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Docket No. 93299-Agenda 33-September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. THE 
DEPARTMENT OF PROFESSIONAL REGULATION, 
Appellant, v. THOMAS G. MANOS, D.D.S., and MARK
KOLOZENSKI, D.D.S., Appellees.

Opinion filed December 5, 2002.

JUSTICE FREEMAN delivered the opinion of the court:

Defendants, Drs. Thomas G. Manos and Mark Kolozenski,refused to produce two patient dental records and patientappointment schedules named in a subpoena duces tecum issuedby plaintiff, the Department of Professional Regulation (hereafterDepartment), pursuant to section 60d of the Civil AdministrativeCode of Illinois (20 ILCS 2105/60d (West 1998) (recodified as 20ILCS 2105/2105-105 (West 2000))). Upon granting theDepartment's motion for summary judgment, the circuit court ofCook County ordered defendants to produce the records requestedin the Department's subpoena duces tecum with the patient namesand any other identifying information redacted. On appeal, theappellate court affirmed in part, holding that defendants mustdisclose the patient appointment schedules with the names andaddresses of the patients identified therein. 326 Ill. App. 3d 698,708. However, the appellate court also reversed in part, holdingthat the Department could not compel defendants to produce therequested dental records since they were protected by thephysician-patient privilege (735 ILCS 5/8-802 (West 2000)). 326Ill. App. 3d at 709. We allowed the Department's petition forleave to appeal under Supreme Court Rule 315(a) (177 Ill. 2d R.315(a)). For the reasons that follow, we affirm the appellatecourt's judgment.

BACKGROUND

Defendants are board-certified and licensed dentists in theState of Illinois and each has a license to practice periodontics inthis state. On November 4, 1999, defendants received a subpoenaduces tecum from the Department requesting that they produce (1)the complete dental records-excluding X rays but includingpatient history, progress notes, anesthesthia records, claim forms,etc.-for the two patients named therein, and (2) the completeappointment schedules for the 22 days listed, including the names,addresses and phone numbers of the patients treated. Defendantsproduced all nonprivileged documents to the Department andwithheld only those documents containing confidential andprivileged patient treatment information.

On February 3, 2000, the Department filed a complaint in thecircuit court of Cook County to enforce its administrativesubpoena duces tecum. Among other things, the complaint statedthat defendants were the subjects of an administrativeinvestigation that was being conducted by the Department.Defendants waived service of summons and answered thecomplaint by asserting the physician-patient privilege as anaffirmative defense. Both parties thereafter moved for summaryjudgment pursuant to section 2-1005 of the Code of CivilProcedure (735 ILCS 5/2-1005 (West 2000)).

On July 31, 2000, the circuit court conducted a hearing on theDepartment's motion for summary judgment. After hearingarguments from both parties, the circuit court granted theDepartment's motion for summary judgment and ordereddefendants to produce the records requested in the Department'ssubpoena duces tecum with the patient names and any otheridentifying information removed.

On appeal, the appellate court found that dentists are surgeonsand, accordingly, the physician-patient privilege held by patientsis applicable to them. 326 Ill. App. 3d at 707. Therefore, theappellate court held that the Department could not compeldefendants to produce the confidential information contained inthe dental records of patients. 326 Ill. App. 3d at 709. In addition,the appellate court found that the information contained in theappointment schedules was not protected by any privilege. 326 Ill.App. 3d at 708. Thus, the appellate court ordered defendants toproduce the appointment schedules for the dates listed in theDepartment's subpoena with the names, addresses and phonenumbers of the patients treated. 326 Ill. App. 3d at 708.

ANALYSIS

Neither party disputes the appellate court's judgmentaffirming the circuit court's ordering of defendants to produce theappointment schedules for the dates listed in the Department'ssubpoena duces tecum with the names, addresses and phonenumbers of the patients treated. Therefore, the sole issue beforethis court is whether the Department can compel defendants toproduce the confidential material contained in their patientrecords. The question is one of statutory interpretation and, assuch, our standard of review is de novo. People v. Rivera, 198 Ill.2d 364 (2001).

The Department initially maintains that the broadinvestigatory powers bestowed upon it by the General Assemblyin the Civil Administrative Code of Illinois (20 ILCS 2105/2105-1et seq. (West 2000)) prevail over any assertion of the physician-patient privilege that a subject of an investigation might raise.Stated differently, it is the Department's position that thephysician-patient privilege has no applicability during the courseof an investigation. This is so, the Department argues, because theIllinois Dental Practice Act (225 ILCS 25/1 (West 2000)) and theCivil Administrative Code empower the Department, in the courseof an investigation, to compel the production of any books, papers,records, or any other documents which the agency deems relevantor material to any such investigation at any time. We cannot agree.

We first note that the legislature did not expressly state in theCivil Administrative Code that the investigatory powers given tothe Department override the physician-patient privilege whichexists in Illinois. That privilege, which was codified by theGeneral Assembly in section 8-802 of the Code of Civil Procedure(see 735 ILCS 5/8-802 (West 1994)⁽¹⁾), stands as a testament to thelegislature's recognition of a patient's interest in maintainingconfidentiality in his or her medical dealings with his or herhealth-care provider. However, the privilege is not limitless, andthe General Assembly has specifically delineated 10 exceptions inwhich the privilege may yield. See 735 ILCS 5/8-802 (West2000). None of the exceptions, however, refer to the investigatorypowers of the Department. To hold as the Department suggestswould force this court to read a provision into the CivilAdministrative Code that is not there and to read an exception intothe physician-patient privilege statute that also is not there. Thiswe are not prepared to do because " '[t]he only legitimate functionof the courts is to declare and enforce the law as enacted by thelegislature, to interpret the language used by the legislature whereit requires interpretation, and not to annex new provisions orsubstitute different ones, or read into a statute exceptions,limitations, or conditions which depart from its plain meaning.' "Bronson v. Washington National Insurance Co., 59 Ill. App. 2d253, 261-62 (1965), quoting Belfield v. Coop, 8 Ill. 2d 293, 307(1956).

Our conclusion in this regard is in keeping with this court'shistory in upholding the viability of the privilege against the broadpowers of an investigatory authority. In People v. Bickham, 89 Ill.2d 1 (1982), a grand jury issued two subpoenas duces tecum to adoctor for the medical records of 63 patients. Bickham, 89 Ill. 2dat 2. One of the patients consented to the disclosure, but theconsent of the other patients was never secured. Bickham, 89 Ill.2d at 3-4. The circuit court ordered the doctor to turn over therecords, but he refused and was cited for contempt of court. Thematter ultimately reached this court. We noted that, contrary to theState's position, none of the exceptions to the physician-patientprivilege set forth in the statute applied to the facts of the case. Wetherefore held that except for the records released by the singlepatient, the remainder of the patient information requested fromthe grand jury was protected by the privilege. We so held despiteour acknowledgment of "the desirability in maintaining thebreadth of the grand jury's power to conduct investigationsregarding criminal violations." Bickham, 89 Ill. 2d at 5-6.

We note that a grand jury has extensive powers to subpoenawitnesses and obtain any documents relevant to any matter underinvestigation. 725 ILCS 5/112-4(b) (West 2000). Like theappellate court below, we believe that "[i]f, as in Bickham, thebroad power of the grand jury to investigate criminal violationsmust yield to the privacy concerns protected by the physician-patient privilege, then *** the investigatory powers of theDepartment must also yield." 326 Ill. App. 3d at 709. We,therefore, reject the Department's contention that its broadinvestigatory powers under the Civil Administrative Code ofIllinois and the Illinois Dental Practice Act prevail over thestatutorily enacted physician-patient privilege.

The Department next contends that even if the statutoryphysician-patient privilege is applicable to its investigations, theappellate court erred in holding that dentists fall within thestatute's ambit. In other words, the Department maintains that thephysician-patient privilege does not apply to dentists. Defendantsrespond that dentists are indeed surgeons and thus included underthe physician-patient privilege.

Whether a dentist falls within the purview of the physician-patient privilege is a matter of first impression in this state. Atcommon law, the communications between a doctor and a patientwere not privileged. Geisberger v. Willuhn, 72 Ill. App. 3d 435,436-37 (1979). Nevertheless, as alluded to in our discussionregarding the Department's broad investigatory powers, ourGeneral Assembly has statutorily protected from disclosure certaininformation obtained by a physician or surgeon in his professionalrelationship with a patient (735 ILCS 5/8-802 (West 1994)).Therefore, any questions regarding the privilege must be resolvedby interpreting section 8-802, which states in pertinent part:

"No physician or surgeon shall be permitted to discloseany information he or she may have acquired in attendingany patient in a professional character, necessary to enablehim or her professionally to serve the patient ***." 735ILCS 5/8-802 (West 1994).

In interpreting the statute, our primary goal is to ascertain and giveeffect to the intention of the legislature. People v. Woodard, 175Ill. 2d 435, 443 (1997). This inquiry appropriately begins with thelanguage of the statute (Woodard, 175 Ill. 2d at 443), as thelanguage used by the legislature is the best indication of legislativeintent (Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996)). "Toaccomplish this goal, words used in the statutory provision shouldbe given their plain and ordinary meaning." People v. Hicks, 164Ill. 2d 218, 222 (1995). Where the words themselves areunambiguous, there is no need to resort to external aids ofinterpretation. Hicks, 164 Ill. 2d at 222. However, when thelanguage used is susceptible to more than one equally reasonableinterpretation, the court may look to additional sources todetermine the legislature's intent. Hicks, 164 Ill. 2d at 222.

The parties disagree as to whether dentists are physicians, butthe primary focus of both parties centers around whether dentistsare surgeons. With respect to both contentions, the parties cite tocases outside of Illinois as support for their respective positions.However, we believe that our resolution of these questions bestrests with a review of the language used by the General Assemblyin other legislative acts which address the medical and dentalprofessions.

Under the Illinois Medical Practice Act of 1987, thelegislature defines a physician to be "a person licensed under theMedical Practice Act to practice medicine in all of its branches ora chiropractic physician licensed to treat human ailments withoutthe use of drugs and without operative surgery." 225 ILCS 60/2(West 2000). In order to practice dentistry in the State of Illinois,one must be licensed to do so under the Illinois Dental PracticeAct (225 ILCS 25/8 (West 2000) ("[n]o person shall practicedentistry without first applying for and obtaining a license for suchpurpose from the Department")). The legislature defines a dentistas "a person who has received a general license pursuant toparagraph (a) of Section 11 of this [Illinois Dental Practice] Actand who may perform any intraoral and extraoral procedurerequired in the practice of dentistry and to whom is reserved theresponsibilities specified in Section 17." 225 ILCS 25/4(d) (West2002). In this case, defendants are only licensed under the IllinoisDental Practice Act to practice dentistry; therefore, it is clear thatthey are not considered "physicians" according to the legislature'sown definition. Accordingly, dentists are not physicians forpurposes of the physician-patient privilege. Therefore, we mustdetermine whether dentists are surgeons.

Since the legislature does not provide us with a definition of"surgeon" within the statutes, we look to other sources for its plainand ordinary meaning. A surgeon is defined as "a medicalspecialist who performs surgery." Webster's Third NewInternational Dictionary 2300 (1993). Surgery is defined as "abranch of medicine that is concerned with diseases and conditionsrequiring or amenable to operative or manual procedures."Webster's Third New International Dictionary 2301 (1993). Asalluded to above in the legislature's definition of a dentist underthe Illinois Dental Practice Act, section 17, "Acts Constituting thePractice of Dentistry," states:

"A person practices dentistry, within the meaning ofthis Act:

(1) Who represents himself as being able to diagnose ordiagnoses, treats, prescribes, or operates for any disease,pain, deformity, deficiency, injury, or physical conditionof the human tooth, teeth, alveolar process, gums or jaw;or

***

(3) Who performs dental operations of any kind[.]"(Emphases added.) 225 ILCS 25/17(1), (3) (West 2000).

The definition of the word "operate" is "to perform surgery."Webster's Third New International Dictionary 1580 (1993). Giventhe above plain and ordinary meanings of the key operative wordsat issue in this case, and section 17 of the Illinois Dental PracticeAct, we find it difficult to make any other conclusion but thatdentists are indeed surgeons.

A review of the historical underpinnings of our dental practicestatute strengthens our conclusion. The first known dental act toexist in Illinois was established in 1881 and was entitled "An Actto insure the better education of Practitioners of Dental Surgery,and to regulate the practice of Dentistry in the State of Illinois."(Emphasis added.) Ill. Rev. Stat. 1881, ch. 38a, par. 33 et seq.

In 1905, the General Assembly repealed the 1881 Act andreplaced it with a new dental Act. In this 1905 dental act, thelegislature provided the State of Illinois with its first definition ofthe practice of dentistry:

"Any person shall be regarded as practicing dentistry ordental surgery within the meaning of this act, who shalltreat, or profess to treat any of the diseases or lesions ofhuman teeth or jaws or extract teeth or shall prepare andfill cavities in human teeth or correct the malposition ofteeth or supply artificial teeth as substitutes for naturalteeth: *** This act shall not prevent students fromperforming dental operations ***." (Emphases added.)Ill. Rev. Stat. 1905, ch. 91, par. 39.

The General Assembly amended the dental surgery act in1929 and expanded the definition of dentistry and its practitioners.The definition-of-dentistry provision was amended to provide thefollowing:

"A person practices dentistry or dental surgery, withinthe meaning of this Act, who represents himself as beingable to diagnose, treat, remove stains and concretionsfrom teeth, operate or prescribe for any disease, pain,injury, deficience, deformity or physical condition of thehuman teeth, alveolar process, gums or jaw ***."(Emphases added.) Ill. Rev. Stat. 1929, ch. 91, par. 60.

Public Act 84-365, effective January 1, 1986, repealedIllinois' 1909 dental act and replaced it with an act titled "TheIllinois Dental Practice Act," which was "[a]n Act to regulate thepractice of dentistry in the State of Illinois ***." Ill. Rev. Stat.1985, ch. 111, pars. 2301 through 2357. Lastly, in 1992, with theGeneral Assembly's codification of this state's statutes as theIllinois Compiled Statutes, the statute was codified under chapter225, "Professions and Occupations." See 225 ILCS 25/1 et seq.(West 1992). This remains the operative act to date.

The foregoing lengthy excursion into the historicalbackground of dental practice in this state serves to underscore thefact that our legislature has viewed surgery to be part and parcel ofa dentist's professional responsibilities. This is evidenced not onlyby the titling of the act itself as "Dental Surgery" (1885 through1977) and the use of key words such as "dental surgery" and"dental operations," but through the evolution and expansion ofthe acts that constituted the practice of dentistry with the additionof the term "operate" in 1929. It should be noted that the term"operate" has never left Illinois' dental act statutes since 1929.Thus, the historical legislation of our dental practice statutesupports the conclusion that dentists are surgeons within themeaning of the physician-patient privilege. Accordingly, weconclude that dentists are surgeons and, as such, informationacquired by dentists in attending any patient in a professionalcharacter, necessary to enable dentists to professionally serve thepatient, are confidential for purposes of the physician-patientprivilege (735 ILCS 5/8-802 (West 1994)).

Having concluded that dentists fall within the ambit of thestatutory privilege, we must next determine whether operation ofthe privilege protects the information requested by the Departmentin this case. Defendants maintain that the privilege prevents themfrom producing confidential patient records unless one of theexceptions listed in the physician-patient privilege applies and, inthis case, defendants argue that none of the exceptions areapplicable. We agree.

The exceptions outlined in the physician-patient privilege areas follows:

"except only (1) in trials for homicide when thedisclosure relates directly to the fact or immediatecircumstances of the homicide, (2) in actions, civil orcriminal, against the physician for malpractice, (3) withthe expressed consent of the patient, or in case of his orher death or disability, of his or her personalrepresentative or other person authorized to sue forpersonal injury or of the beneficiary of an insurancepolicy on his or her life, health, or physical condition, (4)in all actions brought by or against the patient, his or herpersonal representative, a beneficiary under a policy ofinsurance, or the executor or administrator of his or herestate wherein the patient's physical or mental conditionis an issue, (5) upon an issue as to the validity of adocument as a will of the patient, (6) in any criminalaction where the charge is either first degree murder byabortion, attempted abortion or abortion, (7) in actions,civil or criminal, arising from the filing of a report incompliance with the Abused and Neglected ChildReporting Act, (8) to any department, agency, institutionor facility which has custody of the patient pursuant toState statute or any court order of commitment, (9) inprosecutions where written results of blood alcohol testsare admissible pursuant to Section 11-501.4 of the IllinoisVehicle Code or (10) in prosecutions where writtenresults of blood alcohol tests are admissible under Section5-11a of the Boat Registration and Safety Act." 735 ILCS5/8-802 (West 1994).

The primary purpose of the physician-patient privilege is toencourage free disclosure between a doctor and a patient and toprotect the patient from embarrassment and invasion of privacythat disclosure would entail. See LoCoco v. XL Disposal Corp.,307 Ill. App. 3d 684, 689 (1999), citing People v. Herbert, 108 Ill.App. 3d 143, 149 (1982). The physician-patient privilege is one oftrust and confidence in which the patient knowingly seeks thedoctor's assistance and the doctor knowingly accepts the person asa patient. See XL Disposal Corp., 307 Ill. App. 3d at 689, quotingReynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80, 85(1996). The legislature has recognized the patient's interest inmaintaining confidentiality in his or her dealings with a physicianor surgeon by enacting the physician-patient privilege in section8-802. Bickham, 89 Ill. 2d at 6. As with other statutory privileges,the physician-patient privilege is a legislative balancing betweenrelationships that society feels should be fostered through theshield of confidentiality and the interests served by disclosure ofthe information. See Parkson v. Central DuPage Hospital, 105 Ill.App. 3d 850, 854 (1982). Lastly, the physician-patient privilege isfor the benefit of the patient and is not to be used as a shield bydoctors. Bickham, 89 Ill. 2d at 6.

In the present case, the Department alleges in its verifiedcomplaint that defendants are the subjects of an administrativeinvestigation that was being conducted by the Department. Infurtherance of this investigation, the Department requested thecomplete dental records of the two patients named in its subpoenaduces tecum. While defendants complied with the subpoena ducestecum by producing all nonconfidential documents, they refusedto furnish any portions of the patients' records obtained in aprofessional manner in order to treat their patients. Becausedentists are surgeons, we agree with our appellate court that theDepartment cannot compel the production of confidential patientdental records absent a showing that one of the 10 statutoryexceptions applies (735 ILCS 5/8-802 (West 1994)). 326 Ill. App.3d at 708. As we noted in our earlier discussion regarding theDepartment's contention that the privilege did not apply toDepartment investigations, our General Assembly created thephysician-patient privilege for the benefit of patients. To helpguard this benefit, the legislature established a limited number ofcircumstances in which physicians and surgeons are allowed toproduce confidential patient record information. Courts must applythese existing exceptions and cannot create additional exceptionsto the privilege. See Bickham, 89 Ill. 2d at 6; see also People exrel. Birkett v. City of Chicago, 184 Ill. 2d 521, 528 (1998) ("thiscourt has repeatedly concluded that the extension of an existingprivilege or establishment of a new one is a matter best deferredto the legislature"). As we noted previously, investigationsconducted by the Department are not listed as an exception underthe physician-patient privilege to compel physicians and surgeonsto produce confidential patient records. If we were to concede tothe Department's request in this case, we not only would becreating another exception to the privilege, but would cause theprivilege to be mute in its purpose. Accordingly, we conclude thatthe physician-patient privilege enacted by our legislature preventsdefendants in this case from producing any confidential patientdental records as requested in the Department's subpoena ducestecum.

The Department next argues that deleting the patient namesand identifying information from the records removes the recordsfrom protection under the physician-patient privilege. TheDepartment contends that this approach safeguards the privacyconcerns of the patients that lie at the heart of the privilege whileallowing the Department to discharge its investigatory duty underthe Civil Administrative Code.

We find our appellate court's decision in Parkson v. CentralDuPage Hospital, 105 Ill. App. 3d 850 (1982), to be helpful inaddressing the Department's contention. In Parkson, theDepartment sought specific medical information concerningnonparty patients. Parkson, 105 Ill. App. 3d at 855. In response tothe Department's assertion that the physician-patient privilegewould not be violated by excluding the names and identifyingnumbers from the patient records, the appellate court stated:

"Whether the patients' identities would remainconfidential by the exclusion of their names andidentifying numbers is questionable at best. The patients'admit and discharge summaries arguably contain historiesof the patients' prior and present medical conditions,information that in the cumulative can make thepossibility of recognition very high. [Citation.] As thepatients disclosed this information with an expectation ofprivacy, their rights to confidentiality should beprotected." Parkson, 105 Ill. App. 3d at 855.

The appellate court also rejected the Department's request torequire the production of the patient records through the entry ofa protective order, finding that the physician-patient privilegewould still be violated. Parkson, 105 Ill. App. 3d at 855.

We believe the rationale employed in Parkson to beapplicable to the present case. As in Parkson, the two namedpatients whose records were subpoenaed by the Department arenot parties to this case. In addition, we note that the Departmenthas the names of the two patients whose records it is seeking, asshown in its subpoena duces tecum. Therefore, even if the nameswere redacted along with any other identifying information, thepossibility of recognizing and equating a record to each patientwould not be difficult. Thus, we hold that merely deleting thepatient names and other identifying information from patientrecords would violate the physician-patient privilege.

CONCLUSION

For the foregoing reasons, the appellate court's judgment isaffirmed.

Affirmed.

1. ¹Public Act 89-7, which amended section 8-802, was heldunconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367, 378(1997). Therefore, the statutory language reverts to the preamendedlanguage as indicated in Public Act 87-803, section 2, effective July 1,1992.