2022 IL App (1st) 211283
Ill. App. Ct.2022Background
- Plaintiff (John Doe) was represented by Burke Wise Morrissey & Kaveny in a medical-malpractice trial arising from a suicide attempt treated in an ER; Doe testified and the hospital sought a HIPAA qualified protective order and a subpoena under the Mental Health and Developmental Disabilities Confidentiality Act (Act).
- After a jury verdict awarding Doe over $4 million, defendants issued a May 2015 press release and one defendant (Kaveny) gave an interview in the Chicago Daily Law Bulletin revealing Doe’s name and detailed mental-health information drawn from his records and treating-physicians’ depositions.
- Doe sued, alleging defendants violated the Act by redisclosing his confidential mental-health records/communications without informed consent; he sought damages under section 15 of the Act.
- Defendants moved to dismiss under section 2-615, arguing (inter alia) the Act did not apply because they lacked a therapeutic relationship with Doe and that Doe waived confidentiality by testifying at a public trial.
- The trial court dismissed count I with prejudice, struck an amended claim, and later denied reconsideration; Doe appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act authorizes a claim against non-therapists who redisclose mental-health records/communications | Act protects records/communications and authorizes suit by “any person aggrieved”; redisclosure by defense counsel of information obtained in litigation is actionable | Liability is limited to therapists/agencies in a therapeutic relationship | Court: Act’s plain language covers records/communications disclosed to any person; non-therapists can be liable for redisclosure when no exception applies — claim survives dismissal |
| Whether Doe waived confidentiality by testifying at the public trial | Testimony was subject to a HIPAA qualified protective order limiting use and return/destruction after litigation — no broad waiver of Act protections | Public trial testimony waives confidentiality (citing Novak) | Court: Allegations that a qualified HIPAA order restricted use meant Doe did not necessarily waive Act protections; dismissal reversed |
| Whether the litigation exception (section 10(a)(1)) or Doe’s consent to disclosure for litigation permitted defendants’ subsequent press release | Doe consented only for use in the litigation; section 5(d) bars redisclosure absent specific consent | Use in the malpractice suit allowed disclosure; once public, defendants could repeat it | Court: Section 10(a)(1) permitted disclosure in the proceeding but not necessarily public redisclosure; section 5(d) prohibits redisclosure without specific consent — plaintiff plausibly alleged violation |
| Relevance of the 2015 statutory amendment clarifying records are protected regardless of therapeutic relationship | Amendment shows therapeutic relationship is not required to assert a claim | Statements predated the amendment, so it should not govern | Court: No need to decide amendment’s retroactivity because under the pre-amendment definitions the disclosed information was created in the presence of therapists and thus protected; amendment does not change the result |
Key Cases Cited
- Napleton v. Village of Hinsdale, 229 Ill. 2d 296 (2008) (standard for ruling on a section 2-615 motion to dismiss)
- House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437 (1990) (Act’s main purpose is to protect confidentiality of mental-health records)
- Laurent v. Brelji, 74 Ill. App. 3d 214 (1979) (Act generally prohibits disclosure of records/communications)
- Johnson v. Lincoln Christian College, 150 Ill. App. 3d 733 (1986) (Act can support claims against non-provider entities that redisclose protected information)
- Novak v. Rathnam, 106 Ill. 2d 478 (1985) (testimony by a psychiatrist in a criminal trial can waive confidentiality in some contexts)
- Quigg v. Walgreen Co., 388 Ill. App. 3d 696 (2009) (court held only therapists in a therapeutic relationship could be liable under the Act — decision critiqued in this opinion)
- Martino v. Family Service Agency of Adams County, 112 Ill. App. 3d 593 (1982) (background discussion on scope of Act and therapeutic relationships)
- People ex rel. Madigan v. Wildermuth, 2017 IL 120763 (2017) (statutory interpretation principle: plain language controls legislative intent)