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THIRD DIVISION 
September 29, 2000

No. 1-99-1358

I. BACKGROUND 

Susan Capra appeals from a circuit court order holding herin civil contempt for refusing to comply with prior orders of thecourt directing her to produce psychological and psychiatricdocuments subpoenaed in a medical malpractice suit. On appeal,Capra contends that the circuit court erred in holding her incivil contempt for refusing to produce the psychiatric records of her client, Emilio Reda, because such records are providedprivileged protection under the Mental Health and DevelopmentalDisabilities Confidentiality Act (740 ILCS 110/1 et seq. (West1998)). For the reasons that follow, we affirm the judgment ofthe circuit court.

This case arises out of a medical malpractice action broughtby Emilio and Mary Reda (plaintiffs), against Advocate HealthCare, f/k/a Lutheran General Health System, d/b/a LutheranGeneral Hospital, Inc., et al. (defendants). Plaintiffs'December 17, 1996 complaint alleged that, in June 1994,defendants were negligent in tendering postoperative care toEmilio following a knee surgery. The complaint further allegedthat, as a result of defendants' malpractice, Emilio sufferedinjuries including amputation of the right foot, renal failure,and a stroke. Emilio sought recovery for the injuries hesustained. Mary, Emilio's spouse, sought recovery for loss ofsociety, companionship and affection.

Defendants made a discovery request for production ofEmilio's medical records, including those records of Dr. SamuelDeLisi. On or about November 7, 1997, Capra made an objection tothe discovery request for records from DeLisi. Capra noted thatDeLisi was a psychiatrist and, thus, those medical records wereprotected by privilege. On August 20, 1998, defendants filed amotion to compel Emilio's medical records from DeLisi.

On November 5, 1998, following an in camera inspection ofEmilio's medical records, the circuit court entered an orderstating:

"Plaintiffs are to produce complete records of Dr.DeLisi and V.A. Hospital to defense counsel within 14days (on or before November 19, 1998)."

On November 19, 1998, plaintiffs filed an emergency motion tovacate the November 5, 1998 order compelling plaintiffs toproduce certain medical records.

On March 17, 1999, the circuit court entered an orderstating:

"Plaintiffs' [e]mergency [m]otions are denied;[p]laintiffs are given until March 22, 1999, to producethe psychological/psychiatric records of Emilio Reda todefense counsel ***"

On April 6, 1999, the circuit court held Capra in civil contemptfor refusing to comply with the discovery orders regardingdisclosure of Emilio's mental health information. The circuitcourt assessed Capra a fine in the amount of $100 with anadditional penalty of $10 per day until such time that thediscovery orders were complied with. This appeal followed.

II. ANALYSIS

A. STANDARD OF REVIEW

A contempt proceeding is an appropriate method for testingthe correctness of a discovery order. Lewis v. Family PlanningManagement, Inc., 306 Ill. App. 3d 918, 715 N.E.2d 743 (1999). Where an individual appeals a contempt judgment imposed forviolating a discovery order, that discovery order is subject toreview. Almgren v. Rush-Presbyterian-St. Lukes Medical Center,162 Ill. 2d 205, 216, 642 N.E.2d 1264 (1994). Therefore, thiscourt must review the propriety of the November 5, 1998, andMarch 17, 1999, discovery orders requiring disclosure of Emilio'smental health information. Whether an individual has introducedhis mental health as an element of his cause of actionconstitutes a question of law. D.C. v. S.A., 178 Ill. 2d 551,687 N.E.2d 1032 (1997). Our review is de novo. In re Marriageof Bonneau, 294 Ill. App. 3d 720, 723, 691 N.E.2d 123 (1998). 

B. THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIESCONFIDENTIALITY ACT

The Mental Health and Developmental DisabilitiesConfidentiality Act (the Act) (740 ILCS 110/1 et seq. (West1998)) guarantees that mental health records will be privilegedand confidential. The Act provides that "[a]ll records andcommunications shall be confidential and shall not be disclosedexcept as provided in this Act." 740 ILCS 110/3(a) (West 1998). The Act defines "confidential communication" or "communication"as:

"any communication made by a recipient or other personto a therapist or to or in the presence of otherpersons during or in connection with providing mentalhealth or developmental disability services to arecipient. Communication includes information whichindicates that a person is a recipient." 740 ILCS110/2 (West 1998).

Section 10(a)(1) of the Act governs disclosure ofconfidential information in civil cases and provides in relevantpart:

"(a) Except as provided herein, in any civil, criminal,administrative, or legislative proceeding, or in anyproceeding preliminary thereto, a recipient, and atherapist on behalf and in the interest of a recipient,has the privilege to refuse to disclose and to preventthe disclosure of the recipient's record orcommunications.

(1) Records and communications may be disclosed ina civil, criminal or administrative proceeding inwhich the recipient introduces his mentalcondition or any aspect of his services receivedfor such condition as an element of his claim ordefense, if and only to the extent the court inwhich the proceedings have been brought *** finds,after in camera examination of testimony or otherevidence, that it is relevant, probative, notunduly prejudicial or inflammatory, and otherwiseclearly admissible; that other satisfactoryevidence is demonstrably unsatisfactory asevidence of the facts sought to be established bysuch evidence; and that disclosure is moreimportant to the interests of substantial justicethan protection from injury to the therapist-recipient relationship or to the recipient orother whom disclosure is likely to harm. *** [N]orecord or communication between a therapist and arecipient shall be deemed relevant for purposes ofthis subsection, except the fact of treatment, thecost of services and the ultimate diagnosis unlessthe party seeking disclosure of the communicationclearly establishes in the trial court acompelling need for its production." 740 ILCS110/10(a)(1) (West 1998).

Thus, before the circuit court can order disclosure, it must findthat the recipient has introduced his mental condition as anelement of his claim or defense. If he has, the court mustconduct an in camera examination of the testimony or otherevidence to determine if it is relevant, probative, and notunduly prejudicial. If he has not placed his mental health atissue, disclosure of the records or communications is notpermitted.

The circuit court in this case found that Emilio had placedhis mental health at issue under the terms of section 10(a)(1) ofthe Act. We agree. The evidence indicates that Emilio hassuffered injuries including amputation of the right foot, renalfailure, and stroke. Additionally, Emilio complained of severeheadaches, loss of memory, changes in comprehension anddifficulties in performing daily activities. At her deposition,Mary testified that her husband experienced personality changesafter the operation. Mary specifically testified:

"He's very emotional. He's very emotional. *** He gets veryfrustrated ***. Extremely frustrated. More than before.[H]e can be very mean, extremely mean. And I'm always atfault."

Mary also testified that he never behaved in this manner beforethe surgery. Plaintiffs contend that Emilio's marked changes inpersonality, loss of memory, deficits in comprehension anddifficulty performing routine tasks are neurological injuriesonly. We, however, believe that these "injuries" may bereasonably interpreted or characterized as psychological traumas. Accordingly, we believe that testimony given by plaintiffsregarding these "injuries" placed Emilio's mental health atissue. Finally, after finding that Emilio had placed his mentalhealth at issue, the circuit court conducted an in cameraexamination of Emilio's mental health information. The circuitcourt subsequently determined that evidence regarding Emilio'smental health was relevant, possessed probative value and was notunduly prejudicial to plaintiffs. This is a question of fact,and there is nothing in the record which indicates that thisdecision was against the manifest weight of the evidence.

We find that the November 5, 1998 and March 17, 1999 ordersrequiring discovery of Emilio's mental health information wereproper pursuant to section 10(a)(1) of the Act. This courtfurther finds that Capra subjected herself to a contempt findingfor the purpose of testing the validity of a court order. Caselaw has found this to be an appropriate method to secure aninterpretation in good faith and not contemptous of the court. People v. Shukovsky, 128 Ill. 2d 210, 219 (1988); Hinojosa v.Josyln Corp., 262 Ill. App. 3d 673, 680 (1994); In re Marriage ofDaniels, 240 Ill. App. 3d 314 (1992). Therefore, the trialcourt's order of contempt against Capra is vacated.

Accordingly, the judgment of the circuit court of CookCounty is affirmed in part and vacated in part.

Affirmed in part and vacated in part.

BARTH, J., concurs.

JUSTICE SOUTH, dissenting.

Respectfully, I must dissent. The majority has focused onan isolated statement plaintiff Mary Reda made in response todefense counsel's question during her discovery depositionregarding any changes she noticed in her husband. She answeredtruthfully that yes, he appeared to be more emotional, morefrustrated and meaner than he was before the surgery. Nowdefendants have seized upon that and argue that Emilio's mentalhealth condition has been raised for purposes of the Act. However, a careful reading of the pleadings makes it clear thatplaintiffs have never made a claim for Emilio Reda'spsychological trauma, and no amount of interpretation orextrapolation from discovery depositions can make it so.

The Act was carefully drawn to maintain the confidentialityof mental health records except in cases where the plaintiff hasintroduced his mental health as an issue. Sassali v. RockfordMemorial Hospital, 296 Ill. App. 3d 80, 693 N.E.2d 1287 (1998).The privilege exists unless "mental condition" is specificallymade a part of either the claim or defense and is made so by thepleadings. Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405,219 N.E.2d 165 (1966). The privilege is too important to be brushed aside when themental condition of the plaintiff may be only peripherallyinvolved. Tylitzki v. Triple X Service, Inc., 126 Ill. App. 2d144, 261 N.E.2d 533 (1970). A recipient of mental healthservices waives the confidentiality of his records only if heaffirmatively places his own mental health condition at issue. Sassali, 296 Ill. App. 3d at 83. When patients receive treatmentfrom a mental health professional, they have a right to expectthat in most circumstances their records will be kept inconfidence. That is the promise made by the Act. See Mandziarav. Canulli, 299 Ill. App. 3d 593, 701 N.E.2d 127 (1998).

Neither plaintiffs' complaint nor defendants' defense hasraised Emilio Reda's mental condition. I have carefully read thepleadings, and nowhere am I able to locate the issue of Emilio'smental condition. A neurological injury is not synonymous withpsychological damage as the majority would suggest. Nor doesneurological injury directly implicate psychological damage. Ibelieve that the majority's finding that plaintiff's mentalcondition was introduced in this case will set in motion anerosion of the protection afforded mental health care recipientsand the confidentiality to which the Act says they are entitled. I am afraid that any passing reference to a person's mentalcondition following an injury or trauma will immediately giverise to disclosure under the Act. Opposing counsel need only askthe question in order to trigger the exception toconfidentiality. I do not believe that is what is contemplatedunder the Act or case law.

Therefore, I would find that the circuit court erred inholding attorney Capra in contempt of court and would vacate the order.