{
  "id": 1576575,
  "name": "Joan L. Tylitzki, Plaintiff-Appellee, v. Triple X Service, Inc., a Corporation, and Richard E. Hebson, Defendants-Appellants",
  "name_abbreviation": "Tylitzki v. Triple X Service, Inc.",
  "decision_date": "1970-06-02",
  "docket_number": "Gen. No. 53,043",
  "first_page": "144",
  "last_page": "152",
  "citations": [
    {
      "type": "official",
      "cite": "126 Ill. App. 2d 144"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "250 NE2d 857",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1969,
      "opinion_index": 0
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      "cite": "25 NY2d 287",
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      "reporter": "N.Y.2d",
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      "year": 1969,
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      "cite": "252 NE2d 448",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1969,
      "opinion_index": 0
    },
    {
      "cite": "219 NE2d 165",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "73 Ill App2d 405",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        2583855
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      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/73/0405-01"
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    {
      "cite": "190 NE2d 488",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "41 Ill App2d 233",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        2452471
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/41/0233-01"
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  "last_updated": "2023-07-14T22:40:02.099510+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Joan L. Tylitzki, Plaintiff-Appellee, v. Triple X Service, Inc., a Corporation, and Richard E. Hebson, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE McCORMICK\ndelivered the opinion of the court.\nThis appeal is taken by Triple X Service, Inc. and Richard E. Hebson, defendants, from a judgment entered in the Circuit Court of Cook County in favor of Joan L. Tylitzki, plaintiff. After a jury trial on December 11, 1967, the court entered a judgment of $24,000 in favor of the plaintiff.\nOn October 23, 1962, the plaintiff was driving north in the east lane of Roselle Road in Hoffman Estates, approaching the intersection of Flagstaff Road, when her car collided with a truck driven by Richard E. Heb-son, and owned by Triple X Service, Inc. Flagstaff Road was then under construction about eighty feet from its intersection point with Roselle Road, and barricades erected about eight feet from the road caused trucks to have only nine feet in which to pull in and out. Defendant Hebson was attempting to back his truck into the nine-foot gap to get back to the construction area, and had to pull onto Roselle Road several times, blocking the road. While he was maneuvering his truck, the plaintiff was driving north on Roselle; she saw the truck and slowed down, but, according to her testimony and that of one of her passengers, the truck came right through a stop sign and collided with her car. Defendant Hebson testified that there was no stop sign; and there is also conflict in the testimony as to whether the truck was moving at all at the time of the incident.\nDuring the trial the court, at plaintiff\u2019s request, instructed the jury as follows:\nThere was in force in the State of Illinois at the time of the occurrence in question a certain statute which provides that:\nAll construction work upon bridges or highways within the State of Illinois shall be so performed and conducted that two-way traffic will be maintained when such is safe and practical, and when not safe and practical, or when any portion of the highway is obstructed, one-way traffic shall be maintained, unless the authorized agency in charge of said construction directs the road be closed to all traffic.\nIf you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.\nThe instruction should not have been given. It was objectionable on several grounds. The construction was on Flagstaff; the collision occurred on Roselle. The plaintiff maintains that Roselle was directly involved since trucks working at the construction site had to use Roselle to maneuver around to reach the project. We believe that a proper interpretation of the statute is that the legislature was attempting to reach a proper means of protecting the public traveling on the road which was itself the subject of the construction. Roselle was not such a road. The statute does not state that all arterial roads coming into the construction site shall be affected by the statute\u2019s directives; rather, it mentions \u201cthe highway,\u201d not all highways proximately related to the site.\nThe instruction informed the jury that if \u201ca party\u201d violated the statute that fact could be considered in determining whether or not such \u201ca party\u201d was negligent. This rather vague reference is confusing. Furthermore, plaintiff\u2019s complaint does not even allege that the defendants were the ones charged with control of the construction site, yet the statute quoted to the jury refers to the \u201cauthorized agency in charge of said construction.\u201d The plaintiff was not entitled to the instruction since no foundation had been laid for it. Gerler v. Cooley, 41 Ill App2d 233, 190 NE2d 488.\nWe conclude that the plaintiff was not among the class of persons protected by the statute since she was not traveling on the road under construction at the time of the occurrence. Furthermore, the instruction should not have been given because there were no allegations that defendants were the parties charged with the responsibility of safety at the site; and the language of the instruction, referring to \u201ca party,\u201d was more confusing than helpful. We are, therefore, reversing the judgment and remanding the cause for a new trial.\nSince there will be a new trial we must now consider a matter which arose at the trial and which is likely to arise again. There was much testimony regarding the extent of plaintiff\u2019s injuries, including the testimony of a neurologist and an orthopedist, also testimony concerning the results of X rays, myelograms and electromyograms. As a part of plaintiff\u2019s treatment psychiatry was recommended, and at trial the defendants had subpoenaed her psychiatrist, attempting to put him on the stand. The plaintiff objected, the trial court sustained the objection and quashed the subpoena, refusing to allow the doctor to testify to matters regarding his psychiatric treatment or consultations with the plaintiff.\nThe defendants argue that plaintiff had placed her mental condition in issue by claiming past and future pain and suffering as one element of her damages. They further contend that with such a claim they should be allowed to question the psychiatrist so that it could be ascertained whether plaintiff\u2019s pain and suffering was truly the result of physical trauma sustained by the accident, or whether it was a manifestation of some unrelated cause. Ill Rev Stats 1965, c 51, \u00a7 5.2, provides in pertinent part:\n\u201cIn civil and criminal cases, ... a patient . . . and a psychiatrist . . . have the privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient\u2019s mental condition between patient and psychiatrist, ....\n\u201cThere is no privilege under this Section for any relevant communications ....\nit\n\u201c(c) in a civil or administrative proceeding in which the patient introduced his mental condition as an element of his claim . . . .\u201d\nThe question is presented as to whether a patient waives the privilege allowed by the above statutory provision when, in a civil proceeding, that patient claims damages founded upon pain and suffering. Phrased differently, the question is whether by claiming damages on the basis of pain and suffering, one ipso facto places \u201cmental condition\u201d in issue as an element of his claim. This precise point has been ruled upon in Webb v. Quincy City Lines, Inc., 73 Ill App2d 405, 219 NE2d 165, in which the court answered the question in the negative. The opinion noted at page 408 that \u201c. . . the trial court held that the privilege statute applied, excluded the testimony of the psychiatrist and observed that the beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny . . .\u201d unless he affirmatively places his mental condition into issue.\nWe agree that it is the affirmative aspect which should be controlling. The privilege is too important to be brushed aside when the mental condition of the plaintiff may be only peripherally involved. It is not difficult to consider the many ways in which it could be argued that mental conditions were at issue, and soon there would exist more areas of inquiry deemed exceptions to the privilege than there would be areas of inquiry protected by the privilege. The ability to observe, to conc\u00e9ntrate, to relate our knowledge to others in a comprehensible manner, to tell the truth under oath, and many other phenomena, are all partially dependent upon what could be called one\u2019s \u201cmental condition.\u201d Thus, the extension of defendants\u2019 argument is to urge that whenever a plaintiff who has been under psychiatric care testifies at a trial, the defendant should be allowed to call the plaintiff\u2019s psychiatrist to the stand so that he could give a detailed analysis of the plaintiff\u2019s mental condition to aid the trier of fact in evaluating the merit of plaintiff\u2019s testimony. The important purpose of the creation of a patient-client privilege, however, was not meant to be paid lip service while being effectually eroded by judicial construction.\nOther courts which have been faced with similar questions have also concluded that the privilege should not be deemed waived unless affirmatively asserted to be in issue. In Collins v. Bair (Ind App), 252 NE2d 448 (1969), the plaintiff sued for injuries sustained from the alleged negligence of defendant\u2019s operation of her automobile. Plaintiff introduced many witnesses who testified that the injuries were the result of the accident. The defendant then called to the stand a chiropractor who had examined and treated the plaintiff. The trial court refused to allow the witness to testify regarding the area of plaintiff\u2019s body which he had treated, and the reviewing court reversed and remanded, holding that the plaintiff had waived his physician-patient privilege when he affirmatively made his physical well-being a part of his claim. At page 455 in Collins, the court said: \u201cIf a patient, by way of complaint, counterclaim or affirmative defense, places in issue his physical or mental condition, then he automatically waives the privilege. . . .\u201d\nIn Koump v. Smith, 25 NY2d 287, 250 NE2d 857 (1969), part of plaintiff\u2019s complaint alleged that at the time of the accident in question the defendant\u2019s intoxicated condition caused the collision. The defendant denied the allegations, and the plaintiff requested permission to obtain copies of hospital records relating to defendant\u2019s physical condition after the accident. The court held that the records were privileged because the defendant had not affirmatively placed into issue his physical condition; that the simple denial of the allegation did not \u201caffirmatively\u201d put into issue defendant\u2019s physical condition.\nThe recognition that waiver of the privilege does occur when mental or physical condition has been affirmatively placed into issue carries with it the recognition that the privilege can be abused. In Koump the court noted at page 861: \u201cA party should not be permitted to assert a mental or physical condition in seeking damages or in seeking to absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim and the nature and extent of the injury or condition.\u201d This concern over the potential abuse of the privilege, the capability of using it to prevent full disclosure of the truth, has been noted by eminent authorities. 8 Wigmore, Evidence (McNaughton Rev, 1961), \u00a7 2380a; McCormick, Evidence (1954), \u00a7 108.\nWe fully agree that the privilege should not be abused, and we therefore concur in the view that the privilege can be waived either expressly or by affirmatively placing in issue one\u2019s physical or mental condition. However, one does not place into issue his mental condition by including in his complaint an allegation for pain and suffering. Unless mental well-being is specifically made an issue by the pleadings, the privilege pertains, and our trial courts should sustain plaintiffs\u2019 objections to permitting psychiatrists to testify as to plaintiffs\u2019 \u201cmental condition.\u201d\nConsequently, in the instant case the judgment must be reversed and remanded to the trial court for further proceedings in accordance with this opinion.\nReversed and remanded with directions.\nLYONS and BURKE, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE McCORMICK"
      }
    ],
    "attorneys": [
      "Joseph A. Bailey and Jerome H. Torshen, of Chicago, for appellants.",
      "Fred Lambruschi and Herbert P. Veldenz, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Joan L. Tylitzki, Plaintiff-Appellee, v. Triple X Service, Inc., a Corporation, and Richard E. Hebson, Defendants-Appellants.\nGen. No. 53,043.\nFirst District, Second Division.\nJune 2, 1970.\nJoseph A. Bailey and Jerome H. Torshen, of Chicago, for appellants.\nFred Lambruschi and Herbert P. Veldenz, of Chicago, for appellee."
  },
  "file_name": "0144-01",
  "first_page_order": 150,
  "last_page_order": 158
}