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JUSTICE RARICK delivered the opinion of the court:

The plaintiff, Jane Doe, filed a multicount complaint in the circuit court of St. ClairCounty against Dr. Santosh P. Chand and Dr. Santosh P. Chand, M.D., Ltd. (defendants),alleging, inter alia, a violation of the AIDS Confidentiality Act (Act) (410 ILCS 305/1 et seq.(West 1998)).

Doe testified that in February 1999 she learned that her husband had tested positivefor the human immunodeficiency virus (HIV). She stated that she did not immediately seekto be tested because she was certain what the results would be and she was not ready to findout. On April 17, 1999, Doe went to Dr. Chand's office to pick up her mother, who was alsoa patient of Dr. Chand's. When Doe told Dr. Chand about her husband, Dr. Chand suggestedthat she be tested, and she agreed. Doe testified that Dr. Chand did not provide a writtenconsent form or give her any written information concerning the testing or the availabilityof counseling. Doe stated that she called Dr. Chand's office on several occasions to inquireabout the results of her HIV test. Each time she was told that the test results were not in. Doe stated that she learned of the results from her sister, Pamela Randolph. Doe and hermother had gone to Randolph's house. When they arrived, Randolph told her that she hadbeen informed by Dr. Chand that Doe had tested positive for HIV. Doe also testified that shehad spoken with several other persons who stated that they knew Doe had HIV or AIDS andthat they had learned of such from Dr. Chand.

Doe further testified that in May 2000 she took a leave of absence from her job as aloan processor at the local credit union. Doe stated that many of Dr. Chand's patients werecustomers of the credit union and that she was constantly worried about whether they knewof her condition. Doe moved to Chicago and lived with a friend. While there, she workedas a bank teller. Prior to trial, Doe relocated to Champaign, Illinois.

Barbara Fergeson testified that she was a patient of Dr. Chand's and knew Doe. InJuly 1999 she encountered Doe in a local shopping mall. During their conversation, Doedisclosed that her husband had AIDS and that he had given her AIDS. Fergeson stated thatabout a month later she was in Dr. Chand's office and mentioned that she had seen Doe. Atthat time Dr. Chand stated that Doe had AIDS. Lisa Mohammed, Dr. Chand's phlebotomist,and Angela Hubbard, the receptionist, were present at the time.

Pamela Randolph, Doe's sister, testified that Dr. Chand called her at home and toldher that Doe had tested positive for HIV. According to Randolph, Dr. Chand felt that Doeshould get the news from a family member. Randolph further testified that several monthslater she noticed that Doe was very upset. When Randolph asked why, Doe stated that shehad been hearing rumors that others knew of her condition and that Dr. Chand had obviouslytold other people.

Nancy White testified that she was a patient of Dr. Chand's and knew Doe from Dr.Chand's office. White testified that she was in Dr. Chand's office when Dr. Chand called herback into an examining room and told her to stay away from Doe because she had AIDS.

Lisa Mohammed testified that she was a phlebotomist and worked in Dr. Chand'soffice. Mohammed stated that after being informed that Doe's test results were positive, Dr.Chand asked her if she should call Doe's sister because she did not know how Doe wouldhandle the information. Mohammed responded that Dr. Chand knew best how to handle herpatients. Mohammed did not remember Dr. Chand telling Barbara Fergeson that Doe hadAIDS.

Natasha Thornton testified that she was a patient of Dr. Chand's. She was seeing Dr.Chand in an effort to get pregnant. She testified that Dr. Chand had called her and asked herto come to the office. Once she was there, Dr. Chand informed her that she had testedpositive for a sexually transmitted disease. When Thornton disputed the test results, Dr.Chand said that she was just like Doe, who did not want to believe that she had AIDS.

Over defendant's objections, Doe introduced the testimony of Judith Murashige, anart therapist. Murashige testified that she had treated Doe for emotional issues related tohaving been diagnosed HIV positive and to Dr. Chand's disclosure of her HIV status.

Introduced into evidence was the deposition of Dr. Paul L'Ecuyer, an infectious-disease specialist. Dr. L'Ecuyer testified that Doe was his patient and had been referred tohim by her insurance company for treatment of her HIV infection. He first saw Doe on May28, 1999. Doe continued to see Dr. L'Ecuyer on a regular basis. At one of their follow-upappointments, Doe stated that she was upset with Dr. Chand for having disclosed to severalpeople that she was HIV positive. Dr. L'Ecuyer opined that Doe suffered from anxiety anddepression and that Dr. Chand's disclosure of Doe's HIV status was a contributing cause.

Dr. Chand testified that she called Doe at home. Doe's mother answered the phoneand asked about the test results. Dr. Chand told her mother that she did not know what tosay, that they should talk to Doe, and that she was not happy. Dr. Chand testified that PamelaRandolph called. Dr. Chand told Randolph that she was not happy and to have Doe call herbecause she needed to get some more work-up done on her.

On May 13, 1999, Doe came to Dr. Chand's office for further testing. Dr. Chanddiscussed the results of the test with Doe and the need for follow-up testing. Dr. Chanddenied disclosing the results of the test to Doe's mother, her sister, or anyone else.

Prior to trial, Doe voluntarily dismissed all but the count under the Act. Dr. Chand'srequest for a jury trial was subsequently denied by the trial court. After a bench trial, the trialcourt found that Doe had proved "numerous" violations of the Act, some of which werenegligent and some of which were intentional or reckless, and that she had sufferedemotional and nonemotional damages as a result. Based upon these findings, the trial courtawarded Doe $600,000 in actual damages and $300,000 in punitive damages.

On appeal, defendants argue first that Doe's counsel, JoeDee Favre, should have beendisqualified. Defendants contend that from June 1996 through January 1998, attorney Favrerepresented defendants on numerous matters relating to Dr. Chand's suspension of privilegesat numerous hospitals for inadequate record-keeping, complaints brought by the IllinoisDepartment of Professional Regulation regarding Dr. Chand's license and record-keeping,a social security matter involving an order of protection with a former patient, and a medicalmalpractice matter. Defendants maintain that during this time, attorney Favre was providedwith unrestricted access to defendant's private office and that defendants' employees providedattorney Favre with patient records. Because of the prior representation, defendants argue,attorney Favre had valuable insight into the policies and procedures of defendants' office,including the manner in which records were maintained, which is the subject matter ofseveral of the allegations made by Doe.

The determination of whether counsel should be disqualified is directed to the sounddiscretion of the trial court and will not be disturbed on appeal absent an abuse of thatdiscretion. Franzoni v. Hart Schaffner & Marx, 312 Ill. App. 3d 394, 726 N.E.2d 810(2000). An abuse of discretion occurs when no reasonable person would agree with theposition adopted by the trial court. Gerber v. Hamilton, 276 Ill. App. 3d 1091, 659 N.E.2d443 (1995). Where the question on appeal involves the resolution of factual issues, the trialcourt's determinations will not be disturbed unless they are unsupported by the evidence inthe record. International Insurance Co. v. City of Chicago Heights, 268 Ill. App. 3d 289, 643N.E.2d 1305 (1994).

Rule 1.9 of the Illinois Rules of Professional Conduct, which defines the scope of anattorney's obligation to refrain from representing a person with interests that are materiallyadverse to the interest of a former client, provides:

"(a) A lawyer who has formerly represented a client in a matter shall notthereafter:

(1) represent another person in the same or a substantially related matterin which that person's interests are materially adverse to the interests of theformer client, unless the former client consents after disclosure; or

(2) use information relating to the representation to the disadvantage ofthe former client, unless:

(A) such use is permitted by Rule 1.6; or

(B) the information has become generally known." 134 Ill. 2dR. 1.9.

In Schwartz v. Cortelloni, 177 Ill. 2d 166, 685 N.E.2d 871 (1997), our supreme courtheld:

"Under Rule 1.9 *** an attorney's subsequent representation of a person with interestsadverse to a former client is prohibited only if the matters involved in the tworepresentations are the same or substantially related. [Citations.] The party seekingdisqualification bears the burden of establishing that the present and formerrepresentations are substantially related. [Citation.] If a substantial relationshipbetween the two matters is not shown, then no breach of the duty of confidentialitywill be found. [Citation.]

Attorney disqualification is a drastic measure because it destroys the attorney-client relationship by prohibiting a party from representation by counsel of his or herchoosing. [Citation.] Thus, caution must be exercised to guard against motions todisqualify being used as tools for harassment." Schwartz, 177 Ill. 2d at 177-78, 685N.E.2d at 877.

In determining whether a substantial relationship exists between two representations,a careful examination of the factual context of the judgment matters of both representationsis necessary in order to determine whether disqualification is required. See Hannan v. Watt,147 Ill. App. 3d 456, 497 N.E.2d 1307 (1986). In Schwartz, our supreme court adopted thethree-step analysis set forth in La Salle National Bank v. County of Lake, 703 F.2d 252 (7thCir. 1983), for making such determination. Under the La Salle inquiry, the court must firstmake a factual reconstruction of the scope of the former representation. It must thendetermine whether it is reasonable to infer that the confidential information allegedly givenwould have been given to a lawyer representing a client on those matters. Finally, the courtmust consider whether the information is relevant to the issues raised in the litigation pendingagainst the former client. Schwartz, 177 Ill. 2d at 178, 685 N.E.2d at 877 (citing La Salle,703 F.2d at 256).

In the present case, defendants filed a motion to disqualify attorney Favre, arguing thatthrough her prior representation of Dr. Chand, she learned confidential information,including: (1) Dr. Chand's dealing with the National Practitioner Databank, (2) informationfrom current and former employees concerning Doe and Doe's witnesses, (3) the manner inwhich Dr. Chand tested patients for HIV or AIDS and informed them of the results, and (4)Dr. Chand's dealings with various hospitals concerning staff privileges and her record-keeping. Both parties submitted affidavits. In her affidavit in support of the motion todisqualify, Dr. Chand averred that Favre visited her office frequently, visiting both her andher staff. Dr. Chand further averred that as a result, Favre had the opportunity to observehow laboratory results were delivered and placed in patient records. Dr. Chand also madethat statement because through her representation Favre became familiar with how Dr.Chand's office maintained records and confidential patient information. In her affidavit,attorney Favre disputed the frequency with which she visited Dr. Chand's office and deniedseeing or having any knowledge of how test results were handled or how patients were testedfor HIV or AIDS or how they were informed of the results.

Reviewing the record, we cannot say that the trial court abused its discretion indenying the motion to disqualify. Defendants offer only the vaguest allegations that attorneyFavre obtained confidential information relevant to the current litigation, and they offer nospecifics as to the nature of this confidential information or how it is relevant to the currentlitigation. Defendants contend that attorney Favre was in a position to see how Dr. Chandmaintained her records and received and reported test results. Favre denied these allegations,however, and the trial court apparently found her more credible on this issue. In any event,such generalized allegations are wholly insufficient to meet the defendants' burden ofdemonstrating a substantial relationship between the current and former representations orto justify the drastic step of disqualifying Doe's chosen counsel.

Defendants argue next that they were entitled to a trial by jury. Defendants maintainthat the essence of Doe's complaint is that the defendants improperly disclosed that Doe hadtested positive for HIV and that she suffered from AIDS, that such disclosures were false,and that defendants tested Doe for HIV without obtaining her informed consent. Defendantscontend that Doe could have sought relief for each of these claims through the common lawcauses of action for breach of contract, invasion of privacy, false light, or the tort of outrage,each of which Doe included her original complaint. Defendants maintain that the Act did notcreate any new causes of action but that it merely codified existing causes of action and setforth requirements for a written informed consent. We do not agree.

In Illinois, the right to a trial by jury "only attaches in those actions where such rightexisted under the English common law at the time the constitution was adopted." Martin v.Heinold Commodities, Inc., 163 Ill. 2d 33, 73-74, 643 N.E.2d 734, 753 (1994). The test ofwhether or not the right to a jury trial exists in a given case depends on the nature of thecontroversy rather than the form of the action. Flaherty v. Murphy, 291 Ill. 595, 126 N.E.533 (1920).

Section 13 of the Act (410 ILCS 305/13 (West 1998)) provides for a right of actionfor any violation of the Act itself or for a violation of any regulation promulgated by theDepartment of Public Health pursuant to section 16 thereof (410 ILCS 305/16 (West 1998)). There are numerous provisions of the Act the violation of which gives rise to no cause ofaction at common law. For example, section 5 of the Act provides that no physician mayorder an HIV test without making available to the person being tested information about themeaning of the test results, the availability of additional testing, and the availability ofreferrals for future information or counseling. 410 ILCS 305/5 (West 1998). No action forfailure to provide such information exists at common law. Section 9 of the Act bars, withfew exceptions, any person from disclosing the identity of anyone who has submitted to anHIV test, or the results thereof. 410 ILCS 305/9 (West 1998). No such broad right exists atcommon law for a person submitting to an HIV test. Section 10 provides that no person towhom test results have been disclosed may disclose the test results to another person, exceptas authorized by section 9. 410 ILCS 305/10 (West 1998). Section 6 requires that writteninformed consent be provided by using a coded system which does not link the identity ofthe individual with the test result. 410 ILCS 305/6 (West 1998). There is no requirementat common law that such a system be used to give informed consent. Moreover, section 3(d)of the Act provides:

" 'Written informed consent' means an agreement in writing executed by thesubject of a test or the subject's legally authorized representative without undueinducement or any element of force, fraud, deceit, duress or other form of constraintor coercion, which entails at least the following:

(1) a fair explanation of the test, including its purpose, potential uses,limitations and the meaning of its results; and

(2) a fair explanation of the procedures to be followed, including the voluntarynature of the test, the right to withdraw consent to the testing process at any time, theright to anonymity to the extent provided by law with respect to participation in thetest and disclosure of test results, and the right to confidential treatment ofinformation identifying the subject of the test and the results of the test, to the extentprovided by law." 410 ILCS 305/3(d) (West 1998).

In a common law action based upon failure to obtain informed consent, "informed consent" means consent obtained from a patient by a health care provider after the disclosure by suchprovider of those factors which a reasonably well-qualified provider would disclose underthe same or similar circumstances. See Illinois Pattern Jury Instructions, Civil, No.105.07.01 (3d ed. 1990). The requirement for obtaining informed consent under the Act isboth more comprehensive and more specific. Finally, in section 2(2) our legislature found,as one of its reasons for enacting the Act, that "[d]espite existing laws, regulations[,] andprofessional standards which require or promote the informed, voluntary[,] and confidentialuse of tests designed to reveal HIV infection, many members of the public are deterred fromseeking such testing because they misunderstand the nature of the test or fear that test resultswill be disclosed without their consent." 410 ILCS 305/2(2) (West 1998). Clearly, ourlegislature felt that additional protection was needed to ensure the confidentiality of HIVtesting. We conclude that in enacting the Act, our legislature created new rights for personswishing to obtain confidential HIV testing and a new cause of action unknown at commonlaw to protect those rights.

Defendants next argue that the trial court erred in awarding Doe punitive damages. Defendants contend that Doe was not entitled to punitive damages because the plainlanguage of the Act does not provide for an award of punitive damages.

Section 13 of the Act provides:

"Any person aggrieved by a violation of this Act or of a regulationpromulgated hereunder shall have a right of action in the circuit court and mayrecover for each violation:

(1) Against any person who negligently violates a provision of this Act or theregulations promulgated hereunder, liquidated damages of $1000 or actual damages,whichever is greater.

(2) Against any person who intentionally or recklessly violates a provision ofthis Act or the regulations promulgated hereunder, liquidated damages of $5000 oractual damages, whichever is greater.

(3) Reasonable attorney fees.

(4) Such other relief, including an injunction, as the court may deemappropriate." 410 ILCS 305/13 (West 1998).

It is well-settled that the cardinal rule of statutory construction is to ascertain and giveeffect to the intent of the legislature. American Standard Insurance Co. of Wisconsin v.Gnojewski, 319 Ill. App. 3d 970, 747 N.E.2d 367 (2001). The most reliable indicator oflegislative intent is the language of the statute, which is given its plain and ordinary meaning. First Bank & Trust Co. of O'Fallon v. King, 311 Ill. App. 3d 1053, 726 N.E.2d 621 (2000). Where the language of the statute is clear and unambiguous, the statute will be enforced aswritten and courts will not resort to other aids for construction. Goff v. Teachers' RetirementSystem, 305 Ill. App. 3d 190, 713 N.E.2d 578 (1999). When ascertaining legislative intentfrom the language of the statute, a court will examine the language of the statute as a whole,considering each part of section in connection with every other part or section. Monat v.County of Cook, 322 Ill. App. 3d 499, 750 N.E.2d 260 (2001).

Section 13 provides for liquidated or actual damages but does not specifically providefor punitive damages. It does, however, provide for "[s]uch other relief *** as the court maydeem appropriate." 410 ILCS 305/13 (West 1998). The question then becomes: Does "suchother relief" include punitive damages? We conclude that it does not. Punitive damages arewarranted where an otherwise negligent act is accompanied by outrageous conduct or actscommitted with malice or reckless indifference to the rights of others. McCann v.Presswood, 308 Ill. App. 3d 1068, 721 N.E.2d 811 (1999). Section 13 provides forliquidated damages of $1,000 for negligent violations and $5,000 where the violation isintentional or reckless. In other words, the statute specifically provides for increaseddamages where the disclosure is the result of conduct which typically warrants the impositionof punitive damages, but it does not provide for the imposition of punitive damages for suchdisclosures. Moreover, it is well-settled that punitive damages, because of their penal nature,are not favored is the law. Ainsworth v. Century Supply Co., 295 Ill. App. 3d 644, 693N.E.2d 510 (1998). We conclude that our legislature chose not to provide for the recoveryof punitive damages for violation of the Act.

Finally, defendants argue that the amount of actual damages awarded was improperbecause it was based upon evidence obtained as the result of a serious discovery violationand opinion testimony from a witness unqualified to provide such testimony. Defendantsalso argue that the amount of actual damages was excessive and contrary to the manifestweight of the evidence.

With respect to the discovery violation, defendants contend that at no time during thediscovery process did Doe reveal that she was being treated by Dr. Clay. Defendantsmaintain that because Doe was seeking to recover expenses related to her treatment formental anguish, any information Dr. Clay had regarding Doe's emotional condition wasrelevant to the issue of damages.

In written interrogatories propounded to Doe, defendants asked her to state whethershe had received any medical treatment from any physician or other health care provider forany medical, physical, or mental condition "referred to in any way in Plaintiff's FirstAmended Complaint," during the period "beginning ten years prior to the alleged improperdisclosures, and continuing up to the present," and to state the name and address of eachprovider, the date and nature of each treatment or service, and the cost thereof. In response,Doe identified Dr. Paul L'Ecuyer, Judy Murashige, and Wal-Mart Pharmacy. At trial, Doe'sattorney asked her whether she was "currently" being treated for depression and who hercurrent treating doctors were. Doe responded that her physicians were Drs. L'Ecuyer andClay.

Pursuant to Supreme Court Rule 213(i), a party has an ongoing duty to supplementor amend any prior answer or response to written interrogatories whenever new or additionalinformation subsequently becomes known to that party. 177 Ill. 2d R. 213(i). Thus, Doe hadan obligation to disclose the fact that she had begun treating with Dr. Clay and her failure todo so was technically a violation of Rule 213. We note, however, that Doe did not call Dr.Clay to testify at trial, nor did she seek to admit any evidence deposition or medical recordsof Dr. Clay. Furthermore, Doe did not seek reimbursement for any expenses related to Dr.Clay's treatment. Indeed, the only reference to Dr. Clay is Doe's testimony that she wascurrently treating with him. The standard for determining whether a trial court should granta mistrial as a sanction for a discovery violation is whether the violation is of such characterand magnitude as to deprive a party of a fair trial and the party seeking the mistrialdemonstrates actual prejudice as a result. Copeland v. Stebco Products Corp., 316 Ill. App.3d 932, 738 N.E.2d 199 (2000). No evidence regarding Dr. Clay's diagnosis, treatment, oropinion was introduced at trial; defendants therefore could not have and did not suffer anyprejudice as a result of Doe's failure to disclose the fact that she was being treated by Dr.Clay, and a new trial is not warranted.

Defendants also argue that the trial court erred in admitting the testimony of JudyMurashige, as an expert, into evidence. Defendants contend that Murashige was permittedto render opinion testimony that she was not qualified to provide. Specifically, defendantscontend that art therapists are not qualified to diagnose or treat medical or mental conditionsor to render an opinion to a reasonable degree of medical certainty, that Murashige was nota licensed art therapist, and that Murashige should not have been qualified as an expertbecause she did not utilize any objective standards but merely recited Doe's unsubstantiatedstatements.

Expert testimony is admissible if the proffered expert is qualified as an expert byknowledge, skill, expertise, training, or education and the testimony will assist the trier offact in understanding the evidence. Dotto v. Okan, 269 Ill. App. 3d 808, 646 N.E.2d 1277(1995). It is incumbent upon the party offering the witness to demonstrate that the witnesspossess the necessary learning, knowledge, skill, or practical experience to enable suchwitness to testify as an expert. Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 733N.E.2d 874 (2000). The determination of whether a witness is qualified to render an expertopinion and the decision to admit expert opinion testimony are matters that rest with thesound discretion of the trial court, and its ruling thereon will not be disturbed on appealabsent an abuse of discretion. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 724N.E.2d 115 (1999). An abuse of discretion occurs where the trial court acted arbitrarily andwithout the employment of conscientious judgment or, in view of all the surroundingcircumstances, exceeded the bounds of reason and ignored recognized principles of law, suchthat substantial prejudice resulted. May v. SmithKline Beecham Clinical Laboratories, Inc.,304 Ill. App. 3d 242, 710 N.E.2d 460 (1999).

Murashige testified that she was a registered art therapist. Murashige explained thatto become a registered art therapist, a person was required to have a master's degree andcomplete a period of clinical experience under the supervision of a registered art therapist. Murashige testified that she had a bachelor's degree in secondary education and a master'sdegree in adult education. After working as an academic adviser and counselor, shesubsequently enrolled in the art therapy program at Southern Illinois University atEdwardsville. Murashige stated that an art therapist was trained in all the psychologicalcourse work that a regular family therapist would have but also had an art background andwas taught to use art as a diagnostic tool. Although she did not have a master's degree in arttherapy, Murashige explained that she had completed all of the course work for a master'sdegree in art therapy and that, because she already had a master's degree, was not requiredto get a second master's degree in order to become an art therapist. She subsequently workedfor two years under the supervision of a registered art therapist. Murashige explained thatthere was no exam or licensing requirement in order to become a registered art therapist. Prior to treating Doe, Murashige had spent the previous eight years working at an HIVresource center, counseling people with HIV.

Given Murashige's educational background and experience in counseling HIVpatients, we cannot say that the trial court abused its discretion in admitting her testimony. Murashige had the required education and training to become a registered art therapist, andshe had eight years' experience in counseling HIV patients. Murashige did not diagnosedepression or any other psychological condition. She merely testified that she treated Doefor emotional problems related to Dr. Chand's disclosure of her HIV status and that Dr.Chand's disclosures caused or contributed to the condition for which Murashige providedtreatment.

Finally, defendants argue that the amount of actual damages was speculative andexcessive because there was no objective evidence to support it. They request a new trial onactual damages. A trial court's determination on damages will not be disturbed on reviewunless that determination is contrary to the manifest weight of the evidence. Lanterman v.Edwards, 294 Ill. App. 3d 350, 689 N.E.2d 1221 (1998). Reviewing the record as a whole,we conclude that the trial court's award of actual damages was contrary to the manifestweight of the evidence.

As noted above, section 13 of the Act provides that a person may recover liquidateddamages in the amount of $1,000 for negligent violations of the Act and $5,000 forintentional or reckless violations. Such amounts can be recovered without proof of damages. Our legislature further provided that a plaintiff could recover actual damages if such damagesexceeded the amounts provided for in section 13. 410 ILCS 305/13 (West 1998). In thepresent case, the trial court found that Doe had proved numerous violations of the Act, butthe court did not specify what these violations were, how many there were, or whichviolations were negligent and which were intentional or reckless. Moreover, Doe did notsubmit any evidence of or seek compensation for any medical bills, lost wages, or other out-of-pocket expenses. We conclude that the record simply does not support the finding thatDoe's actual damages were $600,000.

For the foregoing reasons, the judgment of the circuit court of St. Clair County isaffirmed with respect to its determination that Dr. Chand violated various provisions of theAct and with respect to the denial of defendant's motion for a jury trial. The award ofpunitive damages is reversed. The award of actual damages is vacated, and the causeremanded for a new trial on actual damages.

Affirmed in part, vacated in part, and reversed in part and cause remanded.

WELCH, J., concurs.

JUSTICE KUEHN, concurring in part and dissenting in part:

The legislature created the private right of action employed in this case for seriousreason. It wanted to promote voluntary testing for a deadly communicable disease. Thelegislature recognized that voluntary testing could lead to early discovery of infection andprevent that infection from being passed on to others by sexual activity known to transmitthe virus. This statute is primarily about protecting people and saving lives.

The legislature also recognized the social stigma that attaches to known carriers of thevirus. Despite the limited means of contaminating others and the ability to live a relativelylengthy and normal existence before the virus progresses into AIDS, people known to carryhuman immunodeficiency virus (HIV) are pariahs, treated only slightly better than howpeople used to treat a leper who escaped from the colony. Hence, legislators provided anessential statutory promise to promote voluntary testing. Anyone who procures a test isassured that its results will remain a secret between the patient and his or her medicalproviders.

The paramount public policy that underlies the remedial cause of action successfullypursued in this case directs us to the true injury targeted for remediation. By allowing forrecovery of actual damages in lieu of the statutorily fixed amount, our legislature sought toredress something more important than a medical bill or a lost wage, damages unlikely toflow from the disclosure of a medical test result. Actual damages were included tocompensate for the mental anguish caused by particularly egregious breaches of thelegislature's promise of confidentiality and to deter future breaches beyond the salutary effectthat a mere $5,000 penalty could provide. This conclusion is obvious, given the manner inwhich the legislature provided for other remedies under the Act. The punitive element of thecause of action is illuminated in the heightened fixed damages for intentional, as opposed tonegligent, violations of the Act's assurance.

The actual damages contemplated under this cause of action are akin to the highlysubjective damages that people are allowed to recover for the intentional infliction ofemotional distress. As the Illinois Supreme Court has recognized in refusing to allowpunitive damages for that tort, its compensatory element is essentially punitive in nature. Knierim v. Izzo, 22 Ill. 2d 73, 88, 174 N.E.2d 157, 165 (1961). This is why punitivedamages were not included in a statutory cause of action intended to provide a deterrenteffect. By understanding the legislature's purpose, we can better focus on two keycomponents of the actual damages in this case. The first is the emotional distress generatedby public disclosure that Jane Doe harbored the capacity to infect people with a frightfullydeadly, but misunderstood, disease. The second component measures the violator's conductfor the degree of its reprehensibility.

Because I did not observe Jane Doe's testimony, I feel uncomfortable trying tomeasure the depth of emotional distress that she suffered as a result of Dr. Chand'soutrageous conduct. The trial judge who observed her complaints was in a much betterposition to judge that. However, I am perfectly comfortable in measuring the outrageousnature of Dr. Chand's conduct for purposes of the punitive element of the actual damages thatJudge O'Malley awarded. I cannot imagine a physician, schooled in the generalconfidentiality of medical treatment, engaging in such egregious conduct.

We do not need to know how many times Dr. Chand violated the Act. Once isenough, but here there were numerous violations. The ones we know about shock the senses. They speak plainly to a physician run amok, not only leaking highly guarded medicalinformation, but actively engaged in an effort to ostracize her patient from other people. Moreover, she was doing so with false and defamatory information. Jane Doe did not haveAIDS. She merely tested positive for the HIV virus, a condition that could lead to the deadlysyndrome.

Submission of medical bills, wage losses, and the like should be of little import to ourreview of the damages awarded to Jane Doe. This case is all about betrayal-the betrayal ofa patient and the betrayal of professional duty and trust. We need to pause and consider howa person could ever inflict a deeper wound than the one inflicted in this case. In effect, Dr.Chand, in violation of the Act, told family, friends, and fellow patients that Jane Doe wasdying from a deadly disease. She also warned that being in her presence was a dangerousact. She suggested that Jane Doe should be completely avoided, as though AIDS could becontracted by airborne vapors. Dr. Chand actually pursued a course to effect isolation,labeling Jane Doe a social outcast. She had just as well condemned her patient to a lepercolony.

Given the circumstances of this case, I am not prepared to find that the award of actualdamages was against the manifest weight of the evidence. I concur in all other aspects of themajority opinion. While I agree that the legislature did not contemplate an award of punitivedamages, I reiterate that it clearly intended the actual damages to contain a punitive element.

Opinion Filed:  September 4, 2002

Justices: Honorable Philip J. Rarick, J.

Honorable Thomas M. Welch, J.,

Concurring

Honorable Clyde L. Kuehn, J.,

Concurring in part and dissenting in part

Attorneys Thomas J. Hayek, Behr, McCarter & Potter, P.C., 7777 Bonhomme Ave.,

for Suite 1810, St. Louis, MO 63105; Karen L. Kendall, Heyl, Royster,

Appellant Voelker & Allen, 124 S.W. Adams Street, Peoria, IL 61602

Attorneys Jodee Favre, Laura B. Allen, Favre & Allen, 121 East Main Street,

for Belleville, IL 62220

Appellee