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Docket No. 90487-Agenda 21-September 2001.

EMILIO REDA et al. (Susan Capra, Contemnor-Appellant), v. 
ADVOCATE HEALTH CARE et al., Appellees.

Opinion filed February 22, 2002.

JUSTICE FREEMAN delivered the opinion of the court:

During discovery in a medical malpractice action, the circuitcourt of Cook County twice ordered plaintiffs, Emilio and MaryReda, to disclose Emilio's psychiatric records to defendants,Advocate Health Care, formerly doing business as LutheranGeneral Hospital, Inc. (hospital); Dr. Theresa Cappello; and Dr.Melvin Katz. Plaintiffs' attorney, Susan Capra, refused, invokingthe mental health therapist-patient privilege under the MentalHealth and Developmental Disabilities Confidentiality Act (Act)(740 ILCS 110/1 et seq. (West 2000)). The court held Capra incivil contempt for refusing to comply with its discovery orders.

The appellate court, inter alia, upheld the disclosure ofEmilio's psychiatric records. 316 Ill. App. 3d 1115. We allowedCapra's petition for leave to appeal. 177 Ill. 2d R. 315(a). We nowreverse the appellate and circuit courts, and remand the cause tothe circuit court for further proceedings.

BACKGROUND

Plaintiffs' first amended complaint alleged as follows. OnJune 6, 1994, Emilio was admitted to the hospital, coming underits care and the care of Drs. Cappello and Katz, for the treatmentof arthritis in his right knee. That day, Dr. Katz performed a totalright knee arthroplasty, i.e., knee replacement. As a result of thesurgery, Emilio developed an acute thrombosis of the poplitealartery in his right leg. Defendants failed in several respects totimely diagnose and treat this worsening condition. As a proximateresult of defendants' negligence, Emilio "sustained injuries of apersonal and pecuniary nature." Emilio sought recovery for theseinjuries (count I), and as a result of Emilio's injuries, Mary soughtrecovery for the loss of Emilio's society, companionship, andaffection (count II). In their answers, defendants denied thatplaintiffs were injured as alleged.

In subsequent interrogatories, Dr. Katz and the hospital eachasked Emilio to specify his claimed injuries. Emilio answered eachinterrogatory as follows:

"I am not a medical doctor. Thus, I can only state what Ibelieve my problems are in laymen's terms. As a result ofthe occurrence, I suffered severe injuries to my leg (toesamputated and calf muscle removed) which have resultedin disability, disfigurement, pain and suffering. I alsosuffered a stroke, heart problems and kidney problems. Iwould refer you to the Lutheran General Hospital recordsfor details; Investigation continues."

We note that Emilio's hospital records were not included in therecord on appeal.

Plaintiffs filed their current complaint on December 17, 1996.During pretrial discovery, defendants requested from Dr. SamuelDeLisi Emilio's treatment records. Dr. DeLisi refused, explainingthat Emilio had not authorized their release. Plaintiffs objected todefendants' discovery request, invoking the mental-healththerapist-patient privilege. On November 14, 1997, defendantsCappello and the hospital moved to compel Emilio to authorizethe release of his psychiatric records from Dr. DeLisi.

On January 19, 1998, Emilio and Mary each testified at adiscovery deposition. During Emilio's deposition, attorneys fromboth sides agreed that questions regarding Dr. DeLisi's psychiatrictreatment of Emilio would be deferred pending resolution of themotion to compel. The record contains the following pertinentexcerpts from Emilio's deposition:

"Q. [Defense counsel] All right. My question related towhether any doctor told you that you had sustained anytype of stroke. *** Did someone tell you that or use thoseterms?

A. I don't know about if I sustained stroke damage, buthe said I had brain-he determined I had brain damage. Hegave me a puzzle to work out, 17 pieces. I couldn't putthe puzzle together. Then, he did a couple other tests.

And in more polite terms, he classified me one stepabove an idiot.

* * *

Q. Okay. At Lutheran General Hospital, did anyphysician or doctor tell you that you had a stroke, of anytype?

* * *

A. Not that I remember.

* * *

Q. And then, you've told us a little bit about yourheadaches. I want to ask you just a few more questionsabout that.

How frequently do you have headaches, nowadays, ingeneral? Is it like every day, every couple of days?

A. Sir, them headaches have not gone away. I hadDr.-the shrink, I kept accusing him-

MS. CAPRA: We're not going to talk about him.

THE WITNESS: Okay. I'm sorry."

During defense counsel's questioning of Emilio regarding hisheadaches, the following colloquy occurred:

"Q. *** When did you start having those headaches?

A. I can't remember how far back they were, if theywere there all the time. I don't remember, sir.

Q. Did you have any headaches like the ones you'vejust described for me before you went to Lutheran Generalfor your surgery?

A. No, sir. I never had-I wouldn't even take aspirins foranything. I didn't believe in any medication for the head.I never took nothing.

Q. Do you take anything for the headaches now?

A. I don't take them for the headaches. I take themmore for the heart and-I will not take medicine forheadaches, sir."

During Mary's deposition, defense counsel questioned herregarding, inter alia, Emilio's injuries. Answering their questions,Mary testified regarding Emilio's comprehension following thesurgery. She testified that Emilio was not able to perform manytasks, e.g., operating a shower faucet and cutting his food with aknife. Mary also testified that Emilio was "very emotional" and"very frustrated." Mary also referred to Emilio's lack of affectionsubsequent to the surgery. She testified: "He's-he can be verymean, extremely mean. And I'm always at fault. I make wrongdecisions, everything. It's a hard situation. Sometimes I want to gocrawl under the bed and stay there for ten days."

On February 20, 1998, the circuit court denied, withoutprejudice, the motion to compel production of Emilio's psychiatricrecords. The court did not have before it plaintiffs' depositiontestimony. On April 7, 1998, based on plaintiffs' depositions, Dr.Cappello and the hospital sought rehearing on their motion tocompel. On August 20, 1998, the circuit ordered plaintiffs tosubmit Emilio's psychiatric records to the court for an in camerainspection. On November 5, 1998, the court ordered plaintiffs todisclose Emilio's psychiatric records to defendants. On March 17,1999, the court denied plaintiffs' motion to vacate the disclosureorder and again ordered plaintiffs to disclose Emilio's psychiatricrecords to defendants.

On April 6, 1999, the circuit court held plaintiffs' attorney,Susan Capra, in civil contempt for refusing to comply with thecourt's discovery orders. The court fined Capra $100 plus $10 perday until Capra disclosed Emilio's psychiatric records todefendants.

The appellate court, with one justice dissenting, upheld thedisclosure of Emilio's psychiatric records. The court concludedthat, under the Act, Emilio had placed his mental condition atissue in this litigation. 316 Ill. App. 3d at 1118-19. Further, theappellate court upheld the circuit court's determination that theremaining statutory requirements for disclosure were met. 316 Ill.App. 3d at 1119. The appellate court also vacated the circuitcourt's order of contempt against Capra, finding that Capra wasnot contemptuous of the circuit court, but rather had subjectedherself to a contempt finding only to secure appellate review of thecircuit court's disclosure orders. 316 Ill. App. 3d at 1119.

The dissent concluded that Emilio had not placed his mentalcondition at issue in the medical malpractice action. Rather, thedissent opined, plaintiffs merely answered defense counsel'squestions during their depositions, and that their truthful answersdid not give rise to disclosure under the Act. 316 Ill. App. 3d at1119-20 (South, J., dissenting).

Capra appeals from the judgment of the appellate court. Wegranted the Illinois Trial Lawyers Association leave to submit anamicus curiae brief in support of plaintiffs. 155 Ill. 2d R. 345.

DISCUSSION

I. Scope and Standard of Review

Because discovery orders are not final orders, they are notordinarily appealable. Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001).Rather, they are reviewable on appeal from the final judgment.People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171 (1981).

However, it is well settled that a contempt proceeding is anappropriate method for testing the correctness of a discovery order.Norskog, 197 Ill. 2d at 69; People ex rel. General Motors Corp. v.Bua, 37 Ill. 2d 180, 189 (1967) (collecting cases); Lewis v. FamilyPlanning Management, Inc., 306 Ill. App. 3d 918, 922 (1999).When an individual appeals from a contempt sanction imposed forviolating, or threatening to violate, a discovery order, the contemptfinding is final and appealable and presents to the reviewing courtthe propriety of that discovery order. See Norskog, 197 Ill. 2d at69; Silverstein, 87 Ill. 2d at 171-72, 174.

Generally, a trial court's rulings on discovery matters will notbe disturbed on appeal absent a manifest abuse of discretion.However, the applicability of a statutory evidentiary privilege, andany exceptions thereto, are matters of law subject to de novoreview. Norskog, 197 Ill. 2d at 70-71; D.C. v. S.A., 178 Ill. 2d 551,559-60 (1997). In this case, the determination of whether Emiliointroduced his mental condition as an element of his claim, so asto waive the statutory mental-health therapist-patient privilege, isa matter of law subject to de novo review. However, the circuitcourt's secondary findings required under the Act are factualquestions subject to an abuse-of-discretion standard. D.C., 178 Ill.2d at 560.

II. The Mental-Health Therapist-Patient Privilege

In determining whether Emilio's psychiatric records areprivileged under the Act, it is first necessary to look at thelanguage of the Act itself. See Niven v. Siqueira, 109 Ill. 2d 357,365 (1985). The legislative intent of a statute is best determinedfrom the plain and ordinary meaning of the statutory language.Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 210, 216(1994); see, e.g., People v. Pawlaczyk, 189 Ill. 2d 177, 195 (2000).If the legislative intent is clear from the statutory language, thecourt must confine its inquiry to a consideration of that languageand must not look to extrinsic aids. People ex rel. Baker v. Cowlin,154 Ill. 2d 193, 197 (1992). Where the language is clear andunambiguous, we must apply it as written. Paris v. Feder, 179 Ill.2d 173, 177 (1997); see Sassali v. Rockford Memorial Hospital,296 Ill. App. 3d 80, 83 (1998). However, if the statutory languageis susceptible of more than one interpretation, the court may lookbeyond the language to consider the purposes of the statute. In reB.C., 176 Ill. 2d 536, 542-43 (1997); see Sisters of the Third Orderof St. Francis v. People ex rel. Barra, 151 Ill. App. 3d 875, 877-78(1987).

The Act provides: "All records and communications shall beconfidential and shall not be disclosed except as provided in thisAct." 740 ILCS 110/3(a) (West 2000). The records madeconfidential under the Act refer to "any record kept by a therapistor by an agency in the course of providing mental health ordevelopmental disabilities service to a recipient concerning therecipient and the services provided"; the communications madeconfidential under the Act refer to "any communication made bya recipient or other person to a therapist or to or in the presence ofother persons during or in connection with providing mental healthor developmental disability services to a recipient. Communicationincludes information which indicates that a person is a recipient";and " '[r]ecipient' means a person who is receiving or has receivedmental health or developmental disabilities services." 740 ILCS110/2 (West 2000).

Section 10(a) of the Act provides: "Except as provided herein,in any civil, criminal, administrative, or legislative proceeding ***a recipient, and a therapist on behalf and in the interest of arecipient, has the privilege to refuse to disclose and to prevent thedisclosure of the recipient's record or communications." 740 ILCS110/10(a) (West 2000). Section 10(a) then lists exceptions to thisevidentiary privilege. The first exception, which is at issue in thiscase, provides in pertinent part:

"(1) Records and communications may be disclosed ina civil, criminal or administrative proceeding in which therecipient introduces his mental condition or any aspect ofhis services received for such condition as an element ofhis claim or defense, if and only to the extent the court inwhich the proceedings have been brought *** finds, afterin camera examination of testimony or other evidence,that it is relevant, probative, not unduly prejudicial orinflammatory, and otherwise clearly admissible; that othersatisfactory evidence is demonstrably unsatisfactory asevidence of the facts sought to be established by suchevidence; and that disclosure is more important to theinterests of substantial justice than protection from injuryto the therapist-recipient relationship or to the recipient orother whom disclosure is likely to harm. *** [F]orpurposes of this Act, *** in any action in which pain andsuffering is an element of the claim, mental conditionshall not be deemed to be introduced merely by makingsuch claim and shall be deemed to be introduced only ifthe recipient or a witness on his behalf first testifiesconcerning the record or communication." 740 ILCS110/10(a)(1) (West 2000).

Thus, before the circuit court can order disclosure, it must find thatthe recipient has introduced his mental condition as an element ofhis claim or defense. The recipient does not introduce his mentalcondition merely by claiming pain and suffering. If the recipienthas not placed his mental health at issue, disclosure of the recordsor communications is not permitted. If the recipient has introducedhis mental condition, the court must conduct an in cameraexamination of the evidence to determine if it is, inter alia,relevant, probative, and not unduly prejudicial.

The appellate court held that Emilio had introduced his mentalcondition as an element of his claim. The court observed thatplaintiffs, in their depositions, testified regarding Emilio'sheadaches, loss of memory, decline in comprehension, difficultiesin performing daily activities, and changes in personality. Theappellate court reasoned:

"Plaintiffs contend that Emilio's marked changes inpersonality, loss of memory, deficits in comprehensionand difficulty performing routine tasks are neurologicalinjuries only. We, however, believe that these 'injuries'may be reasonably interpreted or characterized aspsychological traumas. Accordingly, we believe thattestimony given by plaintiffs regarding these 'injuries'placed Emilio's mental health at issue." 316 Ill. App. 3dat 1119.

Assigning error to the appellate court, Capra contends thatEmilio "suffered brain damage, which has produced manybehavioral consequences" and that he now is experiencing"physical limitations and the everyday frustrations that go alongwith them." Capra urges an interpretation of "mental condition,"as used in the Act, that excludes physical injuries. Agreeing withthe appellate court, defendants contend that Emilio's "cognitivedeficiencies" may have been "a manifestation of a mentalcondition completely unrelated to his medical treatment."Defendants urge an interpretation of "mental condition" thatincludes physical injuries with a psychological component.

We agree with Capra that Emilio had not introduced hismental condition as an element of his medical malpractice claim.Therefore, he has not waived the statutory privilege, anddisclosure of his psychiatric records is not permitted.

Emilio did not place his mental condition at issue merely byclaiming damages for what is a neurological injury, i.e., strokeand/or other brain damage. As the dissenting justice in theappellate court aptly noted: "A neurological injury is notsynonymous with psychological damage ***. Nor doesneurological injury directly implicate psychological damage." 316Ill. App. 3d at 1120 (South, J., dissenting). If that were true, inevery case in which the plaintiff claimed damages stemming froma physical injury to the brain, the door to discovery of theplaintiff's mental-health records would automatically open, andthe limited exception in section 10(a)(1) of the Act wouldeffectively eviscerate the privilege.

Our interpretation of section 10(a)(1) of the Act accords withearlier case law. Interpreting a predecessor statute, our appellatecourt held that a litigant claiming pain and suffering does not ipsofacto place his or her mental condition at issue. See Tylitzki v.Triple X Service, Inc., 126 Ill. App. 2d 144, 148-50 (1970); Webbv. Quincy City Lines, Inc., 73 Ill. App. 2d 405, 407-09 (1966). Thecourt in Webb found it difficult to conclude that one undergoingpain and suffering necessarily suffers deterioration in mentalcondition, and held that a mere allegation of pain and sufferingoriginating in physical trauma did not ipso facto result in "traumaaffecting the mentality." Webb, 73 Ill. App. 2d at 408. The courtrefused to "open a Pandora's box of inquiry into the mentalcondition of the claimant where it is not specifically made a partof the claim." Webb, 73 Ill. App. 2d at 409.

Even if, as defendants maintain, the psychiatric records havea bearing on causation, relevancy is not decisive of whether aplaintiff has introduced his mental condition as an element of hisclaim. D.C., 178 Ill. 2d at 566; see Tylitzki, 126 Ill. App. 2d at148-51 (rejecting argument that questioning of plaintiff'spsychiatrist was necessary to determine whether claim of pain andsuffering resulted from physical trauma sustained in the accidentor from some other cause). Although defendants might be deniedaccess to information that could benefit their case, any"unfairness" is the same that is present any time a privilege againstdisclosure is exercised. Evidentiary privileges, generally, " 'are notdesigned to promote the truth-seeking process, but rather to protectsome outside interest other than the ascertainment of truth attrial.' " Norskog, 197 Ill. 2d at 83, quoting D.C., 178 Ill. 2d at 561-62.

Moreover, it is not enough that defendants, under their theoryof the case, placed Emilio's mental condition at issue. Also, whileMary had her own case for loss of society, she could not placeEmilio's mental condition at issue in his case. To waive thestatutory privilege, the Act requires the "recipient" of mental-health services to introduce his or her mental condition. 740 ILCS110/10(a)(1) (West 2000); D.C., 178 Ill. 2d at 564-65; see Peoplev. Gemeny, 313 Ill. App. 3d 902, 911 (2000) (collecting cases)(section 10(a)(1) exception applies only when a party affirmativelyplaces his or her own mental condition at issue). The court inTylitzki, 126 Ill. App. 2d at 149, explained:

"[I]t is the affirmative aspect which should becontrolling. The privilege is too important to be brushedaside when the mental condition of the plaintiff may beonly peripherally involved. It is not difficult to considerthe many ways in which it could be argued that mentalconditions were at issue, and soon there would exist moreareas of inquiry deemed exceptions to the privilege thanthere would be areas of inquiry protected by theprivilege."

Our conclusion supports, and is supported by, the purpose ofthe Act. The Act represents a comprehensive revision and repealof previous statutes pertaining to psychotherapeuticcommunications. See Laurent v. Brelji, 74 Ill. App. 3d 214, 216(1979). When viewed as a whole, the Act constitutes a strongstatement by the General Assembly about the importance ofkeeping mental-health records confidential. Norskog, 197 Ill. 2dat 71-72. Confidentiality motivates persons to seek neededtreatment. Further, by encouraging complete candor betweenpatient and therapist, confidentiality is essential to the treatmentprocess itself. Norskog, 197 Ill. 2d at 72 (and cases cited therein).

The legislature carefully drafted the Act to maintain theconfidentiality of mental-health records except in the specificcircumstances explicitly enumerated. In each case wheredisclosure is allowed under the Act, the legislature has beencareful to restrict disclosure to that which is necessary toaccomplish a particular purpose. Exceptions to the Act arenarrowly crafted. Norskog, 197 Ill. 2d at 71. "Consequently,anyone seeking the nonconsensual release of mental healthinformation faces a formidable challenge and must show thatdisclosure is authorized by the Act." Norskog, 197 Ill. 2d at 72.

We note the suggestion of amicus that the determination ofwhether Emilio has placed his mental condition at issue should bebased solely on the allegations of the underlying complaint. Whilepertinent cases contain references to pleadings (see, e.g., D.C., 178Ill. 2d at 566; Tylitzki, 126 Ill. App. 2d at 151; Webb, 73 Ill. App.2d at 409), section 10(a)(1) of the Act does not contain such alimitation. In interpreting a statute, it is never proper for a court todepart from plain language by reading into a statute exceptions,limitations, or conditions which conflict with the clearly expressedlegislative intent. County of Knox ex rel. Masterson v. TheHighlands, L.L.C., 188 Ill. 2d 546, 556 (1999). A party mayintroduce his or her mental condition in several ways during thecourse of litigation, including, e.g., in the pleadings, answers towritten discovery, a deposition, in briefs or motions, in argumentbefore the court, or by stipulation. Based on the record before us,we hold that Emilio had not introduced his mental condition as anelement of his claim as required by section 10(a)(1) of the Act.

We lastly observe that the fundamental fairness exception tothe mental-health therapist-patient privilege (see D.C., 178 Ill. 2d551) does not apply here. In D.C., we agreed with the appellatecourt that the plaintiff had not introduced his mental condition intothe case within the meaning of section 10(a)(1) of the Act. D.C.,178 Ill. 2d at 566-67. However, this court held that "fundamentalfairness commands that the privilege yield." D.C., 178 Ill. 2d at568. We have explained this holding as follows:

"Underpinning this ruling was our refusal to place ourimprimatur on plaintiff's wielding the privilege as asword to manipulate the legal system, coupled with therecognition that, after in camera inspection, the trial courtrestricted discovery to information which met all otherrequirements of section 10(a)(1) of the Act and had littleto do with plaintiff's mental health treatment and more todo with plaintiff's conduct at the time of the accident.Furthermore, the information was obtainable from noother source and could, potentially, absolve defendants ofany liability and bar plaintiff's recovery. We concludedthat, on balance, the interests of substantial justice andfundamental fairness outweighed plaintiff's right to assertthe confidentiality privilege under the unique facts of thecase." Norskog, 197 Ill. 2d at 82, explaining D.C., 178 Ill.2d 551.

As in Norskog, the facts in this case are distinguishable fromthose in D.C. The record here does not show that plaintiffs areinvoking the mental-health therapist-patient privilege to exploit orsubvert the legal process. "Indeed, the confidentiality privilege isbeing employed precisely as intended-to shield information whichour legislature has seen fit to protect." Norskog, 197 Ill. 2d at 83.

Also, unlike D.C., information regarding Emilio's injuries isavailable from several additional sources. The record containsreferences to Emilio's medical records maintained by the hospitaland various physicians. Defendants may question and contest allopinions and conclusions contained therein. Specifically regardingEmilio's mental condition, defendants may have Emilio tested orexamined by a mental-health expert and present a defense basedon the expert's opinion. See 166 Ill. 2d R. 201(a); accord 4 R.Michael, Illinois Practice