Lead Opinion
delivered the opinion of the court:
Before us are two medical malpractice actions which have not yet gone to trial. In each case, defense counsel filed a pretrial discovery motion to obtain authorization to conduct ex parte interviews with one of the plaintiff’s treating physicians. In cause No. 74831, the motion to interview was granted, but the appellate court subsequently reversed after holding that it had jurisdiction to proceed. (
The facts necessary to our disposition are not in dispute. In cause No. 74831, Cheryl Almgren filed an action in the circuit court of Cook County to recover damages for personal injuries she sustained as the result of medical malpractice allegedly committed by Rush-Presbyterian-St. Luke’s Medical Center. According to Almgren’s complaint, she was hospitalized at the Medical Center for treatment and services related to a mental disorder. Almgren was known to be self-destructive and had a history of suicide attempts, so she was maintained in a locked ward. In what Almgren contends was a breach of the usual and customary standards of medical care, the Medical Center released her on a one-day pass on March 30, 1986. The pass required her to return to the Medical Center at 6 p.m., but she failed to do so. Instead, she claims, she wandered the streets of Chicago “aimlessly in a psychotic state” until she was struck and seriously injured by a Chicago Transit Authority train.
The one-day pass was issued to Almgren by Dr. Mehlinger-Mitchell. Mehlinger-Mitchell was a psychiatric resident at the Medical Center at the time of Almgren’s admission to the facility, but is no longer employed there. During the course of pretrial discovery, the Medical Center moved the court for an order permitting it and its attorneys to conduct ex parte interviews with Mehlinger-Mitchell. That motion was granted, and Almgren took an immediate interlocutory appeal.
In reversing the circuit court’s order, the appellate court sua sponte raised the issue of whether it had jurisdiction to consider the appeal. There is no dispute that this was proper, for the appellate court has an independent duty to consider its jurisdiction before proceeding to the merits of the case. When jurisdiction is lacking, the court must dismiss the appeal on its own motion. (See Mirly v. Basola (1991),
Article VI, section 6, of the 1970 Illinois Constitution provides that final judgments may be appealed as a matter of right from the circuit court to the appellate court. (Ill. Const. 1970, art. VI, § 6.) There is no corresponding constitutional right to appeal from interlocutory orders of the circuit court. Rather, article VI, section 6, vests this court with the authority to provide for such appeals, by rule, as it sees fit. (Ill. Const. 1970, art. VI, § 6.) Except as specifically provided by those rules, the appellate court is without jurisdiction to review judgments, orders or decrees which are not final. Flores v. Dugan (1982),
Pursuant to its constitutional authority to provide for appeals from other than final judgments, this court has adopted Rules 306, 307, and 308 (134 Ill. 2d Rules 306, 307, 308). The appellate court in this case attempted to place the circuit court’s order within the ambit of Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), which relates to injunctions, on the theory that it had the effect of enjoining Almgren from asserting her patient-therapist privilege under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1991, ch. 91½, par. 801 et seq). This argument is untenable. In People ex rel. Scott v. Silverstein (1981),
Although it acknowledged the applicability of these principles to normal discovery orders, the appellate court held that the potential threat to Almgren’s privilege should take this case out of the Silverstein rule. The appellate court reasoned that once the interviews are allowed to proceed and confidential information about Almgren is disclosed, any post-judgment appeal would be meaningless, for the appellate court could never restore "the complete confidentiality so essential to an effective treatment relationship between the therapist and her patient.”
The problem with this rationale is that Almgren’s right to complete confidentiality was already lost by the time Rush moved for leave to conduct the interviews. As the appellate court itself acknowledged (
The appellate court’s analysis must also fail because it overlooks that this court’s decision in Silverstein itself involved a claim of privilege. In that case one of the defendants subpoenaed a newspaper reporter for his deposition and for the production of certain documents. The reporter moved to quash, contending, inter alia, that enforcement of the subpoena would violate the reporter’s privilege act (Ill. Rev. Stat. 1979, ch. 51, par. 111 et seq.). That motion was denied, and, on appeal, the appellate court found that the order was final and appealable under Supreme Court Rule 301 (73 Ill. 2d R. 301). This court reversed, holding that the circuit court’s order, made as a preliminary discovery order in a pending suit, was interlocutory in nature and not subject to review under Rule 301. As previously discussed, the court further held that such discovery orders are not made appealable under the provisions of Supreme Court Rules 306, 307, or 308 (73 Ill. 2d Rules 306, 307, 308). Although the case now before us involves a claim of privilege under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1991, ch. 91½, par. 801 et seq.), rather than the reporter’s privilege act, we agree with the conclusion of the appellate court in Kmoch v. Klein (1991),
A question then remains as to whether jurisdiction was nevertheless proper in the appellate court by virtue of section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1991, ch. 91½, par. 810(b)). Under that statute, any order to disclose or not to disclose communications and records protected by the patient-therapist privilege is "considered a final order for purposes of appeal and shall be subject to interlocutory appeal.” (Ill. Rev. Stat. 1991, ch. 91½, par. 810(b).) If valid, this legislation would make appealable orders which would not otherwise qualify as final judgments and which would not otherwise be appealable under supreme court rules. This court has previously held, however, that attempts by the legislature to make nonfinal judgments appealable violate article VI, section 6, of our constitution (Ill. Const. 1970, art. VI, § 6). (People v. Partee (1988),
We turn then to cause No. 74897. In that case, Judith Testin filed an action to recover damages for personal injuries she sustained as the result of medical malpractice allegedly committed by Dreyer Medical Clinic, Copley Memorial Hospital, and Drs. David Lando and Ann L. West. These defendants were also sued by Mrs. Testin’s husband, Richard, for loss of consortium.
According to the pleadings and stipulations by the parties, Mrs. Testin underwent gynecological surgery at Copley Memorial in 1989. The surgery was performed by Dr. Scott Donovan, an employee of Dreyer Medical Clinic. During the course of her recovery at Copley, Mrs. Testin received care from Dr. Ann West and various other employees of the Dreyer Clinic, including Dr. Judson Jones. On the fifth day following the operation, Dr. Jones ordered diagnostic X rays of Mrs. Testin’s abdomen after she complained of severe abdominal pain. The X rays were interpreted by Dr. Lando. Mrs. Testin claims that Lando and the other named defendants were negligent because they failed to properly diagnose and treat a post-operative complication, causing her to suffer a ruptured bowel.
During the course of pretrial discovery, one of Dreyer’s lawyers, William Cunningham, asked the Testins’ counsel for permission to meet privately with Dr. Paul Q. Berwick. Berwick was an employee of Dreyer, owned shares in the clinic, and served on its board of directors. He was of interest to Cunningham because he had been consulted about Mrs. Testin’s case after the X rays were taken, and he performed the surgical procedure which ultimately revealed the existence of her bowel rupture. Although none of the Testins’ allegations of negligence were based on acts or omissions committed by Berwick, Cunningham believed that he needed to meet privately with the doctor in order to prepare his defense of Dreyer properly.
The Testins’ lawyer refused to permit such a meeting, so Dreyer asked the circuit court to enter an order granting its attorneys leave to meet with Berwick "without the presence of the Plaintiff or Plaintiff’s counsel and without sanctions.” The circuit court denied the motion and instead entered an order prohibiting defense counsel from engaging in ex parte communications with Berwick regarding Mrs. Testin’s medical care and treatment. Dreyer’s motion for reconsideration was denied. In addition, the circuit court held Dreyer’s lawyer Cunningham in contempt of court and fined him $100 after Cunningham announced that he intended to speak to Berwick in violation of the court’s order.
Cunningham did not appeal the adjudication of contempt against him. Although an appeal was filed by Dreyer, Dreyer did not argue the issue of contempt in its brief, and the appellate court declared the issue waived (
Although the order challenged in this case prohibited, rather than allowed, ex parte contacts with the plaintiff’s treating physician, there is no question that it must still be characterized as a pretrial discovery order. For the reasons discussed in connection with cause No. 74831, the appellate court has no jurisdiction to consider interlocutory appeals from such orders. They are subject to review only on appeal from the final judgment in a case.
The appellate court here did not dispute these principles, but reasoned that it nevertheless had authority to consider an immediate appeal from the circuit court’s order by virtue of the $100 fine imposed on Dreyer’s attorney for his contumacious conduct. We agree that the imposition of a sanction for contempt is final and appealable. As this court explained in Silver-stein,
"although occurring within the context of another proceeding and thus having the appearance of being interlocutory, it is an original special proceeding, collateral to and independent of, the case in which the contempt arises. [Citations.] It is the end of the proceeding begun against the witness. There is nothing left to be done but enforce the judgment.”
We further agree that where an individual appeals contempt sanctions imposed on him for violating or threatening to violate a pretrial discovery order, that discovery order is subject to review. See Silverstein,
The problem with applying these rules here is that Dreyer’s attorney has not appealed the sanctions for contempt. The appeal is advanced only by Dreyer. Given that Dreyer, itself, was not held in contempt or fined, we fail to see what standing it has to raise the contempt issue. Standing requires injury in fact to a legally cognizable interest (In re Marriage of Rodriguez (1989),
The injury to Dreyer comes not from the sanction for contempt, but from the underlying order prohibiting the ex parte interviews. As we have previously discussed, that order, standing alone, is not independently reviewable on interlocutory appeal. The only legitimate jurisdictional basis for the appeal is the imposition of sanctions for contempt. Dreyer has made no effort to explain why its lawyer did not appeal from that contempt sanction, nor has it endeavored to formulate a theory as to why it might have the right to proceed in the lawyer’s stead. Rather, it has ignored the issue of contempt completely. Accordingly, as the appellate court expressly found, the issue of contempt has been waived. This is fatal to the appeal, for absent the question of contempt, the jurisdiction of the reviewing court is lost.
For the foregoing reasons, the judgments of the appellate court in both cause No. 74831 and cause No. 74897 are vacated, and these appeals are dismissed.
Appellate court judgments vacated;
appeals dismissed.
JUSTICE NICKELS took no part in the consideration or decision of this case.
Dissenting Opinion
dissenting:
These two appeals involve medical malpractice cases that have been consolidated in this court. Both appeals challenge the propriety of trial court rulings with respect to defense motions to engage in pretrial ex parte interviews of the plaintiffs’ treating physicians. The parties undertook interlocutory appeals from the trial court rulings. The majority dismisses the appeals for lack of appellate jurisdiction. I respectfully dissent from the majority’s disposition of these appeals on jurisdictional grounds.
ANALYSIS
I disagree with the majority’s decision to dismiss the instant appeals for lack of jurisdiction, without first providing the parties an opportunity to argue this significant and dispositive issue to the court. The arguments of the parties to this appeal are dedicated wholly and exclusively to the substantive issues involving the Petrillo doctrine (see Petrillo v. Syntex Laboratories, Inc. (1986),
I also cannot concur in the majority’s sua sponte declaration regarding the constitutionality of section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/10(b) (West 1992)). The majority concludes that, to the extent section 10(b) permits appeals from less than final judgments in civil cases, section 10(b) is unconstitutional as an improper infringement on this court’s power to determine the scope of interlocutory appeals from nonfinal judgments of the trial court. This argument was not raised by the parties to this appeal, and the majority needlessly offers dicta on the constitutionality issue. It is well established that "this court has long held that constitutional questions will not be considered if the cause can be determined on other grounds.” (People ex rel. Waller v. 1990 Ford Bronco (1994),
In addition, although I agree with the majority’s recognition that an appeal from an order of contempt permits review of the underlying discovery order, I disagree with the majority’s reasoning that Dreyer’s appeal in this case is not in reality the appeal of its counsel, Cunningham, whom the trial court held in contempt of court. Although this court has observed that it is the attorney-contemnor who should appeal from a contempt order (see, e.g., People v. Shukovsky (1988),
The majority’s disposition is particularly disturbing in the instant cause because of its impact on the interests of the litigants. By severely limiting the opportunities for interlocutory appellate review of a trial court’s Petrillo ruling, the majority disregards the potentially irreparable harm that may occur to a party whose treating physician has engaged in ex parte communications with opposing counsel. The majority wholly ignores that the danger of ex parte communication may include the prospect that the treating physiclan will disclose material that should not have been divulged under any circumstances. The plaintiffs in the instant appeals argue that a trial court’s erroneous allowance of defense requests to engage in ex parte communications with the plaintiffs’ treating physicians threatens the plaintiffs’ significant and fundamental physician-patient privileges. Plaintiffs contend that the harm from a wrongful infringement on the plaintiff’s privileges as a patient cannot be effectively remedied after trial and final judgment. As one commentator has observed, "Confidentiality, once breached, cannot be restored.” (Corboy, Ex Parte Contacts Between Plaintiff’s Physician and Defense Attorneys: Protecting the Patient-Litigant’s Right to A Fair Trial, 21 Loy. U. Chi. L.J. 1001, 1011 (1990).) The interests of the defendants, who seek ex parte communication in the present cases, are equally significant. An erroneous ruling from the trial court, which improperly bars ex parte communication, could substantially interfere with the defendant’s ability to develop and present its case at trial.
These concerns deserve a reviewing court’s immediate attention, notwithstanding the majority’s perception of a lack of appellate jurisdiction. I note that in other jurisdictions, courts have created and recognized an exception to the general rule of nonreviewability of interlocutory orders of the trial court. Under this exception, the reviewing court may consider an interlocutory appeal from a nonfinal order of the trial court, where the trial court’s ruling may result in an erroneous invasion of an important right or privilege, and where the damage from such an erroneous invasion cannot be effectively remedied if the court awaits final judgment to undertake review. See, e.g., Gulfstream Aerospace Corp. v. Mayacamas Corp. (1988),
Although our appellate court has acknowledged that other jurisdictions have adopted this rule allowing for interlocutory appeals from certain significant, nonfinal rulings of the trial court, and although the appellate court has advocated adoption of the rule in this State, our appellate court has believed itself barred from applying the rule because of its perceived inconsistency with precedent of this court. (See, e.g., Matsunaga v. Worrell (1988),
Although the majority finds no appellate jurisdiction in the present cases, one potential avenue for appellate review under Illinois law may remain for other cases where the parties seek interlocutory review of a trial court’s Petrillo ruling. Principles of law and equity might permit a trial court to enter an order finding that, pursuant to Rule 308, the court’s Petrillo ruling "involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” (134 Ill. 2d R. 308(a).) Unfortunately, at the time that the majority’s opinion was originally filed, the litigants were provided no opportunity to seek such permissive interlocutory appeal in the instant cases. After the filing of the majority opinion, the appellants filed petitions for rehearing. In conjunction with these petitions, the parties filed a motion seeking interlocutory appeal under Supreme Court Rule 308. This motion is based on the trial court’s entry of an order certifying the parties’ Petrillo arguments for interlocutory, Rule 308 review. However, the majority has denied the motion and refuses to grant interlocutory appeal under Rule 308. In my view, such refusal is unwise and unsound, because it performs a gross disservice to the litigants and the trial court. The parties’ Petrillo arguments have been fully briefed and litigated, and there is no defensible reason for the majority’s bald refusal to address them.
As a result of the majority’s rulings, parties to a lawsuit appear to be barred from obtaining any interlocutory appellate review of all trial court Petrillo rulings, without regard to the extent to which an erroneous ruling of the trial court may cause irreparable damage to the interest of the litigants and violate fundamental privilege principles. In view of the majority’s refusal to grant the parties’ Rule 308 request for interlocutory review, it is entirely unclear whether Rule 308 remains a viable avenue for interlocutory appellate review of a trial court’s Petrillo order. In my opinion, the majority’s disposition is unsettling and inequitable. The interests of the plaintiffs and the defendants, with respect to a trial court’s Petrillo ruling, are too significant to the parties, and to the progress of the litigation, to delay appellate review until final judgment. The trial bar needs and deserves guidance on the important and recurring issues presented in these appeals. In my view, such issues merit interlocutory, appellate scrutiny.
For these reasons, I respectfully dissent.