Doe v. Weinzweig
2015 IL App (1st) 133424-B
Ill. App. Ct.2015Background
- Plaintiff (Jane Doe) sued defendant Dr. Norman Weinzweig after a 2011 sexual encounter, alleging she contracted herpes simplex virus type 2 (HSV-2) and asserting claims including battery, negligence, fraud/concealment, and intentional infliction of emotional distress.
- Defendant filed a 2-619 motion attaching a declaration and medical lab record showing a negative HSV-2 test from October 2010, and later answered the amended complaint denying exposure.
- Plaintiff sought discovery of defendant’s medical records; the trial court initially sustained physician-patient privilege objections to records but plaintiff moved under Ill. S. Ct. R. 215 for an impartial physical exam and blood test for HSV-2.
- The court granted the Rule 215 examination; defendant refused to comply, sought interlocutory review, and the court (after refusing a Rule 308 certification) entered an order finding him in indirect civil contempt and fined him $1,000; defendant appealed that contempt order.
- While the first appeal was pending, the trial court again found defendant in contempt, fined him, struck his pleadings, and entered default judgment; defendant appealed. The appellate court consolidated the appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Rule 215 (was defendant’s physical condition "in controversy"?) | Doe: Defendant placed condition in issue by submitting medical records and a declaration denying HSV-2; court may order exam under Rule 215. | Weinzweig: Mere denial doesn’t put condition in controversy; Rule 215 aimed at plaintiffs; blood test cannot prove infection at time of encounter. | Court: Defendant placed his condition in issue by submitting medical evidence; Rule 215 exam was within court’s discretion and would materially aid resolution — Rule 215 order affirmed. |
| Physician-patient privilege (does it bar a Rule 215 exam/report?) | Doe: Privilege does not apply to court-ordered Rule 215 exams. | Weinzweig: Rule 215 exam circumvents statutory physician-patient privilege protecting medical information. | Court: Privilege does not apply to Rule 215 examination or reports created for litigation; no violation. |
| Constitutional privacy challenge (as-applied) | Doe: Not waived; but procedural issue. | Weinzweig: Exam violates Illinois (and federal) privacy rights. | Court: Defendant forfeited Rule 19 notice requirement for as-applied constitutional challenge and thus cannot prevail on that ground. |
| Contempt orders and jurisdiction (was contempt proper; did trial court have jurisdiction to enter second contempt/default after appeal?) | Doe: October 29 contempt was enforceable; later orders were proper responses to noncompliance. | Weinzweig: He refused in good faith to secure appellate review; filing of appeal divested trial court of jurisdiction so later orders void. | Court: Although Rule 215 order stands, the contempt findings were entered to facilitate an interlocutory appeal ("friendly contempt") and defendant’s noncompliance was in good faith — both contempt orders vacated; trial court lacked jurisdiction to enter the second contempt/default after notice of appeal, so that order is vacated and cause remanded. |
Key Cases Cited
- In re Estate of Stevenson, 44 Ill. 2d 525 (Ill. 1970) (Rule 215 may be ordered whenever physical/mental condition is in issue, irrespective of who raised it)
- Norskog v. Pfiel, 197 Ill. 2d 60 (Ill. 2001) (discovery orders not ordinarily appealable but may be reviewed when contempt sanctions are imposed)
- Doyle v. Shlensky, 120 Ill. App. 3d 807 (Ill. App. Ct. 1983) (physician-patient privilege inapplicable to Rule 215 examinations)
- Salingue v. Overturf, 269 Ill. App. 3d 1102 (Ill. App. Ct. 1995) (reports obtained under Rule 215 are not protected by physician-patient privilege)
- Moore v. Centreville Township Hospital, 246 Ill. App. 3d 579 (Ill. App. Ct. 1993) (privilege does not attach to litigation-created exam for medical-legal opinion)
- Kraima v. Ausman, 365 Ill. App. 3d 530 (Ill. App. Ct. 2006) (distinguishable: no affirmative medical evidence placed condition in issue)
- Pritchard v. Swedish American Hospital, 191 Ill. App. 3d 388 (Ill. App. Ct. 1989) (defendant did not place medical condition at issue by mere status as subject of complaint)
- Revolution Portfolio, LLC v. Beale, 341 Ill. App. 3d 1021 (Ill. App. Ct. 2003) (imposition of sanctions renders contempt order final and appealable)
- Wierzbicki v. Gleason, 388 Ill. App. 3d 921 (Ill. App. Ct. 2009) (filing notice of appeal divests trial court of jurisdiction over matters of substance)