love, 310 Ill. 558, 563 (1923)
("no one has any vested right in a rule of evidence
either in a criminal or civil case, and there is no
constitutional prohibition against the legislature
changing it so long as it leaves to a party either in a
criminal or civil case a fair opportunity to make his
defense and to submit all the facts to the jury"). And
the upholding of the privilege by the appellate court in
this case would not have the effect of depriving
defendants of their defense, though we agree that their
defense would be greatly hampered. Also, as of yet, no
money judgment has been entered against defendants as a
result of this action so they are not close to suffering
a deprivation of their property. Under these
circumstances, no violation rising to constitutional
dimensions is indicated. But see Prink, 48 N.Y.2d at 317,
398 N.E.2d at 522, 422 N.Y.S.2d at 916 (stating that in
wrongful death action, where decedent's death from a 36-
story building fall was questionable as suicide, to hold
physician-patient privilege not waived is to ignore
realities of factual situation and to come "perilously
close" to taking defendant's property without due process
of law).
While we do not agree that the instant case presents
a situation where due process rights are violated, we yet
believe that under the circumstances presented here,
fundamental fairness commands that the privilege yield.
Cf. Galante v. Steel City National Bank, 66 Ill. App. 3d
476, 482 (1978) ("[i]t would be unjust" to allow
plaintiffs to prosecute their action against defendants
and, at the same time, refuse to answer questions, under
a claim of the fifth amendment privilege, the answers to
which "may substantially aid defendants or even establish
a complete defense"); Adkins v. Chicago, Rock Island &
Pacific R.R. Co., 54 Ill. 2d 511 (1973) (declining
jurisdiction as a matter of fundamental fairness); Canton
v. Chorbajian, 88 Ill. App. 3d 1015, 1022 (1980)
(examining circumstances attendant upon entry of default
judgment in interests of fundamental fairness though
party lacked requisite due diligence in petitioning to
set aside). Moreover, as this court has recognized, the
therapist-recipient privilege, like other privileges, is
not absolute. See Goldberg, 151 Ill. 2d at 277 (pointing
out various provisions within Act which recognize
exceptions); see also In re Marriage of Decker, 153 Ill. 2d 298, 312-13 (1992) (attorney-client privilege
inapplicable where client seeks or obtains services of
attorney in furtherance of criminal or fraudulent
activities).
In this case, the information plaintiff seeks to
protect potentially contradicts his assertion that
defendants were negligent and caused the accident. The
information has the potential to completely absolve
defendants from any liability. Too, the information meets
the criteria for disclosure under section 10(a)(1).
Certainly, the information is relevant as it pertains to
plaintiff's conduct and actions at the time of the
accident. The information is probative as well because it
appears to provide a possible explanation of how the
accident occurred. Further, the information does not
appear to be unduly prejudicial, as it does not concern
plaintiff's psychiatric treatment or progress, but refers
only to his purported conduct at the time of the accident
and various assessments by plaintiff's treaters of those
purported events. Also, the record reflects, as the trial
court found, that defendants' counsel unsuccessfully
attempted to obtain other information regarding
plaintiff's referral to Linden Oaks Hospital from other
sources; and there is no argument that the information is
not otherwise clearly admissible. Most certainly too,
disclosure of this small amount of information, which
does not concern plaintiff's psychiatric diagnosis,
treatment, or progress, but which concerns plaintiff's
possible conduct and motivation specifically at the time
of the accident, is more important to the interests of
substantial justice in this case than protecting
plaintiff or the relationship he holds with his
therapist.
Notably, the trial court ordered redaction of
material it believed did not satisfy the requirements of
section 10(a)(1) that appeared in several documents which
included the specified items of information. Furthermore,
the trial court found that the majority of plaintiff's
Linden Oaks Hospital psychiatric records did not meet the
provision's requirements for disclosure. Given that the
information here may be entirely decisive of defendant's
liability, that it is relevant, probative, admissible,
not obtainable elsewhere, not unduly prejudicial, and the
interests favoring disclosure outweigh protection of the
therapist-recipient relationship, we hold that the trial
court did not err in ordering that the information be
disclosed.
CONCLUSION
We conclude that though, under a strict application
of section 10(a)(1), plaintiff did not introduce his
mental condition "as an element of his claim," other
"elements" required by section 10(a)(1) are present. See
Goldberg, 151 Ill. 2d at 281-82. The trial court did not
err in determining that the subject materials were to be
disclosed in this particular case. Our decision in this
case is narrow. We do not utilize our powers in this area
lightly, yet under the facts of the present case, the
interests of justice demand that we tip the balance in
favor of disclosure and truth. In this case, 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.
For these reasons, the judgment of the appellate
court is reversed, the judgment of the circuit court is
affirmed, and the cause is remanded to the circuit court
for further proceedings.
Appellate court judgment reversed;
circuit court judgment affirmed;
cause remanded.
JUSTICE HARRISON, dissenting:
The majority is correct that D.C. did not introduce
his mental condition as an element of his negligence
claim. The majority is incorrect in concluding that the
disputed records are nevertheless subject to disclosure
under section 10(a)(1) of the Mental Health and
Developmental Disabilities Confidentiality Act (740 ILCS
110/10 et seq. (West 1992)). Under the clear and
unambiguous language of section 10(a), mental health
records are privileged from disclosure unless one of the
specified exceptions applies. Because the only exception
invoked here does not apply, there is no legitimate basis
for holding that the statutory privilege must yield.
In ruling as it does, the majority ignores that
cardinal rule that a statute must be enforced as enacted
by the legislature. Raintree Health Care Center v.
Illinois Human Rights Comm'n, 173 Ill. 2d 469, 490-91
(1996). A court is not free to rewrite legislation, or to
ignore an express requirement contained in a statute.
People v. Palmer, 148 Ill. 2d 70, 88 (1992). While my
colleagues may believe that the interests of justice
would be better served if the provisions of the law gave
way here, that is no justification for their conduct. As
the author of the majority opinion aptly noted himself,
"It is not the function of this court to
determine what might be a better rule. The
legislature is vested with the power to enact
laws. Under the doctrine of separation of
powers, courts may not legislate, rewrite or
extend legislation. If the statute as enacted
seems to operate in certain cases unjustly or
inappropriately, the appeal must be to the
General Assembly, and not to the court."
People v. Garner, 147 Ill. 2d 467, 475-76
(1992).
The appellate court properly applied the provisions
of section 10(a) as written, and its judgment should be
affirmed. Accordingly, I dissent.
JUSTICE NICKELS joins in this dissent.
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. 82071--Agenda 24--March 1997.
D.C., Appellee, v. S.A. et al., Appellants.
Opinion filed October 17, 1997.
CHIEF JUSTICE FREEMAN delivered the opinion of the
court:
The issue presented in this appeal is twofold: (1)
whether, pursuant to section 10(a)(1) of the Mental
Health and Developmental Disabilities Confidentiality Act
(Act) (740 ILCS 110/10 et seq. (West 1992)), plaintiff,
D.C., introduced his mental condition as an element of
his negligence claim such that certain documents and
items of information within his post-accident psychiatric
treatment records were subject to disclosure; and (2)
whether the trial court correctly determined that the
records were to be disclosed.
Section 10(a)(1) of the Act provides, in part:
"sec. 10(a). Except as provided herein,
in any civil, criminal, administrative, or
legislative proceeding, or in any proceeding
preliminary thereto, a recipient, and a
therapist on behalf and in the interest of a
recipient, has the privilege to refuse to
disclose and to prevent the disclosure of the
recipient's record or communications.
(1) Records and communications may
be disclosed in a civil, criminal or
administrative proceeding in which the
recipient introduces his mental condition
or any aspect of his services received
for such condition as an element of his
claim or defense, if and only to the
extent the court in which the proceedings
have been brought, *** finds, after in
camera examination of testimony or other
evidence, that it 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) (West 1994).
BACKGROUND
On June 6, 1992, a traffic accident occurred on
Illinois Route 53 in Bolingbrook, Illinois, involving
plaintiff, D.C., a pedestrian, and an automobile driven
by defendant S.A. Plaintiff subsequently filed a
negligence action for personal injuries against
defendants, S.A. and J.A., Jr., in the circuit court of
Will County.
Plaintiff alleged in his complaint that at the time
of the accident, he was a pedestrian crossing Route 53,
that defendants were careless and negligent in several
respects, and that a car driven by defendant S.A. struck
him on that date causing injury. Plaintiff further
alleged in his complaint that at all times therein
mentioned, he was "in the exercise of ordinary care and
caution for his safety, and for the safety of all other
persons and vehicles lawfully upon the highways."
Plaintiff alleged that as a "direct and proximate result"
of defendant's negligence, plaintiff sustained "severe
and permanent injury," suffered pain, incurred medical
expense, and lost and would lose earnings and profits.
The complaint did not seek any damages due to mental
health injury or any related expenses.
Defendants answered the complaint by denying all of
the allegations of negligence made against them. Also,
defendants asserted an affirmative defense alleging that
plaintiff was negligent in several respects, including
failing to obey a traffic control device and suddenly
leaving the curb area and entering the roadway in the
path of defendant's vehicle and that such negligence of
plaintiff was "the" proximate cause of plaintiff's
damages. Defendants prayed that plaintiff be found
contributorily negligent in causing his alleged damages.
Defendants also filed a counterclaim alleging that
plaintiff was negligent and that such negligence was the
proximate cause of damages to defendants' vehicle.
In reply to defendants' affirmative defense,
plaintiff denied all allegations and alleged that he was
in the exercise of due care for himself and others. In
answer to defendants' counterclaim, plaintiff denied that
he was negligent or that such alleged negligence was a
proximate cause of defendants' damages. Plaintiff
asserted that he was in the exercise of due care for his
safety and others at the time of the accident, but that
defendants were not.
Pursuant to discovery rules, defendants issued
subpoenas for deposition directing, inter alia, Edwards
Hospital, the hospital where plaintiff was treated
immediately following the accident, and Dr. Drew M.
Georgeson, his treating physician, to produce plaintiff's
medical, psychiatric and/or psychological records for
copying. Plaintiff responded by filing a cross-motion for
a protective order which the trial court denied, ordering
production of the requested records, other than
psychiatric and psychological records, for copying.
Plaintiff's medical records revealed that, upon his
discharge from Edwards Hospital, where he had been
treated for three days immediately following the
accident, plaintiff was referred by Dr. Georgeson to
Linden Oaks Hospital, the psychiatric unit of Edwards
Hospital, for a psychiatric evaluation. Dr. Georgeson
partially summarized plaintiff's treatment in a letter to
plaintiff's attorney which expressed that plaintiff was
being referred because of an indication by plaintiff that
he might have been attempting suicide at the time of the
accident. Defendants consequently filed a motion to
compel the production of all of plaintiff's psychiatric
and psychological records, including those from Edwards
and Linden Oaks Hospitals. Asserting section 10(a)(1) of
the Mental Health Act as the basis, plaintiff objected.
In March 1995, the trial court ordered Edwards
Hospital to produce all of plaintiff's records, including
all psychiatric and psychological records "(including any
and all records from Linden Oaks Hospital)" for an in
camera inspection. By order dated March 28, 1995, the
court received the Edwards Hospital records and impounded
them. The court also ordered Linden Oaks Hospital to
produce any and all records regarding plaintiff for an in
camera inspection. The court continued further hearing on
the matter to May 1995.
On May 9, 1995, following an in camera inspection of
plaintiff's records from Edwards Hospital, the trial
court ordered that those records be disclosed to
defendants, with the exception of a purported petition
for involuntary admission, which is not at issue here. In
the order, the trial court again ordered that all of
plaintiff's records from Linden Oaks Hospital be produced
for an in camera inspection. The trial court subsequently
continued the matter.
On or about May 16, 1995, plaintiff's Linden Oaks
Hospital psychiatric records were received by the trial
court, which then conducted an in camera inspection of
them. At a hearing of the matter held on May 23, 1995,
the trial court found that, with respect to certain
documents and information from the two hospitals'
records, plaintiff had introduced his mental condition in
establishing that he was in the exercise of due care for
his own safety, and that such element of his mental
condition had been introduced by the filing of the
lawsuit. With respect to these materials and the
remainder of plaintiff's psychiatric records, the trial
court then made findings pursuant to the several factors
enumerated in section 10(a)(1).
The trial court found that the last three pages of
records produced from Edwards Hospital (a certificate by
an attending psychiatrist, a document signed by "Linda
Campbell," and an inventory of plaintiff's personal
belongings, all dated June 8, 1992) were relevant,
probative and, while prejudicial, not unduly prejudicial,
and also admissible. After noting that defendants'
counsel had attempted to obtain the information from
other sources, but had been unable to do so, the trial
court found that other satisfactory evidence was
demonstrably unsatisfactory at that time. Lastly, the
trial court found that disclosure was more important to
the interests of substantial justice than protection of
the therapist-recipient relationship.
Concerning plaintiff's Linden Oaks psychiatric
records, the trial court found that, with the exception
of three specific items of information, the entirety of
the records was not relevant. The trial court repeated
its previous findings under section 10(a)(1) with respect
to the three items: a paragraph entitled "reason for
admission," which appeared on a discharge summary, a
paragraph entitled "history of present illness," which
appeared in a report from Dr. Kraus, and a one sentence
statement by a psychologist concerning "the presenting
problem," which appeared in a "psychological assessment"
document. In doing so, the trial court specified that
other paragraphs within documents in which these three
items appeared were to be redacted because such
paragraphs concerned information which was irrelevant,
inadmissible, or unduly prejudicial.
In total, the trial court ordered that the last
three pages of plaintiff's Edwards Hospital records and
the three specified items of information from Linden Oaks
Hospital were to be disclosed to defendants.
The trial court temporarily stayed the order of
disclosure in order to allow plaintiff time to file an
interlocutory appeal. The trial court thereupon found
that the disclosure order involved a question of law as
to which there was a substantial difference of opinion,
and that an immediate appeal might materially advance the
ultimate determination of the litigation. See 155 Ill. 2d
R. 308. Accordingly, the court certified the following
question:
"Whether this court correctly held that the
plaintiff has introduced his mental condition
in establishing that he was in the exercise of
due care for his own safety and that element
of his mental condition has been introduced by
the filing of this lawsuit, and therefore, the
specified records are discoverable and ordered
turned over to defendants?"
The appellate court framed the question for review as
follows:
"[W]hether a plaintiff who files a
negligence lawsuit introduces his mental
condition as an element of his claim and
thereby waives his privilege to refuse
disclosure of mental health records under the
Mental Health and Developmental Disabilities
Confidentiality Act [citation]." 283 Ill. App.
3d 693, 694.
The appellate court answered this question by holding
that a plaintiff does not waive the privilege against
disclosure of mental health records under the Act unless
he specifically or affirmatively raises the condition as
an element of his claim. The appellate court further
reasoned that "[b]ecause the filing of a negligence
action does not require a plaintiff to specifically or
affirmatively plead his mental condition," a plaintiff
does not, thereby, necessarily introduce his mental
condition as an element of his claim. 283 Ill. App. 3d at
699. The appellate court concluded that the only manner
by which the plaintiff's mental condition became at issue
in this case was through defendants' attempt to establish
comparative negligence, but that, under section 10(a)(1),
only a recipient might waive the subject privilege. While
acknowledging that the result "may be perceived in some
quarters as an affront to justice and common sense," the
appellate court nevertheless expressed that its holding
was compelled by the plain language of section 10(a)(1)
of the Mental Health Act. 283 Ill. App. 3d at 699. As
stated previously, the appellate court reversed the trial
court's judgment and remanded the matter to the trial
court. 283 Ill. App. 3d 693.
The dissent argued that, given the facts of this
case, the therapist-recipient privilege must necessarily
yield in favor of constitutional due process and
fundamental fairness concerns inasmuch as the privilege
is not absolute. In the dissent's view, the privilege,
designed as a shield to protect the therapist-recipient
relationship, was being unfairly utilized by plaintiff in
this case as a sword to the detriment of defendants. 283
Ill. App. 3d at 700 (Lytton, J., dissenting).
The cause is now before this court based on the
grant of defendants' petition for leave to appeal (155
Ill. 2d R. 315(a)). After careful consideration, we
reverse the appellate court's judgment and remand the
cause to the trial court for further proceedings.
We note parenthetically that the record in this case
was impounded, and that defendants have not yet seen or
examined the documents or other items which were ordered
to be disclosed.
STANDARD OF REVIEW
Citing Computer Teaching Corp. v. Courseware
Applications, Inc., 199 Ill. App. 3d 154 (1990),
defendants contend that this matter is properly
reviewable under an abuse of discretion standard.
Generally speaking, a trial court is afforded great
latitude in rulings on discovery matters, and a court of
review will not disturb such rulings absent a manifest
abuse of discretion. See Maxwell v. Hobart Corp., 216
Ill. App. 3d 108, 110 (1991). Specifically, however, the
applicability of a statutory discovery privilege is a
matter of law for the trial court to determine and,
within that legal determination, factual questions may
sometimes arise. See Niven v. Siqueira, 109 Ill. 2d 357,
368 (1985). It follows then that the applicability of a
statutory exception to such a privilege is also a matter
of law for the trial court to determine.
In determining whether section 10(a)(1) applies to
a given case, a trial court must first determine as a
matter of law whether a recipient might have introduced
his mental condition as an element of his claim or
defense so as to waive the therapist-recipient privilege
recognized under the Act. 740 ILCS 110/10(a)(1) (West
1994). Disclosure may be had provided, and only to the
extent, the trial court secondarily finds that the
information sought to be disclosed is relevant,
probative, not unduly prejudicial, otherwise clearly
admissible, that other satisfactory evidence is
demonstrably unsatisfactory as evidence, and that
disclosure is more important to the interests of
substantial justice than protection from injury to the
therapist-recipient relationship. 740 ILCS 110/10(a)(1)
(West 1994); see Goldberg v. Davis, 151 Ill. 2d 267
(1992). This aspect of the inquiry expressly includes a
balancing of competing important interests and a
consideration of some factual matters, the very sort of
determination traditionally residing within the
discretion of a trial court.
In the present case, we review the propriety of the
appellate court's answer to the certified question before
it. That question essentially asked whether the trial
court's holding was legally correct concerning the
threshold applicability of section 10(a)(1) to the case,
and the secondary matter of disclosure pursuant to the
provision. The trial court found that its disclosure
order involved a question of law as to which there was a
substantial difference of opinion and requested guidance.
See Faier v. Ambrose & Cushing, P.C., 154 Ill. 2d 384
(1993); Kerker v. Elbert, 261 Ill. App. 3d 924, 925
(1994). Given the posture of the case, yet recognizing
the mixed nature of the issues presented, we nevertheless
determine that this matter is one subject to de novo
review. Cf. In re Lawrence M., 172 Ill. 2d 523, 526
(1996).
ANALYSIS
Before proceeding with our analysis, we first note
as a point of reference that, contrary to the appellate
court's statement, the certified question before it was
not whether a plaintiff's filing of a negligence lawsuit
introduces his mental condition and thereby waives his
section 10(a) privilege. Rather, the certified question
asked whether the plaintiff introduced his mental
condition in alleging that he was in the exercise of due
care for his own safety and by filing such lawsuit. See
Thompson v. Walters, 207 Ill. App. 3d 531 (1991) (attempt
to rephrase certified question is procedurally improper);
Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App.
3d 154 (1986) (appellate court could only consider
question on interlocutory appeal which was certified by
trial court).
Supreme Court Rule 201(b)(1) authorizes broad
discovery "regarding any matter relevant to the subject
matter involved in the pending action." 134 Ill. 2d R.
201(b)(1). Traditionally, the trial court is accorded
great latitude in determining the scope of discovery, as
discovery presupposes a range of relevance and
materiality which includes not only what is admissible at
trial, but also that which leads to what is admissible at
trial. See Computer Teaching Corp., 199 Ill. App. 3d at
157.
The objectives of pretrial discovery are to enhance
the truth-seeking process, to enable attorneys to better
prepare for trial, to eliminate surprise and to promote
an expeditious and final determination of controversies
in accordance with the substantive rights of the parties.
Mistler v. Mancini, 111 Ill. App. 3d 228, 231-32 (1982).
Privileges which protect certain matters from disclosure
are not designed to promote the truth-seeking process,
but rather to protect some outside interest other than
the ascertainment of truth at trial. 1 J. Strong,
McCormick on Evidence sec. 72, at 269 (4th ed. 1992).
Thus, privileges are an exception to the general rule
that the public has a right to every person's evidence.
Privileges are not to be lightly created or expansively
construed, for they are in derogation of the search for
the truth. See Illinois Educational Labor Relations Board
v. Homer Community Consolidated School District No. 208,
132 Ill. 2d 29, 34 (1989); see also People ex rel. Noren
v. Dempsey, 10 Ill. 2d 288 (1957).
The common law psychiatrist-patient privilege, a
privilege somewhat similar to our statutory therapist-
recipient privilege, has been described as serving both
important private interests in confidential and secure
conversation, and the important public interests in
facilitating the provision of appropriate mental health
treatment of the citizenry. See Jaffee v. Redmond, 518
U.S. ___, ___, 135 L. Ed. 2d 337, 345, 116 S. Ct. 1923,
1928-29 (1996); see also Novak v. Rathnam, 106 Ill. 2d 478 (1985).
Cognizant of these general concerns, we address the
specific arguments in the present case. We first note
that defendants do not claim that plaintiff introduced
his mental condition as an element of his damages, as is,
perhaps, the more typical case. Rather, defendants claim
that plaintiff introduced his mental condition as an
element of the liability aspect of his claim. Defendants
contend that the trial court correctly held that
plaintiff had done so. Defendants argue that the
appellate court misapprehended this point when it focused
solely on the obligation of defendants to plead a
plaintiff's comparative negligence, and the legal effect
of such pleading by defendants in this case. Citing
Leonardi v. Loyola University, 168 Ill. 2d 83, 93 (1995),
defendants maintain that proximate cause is recognized as
an essential element of plaintiff's case and sole
proximate cause is not an affirmative defense, but rather
an inherent element of a plaintiff's negligence case
which the plaintiff has the burden to prove and overcome.
Defendants argue that the information which they seek to
be disclosed contradicts the allegation in plaintiff's
prima facie case that defendants' negligence proximately
caused his injuries. They apparently argue that plaintiff
has thus introduced, by negative implication, his mental
condition as a causative element. Defendants cite to
Maxwell v. Hobart Corp., 216 Ill. App. 3d 108 (1991), as
an example of correct reasoning regarding waiver of the
therapist-recipient privilege under section 10(a)(1) and
assert that the appellate court's ruling below conflicts
with Maxwell. On this point, defendants charge that the
authorities relied on by the appellate court, Tylitzki v.
Triple X Service, Inc., 126 Ill. App. 2d 144 (1970), and
Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405
(1966), are distinguishable.
Prior to the adoption of the comparative negligence
doctrine in Illinois (see Alvis v. Ribar, 85 Ill. 2d 1
(1981)), a plaintiff was required to prove his own
exercise of due care as an essential element of his
negligence action. The absence of such a showing by
plaintiff, or sufficient affirmative evidence of
contributory negligence, was a complete bar to his
recovery. Long v. City of New Boston, 91 Ill. 2d 456, 462
(1982) (citing cases). Illinois courts consistently held
that the plaintiff had the burden of pleading freedom
from contributory negligence, as well as the burden of
proof on the issue. A complaint that lacked a sufficient
allegation of the plaintiff's due care or disclosed on
its face contributory negligence failed to state a cause
of action and was subject to a motion to dismiss. Long,
91 Ill. 2d at 462-63.
With the advent of comparative negligence, both
logic and fairness dictated that the defendant, who stood
to benefit from a showing that the plaintiff was
negligent, was the party who should have the burden of
proof on the issue. See Casey v. Baseden, 111 Ill. 2d 341, 346-47 (1986). Indeed, a plaintiff's negligence was
subsequently codified as an affirmative defense with the
requirement that the defendant plead the facts
constituting the defense. 735 ILCS 5/2--613(d) (West
1994).
Adoption of the doctrine of comparative negligence
did not, however, result in the elimination of proximate
cause as an element in a negligence action (see Owens v.
Stokoe, 115 Ill. 2d 177, 183 (1986); see also Leonardi,
168 Ill. 2d at 93), and there can be more than one
proximate cause contributing to any one injury (Johanek
v. Ringsby Truck Lines, Inc., 157 Ill. App. 3d 140
(1987)).
In the present case, plaintiff pled in the complaint
that he was in the exercise of ordinary care for his
safety at the time of the accident, that various acts of
defendants constituted negligence, and that such
negligence on defendants' part was a proximate cause of
his injuries.
Although not required to do so, plaintiff also pled
his own freedom from negligence. We agree with the
appellate court to the extent that such allegation, in
itself, does not serve to introduce mental condition as
an element of his claim. Plaintiff may amend his
complaint at any time to drop this allegation, and he
carries no burden of proof on this issue. It appears that
plaintiff's allegation of his own due care is simply
"boilerplate" language in the complaint and thus is
insufficient to constitute a substantive assertion of any
element of his claim.
We further agree with the appellate court that it
was the defendants who actually raised the issue of
plaintiff's negligence in this case. Defendants
accomplished this by raising the affirmative defense of
plaintiff's comparative negligence. Section 10(a)(1)
requires, however, that the "recipient introduce[ ] his
mental condition *** as an element of his claim or
defense." 740 ILCS 110/10(a)(1) (West 1994). Cf.
Goldberg, 151 Ill. 2d 267 (recipient introduced her
mental condition as well as services as part of complaint
prosecuted by Illinois Department of Professional
Regulation).
Also, plaintiff's denial of any contributory
negligence in his reply to defendants' affirmative
defense does not by itself, or in combination with his
unnecessary allegation of due care in the complaint,
result in the introduction by plaintiff of his mental
condition into the claim.
Defendants argue, however, that plaintiff introduced
his mental condition by pleading that defendants'
negligence proximately caused his injuries. Defendants
apparently reason that by claiming that defendants'
negligence was a proximate cause of his injuries,
plaintiff has introduced his mental condition as a
causative factor to the extent that it contradicts this
assertion. Recognizing that they rely on a negative
implication of plaintiff's mental condition, defendants
turn to Leonardi to buttress their argument, claiming
that sole proximate cause is an element of the
plaintiff's case.
Yet, plaintiff did not allege and is not required to
prove that defendants' negligence was the sole proximate
cause of his injuries. Leonardi cannot be read as
requiring the plaintiff to plead sole proximate cause, or
that a plaintiff carries the burden to prove sole
proximate cause. Leonardi only held that defendants are
not required to plead the sole proximate cause of another
party as an affirmative defense in order to offer
evidence at trial that another's negligence was the sole
cause of an injury. Leonardi, 168 Ill. 2d at 93-94.
Defendants apparently recognize that plaintiff's
mental condition as a causative factor could not be said
to have been introduced into the claim by his assertion
that defendants' negligence was a proximate cause of
plaintiff's injuries. This is so because plaintiff's
mental condition as a causative factor could not be
implicated with respect to his assertion about
defendants' conduct, unless and to the extent that it
contradicted that assertion.
In Maxwell, the appellate court found that the
plaintiff's condition of sobriety had been introduced
into the claim as it was a central, rather than
peripheral, issue and such condition had "bear[ing] on"
proximate cause and plaintiff's comparative fault.
Maxwell, 216 Ill. App. 3d at 115. Relevancy and
centrality, however, are not decisive of whether a
recipient has introduced such conditions as an element of
his or her claim or defense under section 10(a)(1). Cf.
Tylitzki, 126 Ill. App. 2d at 149 (affirmative aspect
controlling where mental condition claimed to have been
introduced based on allegations of damages for pain and
suffering); Webb, 73 Ill. App. 2d 405 (mental condition
must be "specifically made" part of claim for damages as
opposed to general allegation of pain and suffering); but
see Roberts v. Norfolk & Western Ry. Co., 229 Ill. App.
3d 706, 720 (1992) (plaintiff introduced mental condition
as element of claim by claiming compensatory damages
where barred psychiatric deposition testimony related to
amount of damages). We find that under the terms of
section 10(a)(1) something more is required for the
introduction of a condition as an element of a claim even
concerning those pertaining to liability. Based on the
pleadings and even implications arising from them,
defendants have not demonstrated the requisite nexus for
us to conclude that plaintiff has thereby introduced his
mental condition.
We recognize that under Illinois negligence law
prior to the adoption of the doctrine of comparative
negligence, the plaintiff would have been considered to
have introduced his mental condition as an element of his
claim under the instant pleadings here. The legislature,
in enacting section 10(a)(1) subsequent to the doctrine's
adoption, however, must be presumed to have had knowledge
of that fact. We recognize also that in commonsense
terms, it could be argued that, by filing a negligence
action, a plaintiff puts at issue all matters that are
relevant to the assertion of that claim. Nevertheless, we
conclude that under the terms of section 10(a)(1), and
given the pleadings in this case as well as the subject
information, plaintiff did not introduce his mental
condition as an element of his claim.
Defendants contend that the appellate court's ruling
against disclosure of the information prevented them from
presenting evidence in their defense that had the
potential to absolve them from liability. According to
defendants, the ruling thus constituted a denial of their
federal and state constitutional due process rights (U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2) to
answer and defend against the lawsuit. See Prink v.
Rockefeller Center, Inc., 48 N.Y.2d 309, 398 N.E.2d 517,
422 N.Y.S.2d 911 (1979).
In order to sustain such argument, defendants must
necessarily possess either a vested right to an
unfettered defense or claim that certain property of
theirs was in fact taken without due process of law.
However, defendants possess no right to an unfettered
defense. Cf. People v. Love, 310 Ill. 558, 563 (1923)
("no one has any vested right in a rule of evidence
either in a criminal or civil case, and there is no
constitutional prohibition against the legislature
changing it so long as it leaves to a party either in a
criminal or civil case a fair opportunity to make his
defense and to submit all the facts to the jury"). And
the upholding of the privilege by the appellate court in
this case would not have the effect of depriving
defendants of their defense, though we agree that their
defense would be greatly hampered. Also, as of yet, no
money judgment has been entered against defendants as a
result of this action so they are not close to suffering
a deprivation of their property. Under these
circumstances, no violation rising to constitutional
dimensions is indicated. But see Prink, 48 N.Y.2d at 317,
398 N.E.2d at 522, 422 N.Y.S.2d at 916 (stating that in
wrongful death action, where decedent's death from a 36-
story building fall was questionable as suicide, to hold
physician-patient privilege not waived is to ignore
realities of factual situation and to come "perilously
close" to taking defendant's property without due process
of law).
While we do not agree that the instant case presents
a situation where due process rights are violated, we yet
believe that under the circumstances presented here,
fundamental fairness commands that the privilege yield.
Cf. Galante v. Steel City National Bank, 66 Ill. App. 3d
476, 482 (1978) ("[i]t would be unjust" to allow
plaintiffs to prosecute their action against defendants
and, at the same time, refuse to answer questions, under
a claim of the fifth amendment privilege, the answers to
which "may substantially aid defendants or even establish
a complete defense"); Adkins v. Chicago, Rock Island &
Pacific R.R. Co., 54 Ill. 2d 511 (1973) (declining
jurisdiction as a matter of fundamental fairness); Canton
v. Chorbajian, 88 Ill. App. 3d 1015, 1022 (1980)
(examining circumstances attendant upon entry of default
judgment in interests of fundamental fairness though
party lacked requisite due diligence in petitioning to
set aside). Moreover, as this court has recognized, the
therapist-recipient privilege, like other privileges, is
not absolute. See Goldberg, 151 Ill. 2d at 277 (pointing
out various provisions within Act which recognize
exceptions); see also In re Marriage of Decker, 153 Ill. 2d 298, 312-13 (1992) (attorney-client privilege
inapplicable where client seeks or obtains services of
attorney in furtherance of criminal or fraudulent
activities).
In this case, the information plaintiff seeks to
protect potentially contradicts his assertion that
defendants were negligent and caused the accident. The
information has the potential to completely absolve
defendants from any liability. Too, the information meets
the criteria for disclosure under section 10(a)(1).
Certainly, the information is relevant as it pertains to
plaintiff's conduct and actions at the time of the
accident. The information is probative as well because it
appears to provide a possible explanation of how the
accident occurred. Further, the information does not
appear to be unduly prejudicial, as it does not concern
plaintiff's psychiatric treatment or progress, but refers
only to his purported conduct at the time of the accident
and various assessments by plaintiff's treaters of those
purported events. Also, the record reflects, as the trial
court found, that defendants' counsel unsuccessfully
attempted to obtain other information regarding
plaintiff's referral to Linden Oaks Hospital from other
sources; and there is no argument that the information is
not otherwise clearly admissible. Most certainly too,
disclosure of this small amount of information, which
does not concern plaintiff's psychiatric diagnosis,
treatment, or progress, but which concerns plaintiff's
possible conduct and motivation specifically at the time
of the accident, is more important to the interests of
substantial justice in this case than protecting
plaintiff or the relationship he holds with his
therapist.
Notably, the trial court ordered redaction of
material it believed did not satisfy the requirements of
section 10(a)(1) that appeared in several documents which
included the specified items of information. Furthermore,
the trial court found that the majority of plaintiff's
Linden Oaks Hospital psychiatric records did not meet the
provision's requirements for disclosure. Given that the
information here may be entirely decisive of defendant's
liability, that it is relevant, probative, admissible,
not obtainable elsewhere, not unduly prejudicial, and the
interests favoring disclosure outweigh protection of the
therapist-recipient relationship, we hold that the trial
court did not err in ordering that the information be
disclosed.
CONCLUSION
We conclude that though, under a strict application
of section 10(a)(1), plaintiff did not introduce his
mental condition "as an element of his claim," other
"elements" required by section 10(a)(1) are present. See
Goldberg, 151 Ill. 2d at 281-82. The trial court did not
err in determining that the subject materials were to be
disclosed in this particular case. Our decision in this
case is narrow. We do not utilize our powers in this area
lightly, yet under the facts of the present case, the
interests of justice demand that we tip the balance in
favor of disclosure and truth. In this case, 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.
For these reasons, the judgment of the appellate
court is reversed, the judgment of the circuit court is
affirmed, and the cause is remanded to the circuit court
for further proceedings.
Appellate court judgment reversed;
circuit court judgment affirmed;
cause remanded.
JUSTICE HARRISON, dissenting:
The majority is correct that D.C. did not introduce
his mental condition as an element of his negligence
claim. The majority is incorrect in concluding that the
disputed records are nevertheless subject to disclosure
under section 10(a)(1) of the Mental Health and
Developmental Disabilities Confidentiality Act (740 ILCS
110/10 et seq. (West 1992)). Under the clear and
unambiguous language of section 10(a), mental health
records are privileged from disclosure unless one of the
specified exceptions applies. Because the only exception
invoked here does not apply, there is no legitimate basis
for holding that the statutory privilege must yield.
In ruling as it does, the majority ignores that
cardinal rule that a statute must be enforced as enacted
by the legislature. Raintree Health Care Center v.
Illinois Human Rights Comm'n, 173 Ill. 2d 469, 490-91
(1996). A court is not free to rewrite legislation, or to
ignore an express requirement contained in a statute.
People v. Palmer, 148 Ill. 2d 70, 88 (1992). While my
colleagues may believe that the interests of justice
would be better served if the provisions of the law gave
way here, that is no justification for their conduct. As
the author of the majority opinion aptly noted himself,
"It is not the function of this court to
determine what might be a better rule. The
legislature is vested with the power to enact
laws. Under the doctrine of separation of
powers, courts may not legislate, rewrite or
extend legislation. If the statute as enacted
seems to operate in certain cases unjustly or
inappropriately, the appeal must be to the
General Assembly, and not to the court."
People v. Garner, 147 Ill. 2d 467, 475-76
(1992).
The appellate court properly applied the provisions
of section 10(a) as written, and its judgment should be
affirmed. Accordingly, I dissent.
JUSTICE NICKELS joins in this dissent.
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