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SECOND DIVISION
December 24, 2001

We address a discovery issue in this appeal that implicates the physician-patient privilege.The question before us is whether a parent who files a medical malpractice action on behalf ofone child may, by answering certain questions and raising certain issues in the course ofdiscovery, waive the physician-patient privilege that shields the medical records of her otherchildren. The defendants in this case persuaded the trial court that the records were discoverable. Counsel for the plaintiff refused to produce the records. He was then held in contempt and fined. Counsel now appeals the contempt order. We hold that the medical records relating to themother's pregnancies and deliveries are discoverable, as well as the records of the minorplaintiff's siblings as they relate to their births, when, and only when, the privilege is waived. But we hold that subsequent medical records of the siblings are not discoverable. We affirm inpart, reverse in part and vacate the contempt order.

Sharon and Karl Kunz filed a negligence suit on behalf of their son Kurt, who suffersfrom cerebral palsy. Plaintiffs allege Kurt's present condition was caused by defendants'negligence in the course of Kurt's birth. Kurt was delivered at South Suburban Hospital by Dr.Neil Levie. Dr. Perry Gilbert, the radiologist who interpreted Sharon's ultrasound before Kurt'sbirth, was an agent of Ingalls Memorial Hospital and Dr. Harold Lipschutz Radiology, Ltd., n/k/aRadiology Imaging Consultants, S.C.

Defendants were able to obtain court orders compelling plaintiffs to produce treatmentrecords for Sharon's earlier pregnancies, in 1988 and 1990, that resulted in the births of Kurt'stwo siblings. They also obtained orders compelling the production of subsequent medicalrecords of those siblings. Defendant South Suburban Hospital had already obtained recordsassociated with the 1988 birth of one of the siblings at South Suburban. Plaintiffs moved to barthe use of the records of the 1988 birth. Dr. Levie moved to compel the records from the 1990birth at an Indiana hospital of the other sibling. Dr. Gilbert's counsel then filed an affidavit froman anonymous consultant explaining why the records would be relevant to an expert opinionabout the causes of Kurt's cerebral palsy. Dr. Levie's counsel filed an affidavit stating that aneurologist said there is a reasonable likelihood that the records might affect the opinions he orshe could reach about the causes of Kurt's condition.

Plaintiffs moved to strike the affidavits and, in the alternative, moved to compel theappearance of the unnamed consultant and neurologist to answer questions about the affidavits incompliance with section 2-1105 of the Code of Civil Procedure. 735 ILCS 5/2-1105 (West1998). The court denied plaintiffs' motions. Plaintiffs' counsel then refused to produce thetreatment records of Sharon's second pregnancy, the 1990 birth and the subsequent medicalrecords of Kurt's siblings. Plaintiffs' counsel was held in contempt and a sanction was imposed,from which he appeals.

We first address two motions taken with the case. Defendants first moved to dismissplaintiffs, as named appellants, because they are not proper parties to the appeal of a contemptorder. We agree. A discovery order compelling production is appealable only through acontempt order and imposition of a sanction. People ex rel. Scott v. Silverstein, 87 Ill. 2d 167,171, 429 N.E.2d 483 (1981). Plaintiff's counsel is the only proper appellant in this appeal. SeeLewis v. Family Planning Management, Inc., 306 Ill. App. 3d 918, 715 N.E.2d 743 (1999). Themotion to dismiss Sharon and Karl Kunz as appellants is granted.

Defendants also moved to dismiss a part of the appeal that claims as error the denial ofthe plaintiffs' motion to strike the affidavits of defendants' experts. Discovery orders are notappealable in a pending case. They are reviewable on appeal from the final order. Silverstein, 87Ill. 2d at 171. The trial court's denial of plaintiffs' motion to strike the affidavits did not resolvethe litigation on its merits, nor was the denial "cast in terms of a contempt proceeding imposingsanctions" (Silverstein, 87 Ill. 2d at 171), which would allow review. 155 Ill. 2d R. 304(b)(5). We have no jurisdiction over the trial court's denial of plaintiffs' motion to strike the affidavits ofdefendants' experts. Defendants' motion to dismiss that portion of the appeal is also granted.

We turn to the contempt order prompted by counsel's refusal to comply with court-ordered discovery. The trial court is afforded great latitude in discovery matters and we will notdisturb the trial court's ruling absent a manifest abuse of discretion. D.C. v. S.A., 178 Ill. 2d 551,559, 687 N.E.2d 1032 (1997).

A person's medical history and records are subject to the right of privacy, which may notbe invaded in the absence of waiver. See Kunkel v. Walton, 179 Ill. 2d 519, 689 N.E.2d 1047(1997). "[T]he medical records of nonparties are protected by the physician-patient privilege andare not discoverable." In re D.H., 319 Ill. App. 3d 771, 774, 746 N.E.2d 274 (2001). Theprivilege "will often act to bar what is clearly relevant and material information, since theprivilege pertains to any information which a physician obtains 'in attending any patient in aprofessional character, necessary to enable him or her professionally to serve such patient.'" D.H.,319 Ill. App. 3d at 775, quoting House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437, 446,564 N.E.2d 922 (1990). In Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850, 435N.E.2d 140 (1982), a patient sued a hospital, then moved to discover records of other patientswho received similar treatment from the hospital. The trial court ordered the records producedwith the names of the patients deleted. We reversed, holding:

"Although the Illinois statute on the physician-patient privilege exempts civilmalpractice actions, we believe that that exception should be limited to only allowthe disclosure of the records of the patient who is bringing the malpractice action. A broadening of that exception to allow the disclosure of communicationsinvolving patients who are not parties to the litigation would neither serve a publicinterest nor the private interests of those nonparty patients." Parkson, 105 Ill.App. 3d at 855.

See 735 ILCS 5/8-802 (West 1998).

Using similar reasoning, courts in other states have refused to find waiver of thephysician-patient privilege when a mother brings suit on behalf of a child for injuries sufferedduring childbirth. "By suing in her representative capacity as the mother of the infant plaintiff,the mother did not waive her physician-patient privilege even though she alleged in the bill ofparticulars that the defendants failed to record or appreciate her medical history." Murphy v.LoPresti, 232 A.D.2d 461, 462, 648 N.Y.S.2d 169, 170 (1996). The Murphy court held that themother only waived the privilege for records when the child was in utero. See also Palay v.Superior Court, 18 Cal. App. 4th 919, 22 Cal. Rptr. 2d 839 (1993).

A Michigan court found the privilege extended to the medical records of a minorplaintiff's siblings. Dierickx v. Cottage Grove Hospital, 152 Mich. App. 162, 393 N.W.2d 564(1986). "Although [the minor plaintiff's siblings] Katie and Kimberly are related to plaintiffs,they are not parties to this action. The existence of a genetic defect may be an issue in thislitigation, but Katie and Kimberly (or their representatives) have not placed the health of Katieand Kimberly in controversy. Thus, they have not waived the privilege." Dierickx, 152 Mich.App. at 167, 393 N.W.2d at 566. "Further, plaintiffs have not implicitly waived the statutoryprivilege as to Katie and Kimberly by bringing this lawsuit." Dierickx, 152 Mich. App. at 168,393 N.W.2d at 567. The Michigan court held that "although the requested medical records maybe relevant to defendants' theory of a genetically transmitted defect, the records are privilegedand not subject to discovery." Dierickx, 152 Mich. App. at 169, 393 N.W.2d at 567.

In Wepy v. Shen, 175 A.D.2d 124, 571 N.Y.S.2d 817 (1991), defendant hospital askedfor discovery of medical and school records of the siblings of the minor plaintiff. The court heldthat information revealed by the plaintiff's parents during their depositions was "mere facts andincidents of the medical history" of the plaintiff's siblings, not confidential communications madeto a doctor, and so was not privileged. But the court also held that the parents did not waive thephysician-patient privilege as to the medical records themselves, despite expert testimony thatthere was a possible connection between plaintiff's neurological problems and her siblings'problems. Wepy, 175 A.D.2d at 125, 571 N.Y.S.2d 818. "The mere fact that a relative, distantor near in terms of kinship, has commenced a medical malpractice action alleging a birth defectshould not subject all her relatives to the 'long arm' reach of the law authorizing their medicalhistories opened to all." In re New York County DES Litigation, 168 A.D.2d 44, 47, 570N.Y.S.2d 804, 805 (1991). "[T]he plaintiffs are not required to turn over their mother's medicalrecords beyond the gestation period; nor are the more distant members of their families requiredto release medical records." New York DES, 168 A.D.2d at 47, 570 N.Y.S.2d at 806. Theprivilege shielding the medical background of nonparties "cannot be defeated by defendants'assertion that it is material and necessary to their defense." Monica W. v. Milevoi, 252 A.D.2d260, 263, 685 N.Y.S.2d 231, 233 (1999). And in D.H., this court found that "New York law is inaccordance with Illinois law on the issue of whether the medical records of nonparties areprotected by the physician-patient privilege with regard to both the facts and communicationscontained therein." D.H., 319 Ill. App. 3d at 779.

We agree with the reasoning set out in the New York and Michigan cases. A reading ofthe Illinois cases, particularly Kunkel, Parkson, and D.H., leads us to conclude that filing amedical malpractice lawsuit on behalf of a child, even when a genetic cause independent ofmedical malpractice may become an issue, does not thereby waive the physician-patient privilegein favor of the child's siblings.

Defendants next argue that Sharon expressly waived the privilege shielding her earlierpregnancies and the medical records of Kurt's siblings when she testified in her deposition aboutthose pregnancies and the health of her children.

Sharon testified in her deposition that her eldest son was born in 1988 at South SuburbanHospital. Sharon was diagnosed with preeclampsia, or high blood pressure, during thepregnancy. The baby was delivered three weeks early by cesarean section. Sharon described herfirst child's present health as excellent. Her second child was born in 1990 at MunsterCommunity Hospital in Indiana. There were no complications during the pregnancy and Sharondelivered the child vaginally. Sharon testified that her second child's present health was alsoexcellent.

Sharon then testified that, during her pregnancy with Kurt, her third child, she hadproblems with spotting and cramping, which she also had during her earlier pregnancies. Shevisited Dr. Levie on September 19, 1992, and told him that she felt her third pregnancy wasprogressing much like her first. She could not feel the baby moving and was suffering from highblood pressure. She also believed the baby was too small because her abdomen was not as largeas it had been at the same point during her earlier pregnancies. She told Dr. Levie about herhistory of preeclampsia during her first pregnancy.

When Kurt was delivered, Sharon became concerned when she noticed on a monitor thatthe fetal heart rate was dropping. She testified that she had a "similar experience" during her firstpregnancy when she was connected to a fetal monitor.

In Yetman v. St. Charles Hospital, 112 A.D.2d 297, 491 N.Y.S.2d 742 (1985), thedefendants sought the mother's medical records of her other pregnancies. The court found that,although a mother's medical records for the period when the infant plaintiff was in utero arediscoverable, the medical history of her other pregnancies is a matter that falls within the scopeof the physician-patient privilege. Yetman, 112 A.D.2d at 298, 491 N.Y.S.2d at 744-45. Absentwaiver, defendants were precluded from compelling her to answer questions or discloseinformation about her medical history. Yetman, 112 A.D.2d at 298, 491 N.Y.S.2d at 745. However, the Yetman court found that the mother waived the privilege when she revealed herpast medical history to her child's treating physicians in the course of treatment for the child. Yetman, 112 A.D.2d at 298-99, 491 N.Y.S.2d at 745; see also Lezell v. State, 142 Misc.2d 837,538 N.Y.S.2d 902 (1989); Gilroy v. McCarthy, 254 A.D.2d 325, 678 N.Y.S.2d 644 (1998). TheYetman court said:

"We base our conclusion, in part, upon the fact that the mother, prior to thecommencement of this litigation, revealed her past medical history, and, inparticular, her history of numerous miscarriages, to various physicians for thepurpose of aiding in the treatment of the infant plaintiff during the yearssubsequent to his birth. Significantly, this information was furnished by themother, not in confidence with respect to treatment being provided to her, butrather in connection with the treatment of the infant plaintiff." Yetman, 112A.D.2d at 298, 491 N.Y.S.2d at 745.

In light of Sharon's deposition testimony about her earlier pregnancies and how theycompared to the pregnancy and birth of plaintiff, we believe she has waived the physician-patientprivilege regarding the medical records of her pregnancies and deliveries of her first twochildren. Yetman, 112 A.D.2d at 298-99, 491 N.Y.S.2d at 745. But we find Sharon's depositionremark that her first two children's current health is "excellent" insufficient to waive the privilegeas to the children's subsequent medical records. It is akin to the "facts and incidents of medicalhistory." Wepy, 175 A.D.2d at 124-25, 571 N.Y.S.2d at 818. "Facts and incidents of medicalhistory" are distinguishable from communications to a physician. Communications areprivileged; facts are not. Wepy, 175 A.D.2d at 124, 571 N.Y.S.2d at 818, citing Upjohn Co. v.United States, 449 U.S. 383, 395, 66 L. Ed. 2d 584, 595, 101 S. Ct. 677, 685 (1981). Unlike thebirth records of the siblings, which are closely related to the pregnancy records of Sharon andimplicate her past medical history, the subsequent medical history of the siblings was not asubject of her deposition and is unrelated to possible medical malpractice associated with Kurt'sbirth. Sharon's statement that her sons' health is "excellent" was not a communication made to adoctor. It was a statement of opinion that is not privileged, so waiver does not apply. The trialcourt abused its discretion in ordering contemnor to produce the health records of Kurt's siblingssubsequent to their birth.

We affirm the trial court's order directing contemnor to produce Sharon's medical recordsfor the periods during her first two pregnancies and deliveries. We reverse the court's orderdirecting production of Kurt's siblings' medical records after birth. Because contemnor acted ingood faith to test the validity of a contempt order on appeal, we vacate the trial court's order ofcontempt and the fine of $10 per day. Reda v. Advocate Health Care, 316 Ill. App. 3d 1115,1119, 738 N.E.2d 153 (2000). We also grant defendants' motions to dismiss plaintiffs from thisappeal and dismiss the portion of the appeal of the trial court's denial of plaintiffs' motion tostrike the affidavits of defendants' experts.

The judgment of the circuit court of Cook County is affirmed in part, reversed in part andvacated in part; motions to dismiss granted.

Affirmed in part, reversed in part and vacated in part; motions granted.

GORDON and COUSINS, JJ., concurring.