Limits on Disclosure of Client Records After Resolution of the Case

Doe. v. Burke Wise Morrissey & Kaveny, LLC., 2022 IL App (1st) 211283, opinion filed October 7, 2022

Introduction

To protect the confidentiality of records and communications of people who receive mental health services, the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq.) (“Act”) authorizes disclosure of a client’s records and communications for limited purposes, including that of medical malpractice litigation.¹ However, once those purposes have concluded, releasing identifying details in the client’s records goes beyond the scope of authority under the Act. ²

In Doe v. Burke Wise Morrissey & Kaveny, LLC, the First District held that Doe established a viable claim against his attorneys, who represented him in a medical malpractice lawsuit, when they published identifying details of plaintiff’s mental health relevant to the medical practice suit in a press release and Law Bulletin article.³ The appellate court found that the details in the press release and Law Bulletin article contained “records” and “communications,” which are protected under the Act.⁴

Facts & Background

Defendant attorneys represented plaintiff, John Doe, in a medical malpractice action against a hospital and other medical staff.⁵ Plaintiff’s suit against the hospital contained allegations stemming from a suicide attempt while in the hospital’s care.⁶ Throughout the course of that litigation, a qualified protective order under the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Sec 1320d (2012)) (“HIPAA”) was entered, limiting the disclosure of plaintiff’s medical records.⁷ During his jury trial, plaintiff testified as to the state of his mental health and the resulting effects of his hospital stay.⁸ The jury awarded plaintiff $4 million in damages.⁹

After the trial, defendants published an article and issued a press release containing details of plaintiff’s medical malpractice suit, including plaintiff’s name, his diagnoses, his suicide attempt at the hospital that led to his injuries, and the effects of those injuries.¹⁰

Plaintiff subsequently filed a multi-count complaint against the defendants. In pertinent part count I alleged that, by releasing confidential information about plaintiff’s mental health and diagnoses without his informed consent, defendants violated both HIPAA and sections 5(d) and 10(a)(8) of the Act.¹¹ Defendants moved to dismiss count I under 735 ILCS 5/2-615, asserting that the Act did not apply to them because: 1) they did not have a therapeutic relationship with plaintiff, as required by the Act, 2) that the information disclosed in the press release was public information because of the public nature of the trial, and 3) that plaintiff waived the confidentiality of his records by placing his medical condition at issue in the medical malpractice litigation.¹²

Plaintiff’s response maintained that the Act prohibited the release of any information that would identify someone as a recipient of mental health services, such as the information disclosed in the press release and article.¹³ After a hearing on the motion, the trial court dismissed the count with prejudice, holding that a therapeutic relationship was required for the Act to apply, while also highlighting the public nature of the trial.¹⁴

Consequently, plaintiff filed an amended complaint and included new allegations for his claim under the Act.¹⁵ The court struck the claim without leave to replead.¹⁶ Plaintiff then filed a motion to reconsider the orders dismissing count I and striking the amended claim, asserting that defendants violated the HIPAA order that was entered in the medical malpractice case, which in turn violated the Act.¹⁷ After a hearing, the trial court denied plaintiff’s motion to reconsider.¹⁸

Plaintiff then filed a motion to voluntarily dismiss a remaining count in his complaint, and all the other counts had previously been dismissed with prejudice.¹⁹ The trial court dismissed the remaining count without prejudice, and plaintiff appealed.²⁰

Appellate Review

On appeal, the First District reversed the trial court’s order dismissing count I of the complaint, holding that plaintiff sufficiently alleged a claim against defendants under the Act.²¹ The appellate court further explained that the information disclosed in the press release and the article were “records” and “communications” as defined by the Act.²²

The appellate court observed that one of the main purposes of the Act is to protect the confidentiality of records and communications of people who receive mental health services.²³ The medical records defendants received in plaintiff’s medical malpractice case revealed mental health services plaintiff received, summarizations of his hospital stay, and his condition upon leaving the hospital.²⁴ Concerning defendants’ argument that there needed to exist a therapeutic relationship between them and plaintiff to be found liable under the Act, the First District found it irrelevant that defendants, themselves, did not provide those mental health services to plaintiff.²⁵ The appellate court found it was enough that defendants disclosed details identifying plaintiff as someone who sought mental health services.²⁶

To the extent that plaintiff consented to disclosing his mental health information to defendants for the medical malpractice litigation, the First District noted that Section 10(a)(1) of the Act provides an exception allowing for plaintiff’s medical records and communications to be disclosed in a “civil, criminal or administrative proceeding,” as an element of his claim or defense.²⁷ However, the exception did not extend to defendants’ disclosure of such information in the subsequent press release and article.²⁸ Such information included in the press release and article fell under section 5(d) of the Act, which provides that “[n]o person or agency to whom any information is disclosed under this Section may redisclose such information unless the person who consented to the disclosure specifically consents to such redisclosure. 740 ILCS 110/5(d).”²⁹

Defendants also asserted that any confidentiality protections plaintiff claimed were irrelevant due to his detailed testimony at his medical malpractice trial.³⁰ Under the Act, however, the appellate court noted that the information had restrictions on its use and plaintiff did not waive the Act’s protections simply by testifying.³¹ Consequently, defendants’ subsequent disclosure of plaintiff’s mental health history was found to extend beyond the scope of the medical malpractice trial.³² Plaintiff’s records and communications were created “in the course of addressing his mental health in the presence of physicians and nurses, who were ‘therapists’ under the Act.³³ Ultimately, the appellate court found that the plain language of the Act supported plaintiff’s complaint against his former attorneys for their disclosure of his confidential records and communications.³⁴

Conclusion

For attorneys handling client records, whether they are protected by legislation or are generally private in nature, Doe reminds us to take into account the fact that there are restrictions on (re)disclosure of case details beyond their resolutions. Particularly when a HIPAA qualified protective order has been entered or the Mental Health and Developmental Disabilities Confidentiality Act applies, the court in Doe stated that attorneys who redisclose a client’s protected records and communications, may be exposed to potential liability despite: 1) the lack of a therapeutic relationship between attorney and client,³⁵ 2) prior disclosure of the confidential medical information in an civil, criminal, or administrative proceeding,³⁶ or 3) the client’s testifying at trial in detail as to his mental health treatment.³⁷ Ultimately, it is important to pay close attention when dealing with protected records and communications and to always be able to point to statutory exceptions prior to disclosure.

Josephine Shane, a member of the Mental Health Section Council, practices law with Kelly & Castagna in Bloomington, IL. She can be contacted at www.kellyandcastagna.com.