Appellate Update

MacKenna v. Pantano, 2023 IL App (1st) 210486 (opinion filed May 10, 2023).

Appeal arose following the circuit court’s entry of a finding of contempt against plaintiff, executor of the Estate of Diana Ursitti, deceased, following plaintiff’s refusal to produce Ursitti’s unredacted medical records. ¶1. Ursitti was treated by defendants, before dying from lung cancer. ¶1.

Plaintiff alleged that defendants were negligent in timely diagnosing Ursitti’s lung cancer, which led to her death. ¶2, 5. During discovery, certain defendants indicated that they were going to testify regarding Ursitti’s mental health records at their depositions, to find out inter alia whether she had a history of depression memory lapses. ¶2, 5, 6. Plaintiff filed a motion for a protective order, contending that defendants were not permitted to rely on Ursitti’s mental health records because plaintiff’s claim did not concern Ursitti’s mental health. ¶2. The court granted in part and denied in part plaintiff’s motion, finding that defendant, Dr. Rao, could testify at his deposition based on his own Ursitti mental health records and those kept by his employer, defendant Elk Grove Medical Association. ¶2, 11. The court subsequently denied plaintiff’s motion to reconsider. ¶2, 13. Plaintiff refused to produce the unredacted mental health records and asked the court to find her in contempt and fine her $1 so that she could appeal the court’s ruling. ¶2, 15.

On appeal, plaintiff argued that the trial court erred in finding in her contempt and in ordering her to produce Ursitti’s unredacted medical records under section 10(a) of the Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 2018)). ¶3, 17. Plaintiff maintained that, under the Act, mental health records are privileged unless the plaintiff directly puts the records at issue or if the plaintiff affirmatively waives the protections of the Act. ¶3, 17. Plaintiff asserted that she did not put the records “at issue,” that the medical malpractice action did not concern Ursitti’s mental health and that she did not waive her rights under the Act. ¶3 ,8, 17. Plaintiff also argued that the trial court failed to make the necessary findings for the production of the medical records in its order, ignoring such factors as whether the production of the records would be unduly prejudicial or whether the disclosure was more important than protection from injury for Ursitti. ¶3.

The appellate court found the supreme court's ruling in Reda, 199 Ill. 2d 47 (2002) compelling. ¶29. In Reda, one of the plaintiffs was admitted to the hospital and underwent surgery for a knee replacement. Id. at 50. ¶29. The plaintiff developed acute thrombosis in his right leg and also suffered neurological damage. Id. at 50, 51, 58. ¶29. The plaintiff alleged that the defendant doctors failed to timely diagnose and treat his worsening condition. Id. at 50. ¶29. During discovery, defendants requested treatment records from the plaintiff's doctor. Id. at 51. ¶29. The doctor refused, [**17] explaining that the plaintiff had not authorized their release. Id. ¶29. The plaintiffs objected to the defendants' discovery request, citing the "mental-health-therapist-patient privilege" under the Act. Id. ¶29.

The supreme court in Reda found that the plaintiff had not introduced his mental condition as an element of his medical malpractice claim and, therefore, had not waived the statutory privilege under the Act. Id. at 58, 63. ¶30. The court found that the plaintiff did not place his mental condition at issue simply by alleging that he suffered neurological damage. Id. at 58. ¶30. The court cautioned that, if a defendant were permitted to directly implicate psychological [**18] damage in cases involving neurological injury, then "in every case in which the plaintiff claimed damages stemming from a physical injury to the brain, the door to discovery of the plaintiff's mental-health records would automatically open, and the limited exception in section 10(a)(1) of the Act would effectively eviscerate the privilege." Id. ¶30.

The appellate court applied same analysis as in Reda. ¶32. Here, plaintiff's claims did not concern Ursitti's mental health. ¶32. Plaintiff's claims were solely based on defendants' failure to timely diagnose Ursitti's lung cancer by, inter alia, failing to order chest X-rays and CT scans. ¶32. Because plaintiff's claims did not put Ursitti's mental condition "at issue," defendants were not permitted to disclose or testify to Ursitti's mental health records. ¶32. “As the supreme court explained in Reda, defendants cannot circumvent the protections of the Act by arguing that the mental health records are relevant to their defense.” Id. at 59. ¶32. “In essence, defendants may not put Ursitti's mental health "at issue" where plaintiff's claims do not do so.” ¶32. Any "unfairness" that would result to defendants by denying them access to Ursitti's mental health records, must give way to the privilege created by the Act. Id. ¶32.

The appellate court found that defendants did not make the necessary showing to bring Ursitti’s records within the narrow exceptions provided in either section 10(a)(2) or 10(a)(3) of the Act. ¶50. It found that the circumstances presented in this case did not present the “truly extraordinary circumstances” necessary to apply the fundamental fairness exception to the privileges of the Act. ¶48. However, the appellate court also held that if defendant can show that he was actually treating [**30] Ursitti for her mental health issues, and/or that somehow her mental health issues precluded him from ordering tests for lung cancer, then he may attempt to assert the exception to the privilege. ¶50. The appellate court found that there has been no showing of this to date. ¶50.

The appellate court found that the trial court erred in ordering plaintiff to produce Ursitti's unredacted mental health records and in finding that Dr. Rao, and his experts, could review and testify to those records. ¶50. Further, it reversed the contempt finding against plaintiff. See Reda, 199 Ill. 2d at 63 ("'where the trial court's discovery order is invalid, a contempt judgment for failure to comply with the discovery order must be reversed'" (quoting In re Marriage of Bonneau, 294 Ill. App. 3d 720, 723, 691 N.E.2d 123, 229 Ill. Dec. 187 (1998))). ¶50.

The appellate court reversed the judgment of the circuit court and remanded for further proceedings. ¶3, 52.

People v. I.M., 2023 IL App (2d) 220137-U (Order filed April 28, 2023) (The Order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).)

[*P2] The issue on appeal is whether the trial court erred in granting the State's motion to strike the petition of respondent, I.M., for a certificate of innocence which was filed pursuant to section 2-702 of the Code of Civil Procedure (Code) (735 ILCS 5/2-702 (West 2020)) as respondent's effort to pursue his claim of "wrongful confinement" in a mental institution.

[*P1] Held: Section 2-702 of the Code of Civil Procedure (735 ILCS 5/2-702 (West 2020)), which establishes the procedures by which one can file a petition for a certificate of innocence, is inapplicable to respondent's wrongful confinement claim because he was involuntarily admitted to a mental hospital and not convicted of a felony and imprisoned which is required by statute to seek a certificate of innocence; therefore, the trial court's decision to strike respondent's petition was proper.

Affirmed.

Andreas Liewald is a staff attorney with the Illinois Guardianship and Advocacy Commission, West Suburban (Hines) Office. He is also the 2023-24 secretary of the ISBA Mental Health Law Section Council.