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First Division
Nov. 26, 2001

1-00-2816 

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Defendants, Dr. Thomas Manos and Dr. Mark Kolozenski,refused to produce patient appointment books and the medicalrecords of two patients named in a subpoena duces tecum issued byplaintiff Department of Professional Regulation (the Department),pursuant to section 60d of the Civil Administrative Code ofIllinois (20 ILCS 2105/60d (West 1998) (recodified as 20 ILCS2105/2105-105 (West 2000))). When defendants refused to producethe subpoenaed documents, plaintiff filed a complaint in thecircuit court of Cook County to enforce the subpoena. Defendants answered the complaint, asserting the physician-patient privilegeas an affirmative defense. 735 ILCS 5/8-802 (West 2000). Plaintiff filed a response denying defendants' affirmativedefense without explanation. Both the defendants and plaintiffsubsequently filed cross-motions for summary judgment.⁽¹⁾ Thecircuit court granted plaintiff's motion for summary judgment;however, the order provided that the production of the subpoenaedrecords would be stayed if defendants filed a notice of appeal. Defendants now appeal to this court to determine whether dentistsare within the class of healthcare providers covered by thephysician-patient privilege.

We hold that dentistry is a branch of surgery, and becausethe privilege covers both "physicians" and "surgeons," defendantscannot be compelled to produce their patient files for any reasonoutside of those stated in section 8-802 of the Illinois Code ofCivil Procedure (the Code) (735 ILCS 5/8-802 (West 2000)). Whilethe defendants' patient files -- irrespective of the patientidentifying information being redacted -- are privileged, theappointment books are not privileged and must be produced.

BACKGROUND

On February 3, 2000, plaintiff filed a complaint in thecircuit court of Cook County to enforce an administrativesubpoena duces tecum it had served on defendants. The subpoenaordered defendants to produce the patient records of two patientsdefendants had treated on Monday, June 23, 1997. The subpoenaalso sought production of the defendants' patient appointmentbooks, including the names, addresses and phone numbers of allpatients treated on any Monday in the months of February, March,April and June of 1997. Defendants waived service, answered thecomplaint and asserted the physician-patient privilege as anaffirmative defense. Both plaintiff and defendants subsequentlyfiled cross-motions for summary judgment (735 ILCS 5/2-1005 (West2000)).

On July 31, 2000, the circuit court conducted a hearing onplaintiff's motion for summary judgment. The circuit court beganthe hearing by explaining that it had done a lot of research andhad "[found] it very hard to come to the conclusion that adentist should not be entitled to the same protections *** as anyother so-called medical professionals." Nevertheless, after bothattorneys presented their arguments, the circuit court grantedplaintiff's motion for summary judgment and ordered thedefendants to produce the records requested in plaintiff'sNovember 2, 1999, subpoena with the patient names and any otheridentifying information redacted. The court further ordered theproduction of said records by August 30, 2000, unless defendantsfiled a notice of appeal. If such a notice was filed, defendantswould then not be required to produce the subpoenaed documentsunless they were ordered to do so by this court. As its basisfor ruling the circuit court stated:

"I have no guidance from any appellate tribunal. There is no case involving a dentist or anyoneproviding oral care. I think that there is a strongargument in favor of the consideration of the publicagency's protection of the public in contradistinctionto the individual. I think that the privilege of theindividual must be surrendered to the benefit of thepublic at large. *** It is a perfect case for 160 NorthLaSalle Street. Let some appellate court tell us inthe future exactly what we should do."

In accordance with the circuit court's order, defendants filed atimely notice of appeal on August 23, 2000.

On appeal, defendants contend: (1) summary judgment wasimproper because issues of material fact exist; (2) dentists areconsidered "surgeons" under Illinois case law, and therefore theyare covered by the physician-patient privilege; and (3) thematerial requested by the Department to be produced falls underthe physician-patient privilege.

Plaintiff responds that: (1) the Department has subpoenapower over defendants' patient files as part of an administrativeinvestigation of defendants pursuant to the Illinois DentalPractice Act (Dental Act) (225 ILCS 25/25 (West 2000)) and theCivil Administrative Code of Illinois (Civil Code) (20 ILCS2105/2105-105 (West 2000)); (2) the circuit court's order wasproper because dentists are not specifically covered by thephysician-patient privilege; and (3) even if defendants areentitled to assert the physician-patient privilege, thesubpoenaed documents do not fall under the privilege.

ANALYSIS

While we gently respond that perfection is in the eye of thebeholder, we do agree with our circuit court colleague that theissue before us is one of first impression in Illinois and note160 North LaSalle appreciates his concerns.

I. Standard of Review

This case requires us to interpret a statute and determinewhether summary judgment was properly granted; therefore, ourreview is de novo. Rockwood Holding Co. v. Department ofRevenue, 312 Ill. App. 3d 1120, 1123 (2000); In re Estate ofHoover, 155 Ill. 2d 402, 411 (1993). "Summary judgment is to begranted only if the pleadings, affidavits, depositions,admissions, and exhibits on file, when reviewed in the light mostfavorable to the nonmovant, show that there is no genuine issueas to any material fact and that the movant is entitled tojudgment as a matter of law." Berlin v. Sarah Bush LincolnHealth Center, 179 Ill. 2d 1, 7 (1997); 735 ILCS 5/2-1005(c)(West 2000). "On de novo review of an order granting summaryjudgment, this court must ascertain whether the trial courtproperly concluded there were no genuine issues of material factand if there were none, whether judgment for the movant wascorrect as a matter of law." Constitutional Casualty Co. v.Soder, 281 Ill. App. 3d 657, 660 (1996). In conducting ourreview, "we are free to consider any pleadings, depositions,admissions, and affidavits on file at the time of the hearingregardless of whether facts contained therein were presented tothe trial court in response to the motion for summary judgment."William J. Templeman Co. v. United States Fidelity & GuarantyCo., 317 Ill. App. 3d 764, 769 (2000).

II. Issues of Material Fact

Defendants assert that the circuit court "made numerousfactual determinations and failed to consider numerous relevantfactual issues." Specifically, defendants argue that thefollowing issues of material fact exist: (1) whether defendantswere the subject of a departmental investigation; (2) whether theDepartment needed the records for the investigation; (3) whetherthe public was at any risk of harm from the defendants; (4)whether the Department needed the patient files to protect thepublic from a risk of harm from the defendants; and (5) whetherthe Department was unable to obtain consent from the patients torelease the files.

We first note that defendants themselves filed a cross-motion for summary judgment and thereby agreed, at leastostensibly, that only a question of law exists. Fremont CasualtyInsurance Co. v. Ace-Chicago Great Dane Corp., 317 Ill. App. 3d67, 73 (2000); Kopier v. Harlow, 291 Ill. App. 3d 139, 141(1997). While defendants strenuously deny they filed such amotion, defendants' cross-motion for summary judgment wascontained in their "response brief" to plaintiff's motion forsummary judgment. The conclusion to defendants' "response brief"states:

"[T]he Department's Motion for Summary Judgmentshould be denied. Moreover, because the sole basis forthe Department's complaint is to compel the production ofthose documents, Drs. Manos and Kolozenski are entitledto summary judgment as a matter of law.

WHEREFORE, for the foregoing reasons, Defendants,Drs. Manos and Kolozenski respectfully request that theCourt deny the Department's Motion for Summary Judgment,enter summary judgment on behalf of Drs. Manos andKolozenski on the Department's complaint, and award Drs.Manos and Kolozenski whatever other further relief theCourt deems appropriate."

Defendants' protestations aside, if it reads like a cross-motionfor summary judgment, sounds like a cross-motion for summaryjudgment and seeks cross-relief of summary judgment as a matterof law, it can come as no surprise to defendants that this court,after reviewing all the filings in this case, section 2-1005 ofthe Code (735 ILCS 5/2-1005 (West 2000)) and Illinois SupremeCourt Rules 191 and 192 (134 Ill. 2d Rs. 191, 192), concludesthat defendants presented a cross-motion for summary judgment. However, "the mere filing of cross-motions for summary judgmentdoes not require that [we] grant the requested relief to one ofthe parties where genuine issues of fact exist precluding summaryjudgment in favor of either party." Travelers Insurance Co. ofIllinois v. Eljer Manufacturing Inc., 307 Ill. App. 3d 872, 878(1999).

Here, the record fails to indicate why the circuit court didnot rule on the defendants' cross-motion for summary judgment. However, our de novo review of the record leads us to concludethat no issues of material fact exist which would precludesummary judgment. Constitutional, 281 Ill. App. 3d at 660.

As to defendants' first argument that a material fact israised, defendants state no evidence was presented to establish"whether Drs. Manos and Kolozenski were the subject of adepartmental investigation." However, the record reflects thatthey were served an administrative subpoena from the governmentaldepartment designated by statute to investigate dental licenseholders (225 ILCS 25/25 (West 2000); 20 ILCS 2105/2105-105 (West2000)). The language of the subpoena compelling defendants todisclose the documents "[p]ursuant to Chapter 20, IllinoisCompiled Statutes (1992), paragraph 2105/60d" provided asufficient basis for the circuit court to conclude thatdefendants were subjects of a departmental investigation. Underthis statute, the Department may "compel the production of anybooks, papers, records, or any other documents that the Director*** deems relevant or material to any such investigation orhearing conducted by the Department." 20 ILCS 2105/2105-105 (West2000)(formerly 20 ILCS 2105/60(d) (West 1998)). The language ofthe subpoena and that of the statute cited above obviates anydoubt that the defendants were under some type of departmentalinvestigation. Further, the failure of defendants to offer anyfacts to rebut plaintiff's assertion that they were under aninvestigation is fatal to their argument that summary judgment onthis basis was improper. Lappin v. Costello, 232 Ill. App. 3d1033, 1040 (1992); Lackey & Lackey, P.C. v. Prior, 228 Ill. App.3d 397, 399 (1992).

Defendants next assert as an issue of material fact whetherthe Department needed the subpoenaed records as part of itsinvestigation. We find that the issuance of the subpoena alonewas a sufficient basis for the circuit court to conclude that thesubpoenaed documents were "needed" by the Department. Furthermore, the record is bereft of any evidence that might leadthis court to conclude that the subpoenaed documents wereirrelevant or unnecessary to the investigatory and regulatoryduties of the Department. The suggestion that an issue ofmaterial fact exists, without supporting evidence, isinsufficient to create one. In re Marriage of Palacios, 275Ill. App. 3d 561, 568 (1995).

Defendants further claim that a material issue of factexists as to whether there was a risk of harm to the publicarising from defendants' conduct. The language contained in theDental Act itself defeats defendants' argument because the DentalAct declares dentistry "to affect the public health, safety andwelfare and to be subject to regulation and control in the publicinterest." 225 ILCS 25/2 (West 2000). Furthermore, defendantsfail to provide even a scintilla of evidence suggesting anulterior purpose of the Department's investigation. Therefore,we find that there was a sufficient basis for the circuit courtto conclude that the purpose of the Department's investigationwas to protect the public from risk of harm from defendants. 225ILCS 25/2 (West 2000).

Finally, defendants allege that a question of material factexists as to whether the Department obtained the consent of thepatients to release the files. The record contains no evidenceof whether the Department attempted to obtain the two namedpatient's consent to release their patient files. We decline toassume that the Department failed to obtain the patients'consent. Once again, the suggestion that an issue of materialfact exists, without supporting evidence, is insufficient tocreate one. In re Marriage of Palacios, 275 Ill. App. 3d at568.

Based on the analysis above, we find that defendants havefailed to establish a question of material fact sufficient topreclude an order of summary judgment. In re Marriage ofPalacios, 275 Ill. App. 3d at 568. Therefore, we now turn to thesecond step of our inquiry: whether summary judgment was properlygranted in favor of plaintiff as a matter of law. 735 ILCS 5/2-1005(c) (West 2000).

II. Physician-Patient Privilege

The physician-patient privilege did not exist at common law. Geisberger v. Willuhn, 72 Ill. App. 3d 435, 436-37 (1979). In1959, the Illinois legislature amended the Illinois Code of CivilProcedure to give patients an expectation of privacy concerningtheir personal health information. The Code provides for thedisclosure of private information under the following limitedcircumstances:

"