{ "id": 1472372, "name": "AYESHA EL-AMIN, as Duly Appointed Special Adm'r of the Estate of Na'eem. Shahid, Deceased, Plaintiff-Appellee, v. MARY DEMPSEY et al., Defendants (Mary Dempsey, Defendant-Appellant)", "name_abbreviation": "El-Amin v. Dempsey", "decision_date": "2002-03-29", "docket_number": "No. 1\u201401\u20142173", "first_page": "800", "last_page": "809", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 800" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "570 N.Y.S.2d 804", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "805" }, { "page": "806" } ], "opinion_index": 0 }, { "cite": "168 A.D.2d 44", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 1022498 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "47" }, { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/ad2d/168/0044-01" ] }, { "cite": "648 N.Y.S.2d 169", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 1176545 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ad2d/232/0461-02" ] }, { "cite": "232 A.D.2d 461", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 1176545, 1176005 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/ad2d/232/0461-02", "/ad2d/232/0461-01" ] }, { "cite": "326 Ill. App. 3d 951", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281411 ], "weight": 10, "year": 2001, "pin_cites": [ { "page": "953" }, { "page": "956" }, { "page": "955" }, { "page": "956" }, { "page": "957" }, { "page": "955" }, { "page": "956" }, { "page": "957" }, { "page": "956" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0951-01" ] }, { "cite": "260 Ill. App. 3d 392", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2864957 ], "year": 1994, "pin_cites": [ { "parenthetical": "holding that a woman's competent choice to refuse medical treatment as invasive as a caesarian section must be honored even in circumstances where the choice might be harmful to the fetus and that the right to privacy was conceptually linked to the right to bodily integrity" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0392-01" ] }, { "cite": "67 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813471 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/67/0348-01" ] }, { "cite": "125 Ill. 2d 267", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554780 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "277" }, { "page": "278" }, { "page": "278" }, { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0267-01" ] }, { "cite": "319 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527809 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "772" }, { "page": "776" }, { "page": "772-73" }, { "page": "776" }, { "page": "779" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0771-01" ] }, { "cite": "206 Ill. App. 3d 437", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2559949 ], "year": 1990, "pin_cites": [ { "parenthetical": "plaintiff not entitled to medical records of her assailant, who attacked the plaintiff in the hospital lounge, even though this court found that much of the information contained in the nonparty's medical records would be relevant to the issue involved" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/206/0437-01" ] }, { "cite": "105 Ill. App. 3d 850", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5473034 ], "year": 1982, "pin_cites": [ { "parenthetical": "plaintiff not entitled to disclosure of nonparty patient medical records of patients who had suffered an adverse reaction to the drug given to the plaintiff" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0850-01" ] }, { "cite": "197 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2481856 ], "year": 1990, "pin_cites": [ { "parenthetical": "plaintiff not entitled to records of nonparty patients, with identification information deleted, due to physician-patient privilege" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0120-01" ] }, { "cite": "259 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871389 ], "year": 1994, "pin_cites": [ { "parenthetical": "plaintiff not allowed to have partial medical records of other patients - with names and identifying numbers deleted - for any patient who underwent surgery by the same surgeons and who experienced difficulties similar to the plaintiff" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0730-01" ] }, { "cite": "179 Ill. 2d 519", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801359 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "537-38" }, { "page": "538" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0519-01" ] }, { "cite": "148 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642305 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "591" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0581-01" ] }, { "cite": "22 Cal. Rptr. 2d 839", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "848" }, { "page": "848-49" }, { "page": "848-49" } ], "opinion_index": 0 }, { "cite": "18 Cal. App. 4th 919", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 4682080 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "933" }, { "page": "934" }, { "page": "934" } ], "opinion_index": 0, "case_paths": [ "/cal-app-4th/18/0919-01" ] }, { "cite": "454 N.Y.S.2d 455", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1982, "opinion_index": 0 }, { "cite": "89 A.D.2d 1013", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3300133 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ad2d/89/1013-01" ] }, { "cite": "591 N.Y.S.2d 547", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1992, "opinion_index": 0 }, { "cite": "188 A.D.2d 795", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 1106704 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ad2d/188/0795-01" ] }, { "cite": "625 N.Y.S.2d 827", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 930939 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "829-30" } ], "opinion_index": 0, "case_paths": [ "/misc2d/164/0535-01" ] }, { "cite": "165 Misc. 2d 535", "category": "reporters:state", "reporter": "Misc. 2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "538-39" } ], "opinion_index": 0 }, { "cite": "491 N.Y.S.2d 742", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "744-45" }, { "page": "744-45" }, { "page": "744-45" }, { "page": "744-45" } ], "opinion_index": 0 }, { "cite": "112 A.D.2d 297", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3429694 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "298" }, { "page": "298" }, { "page": "298" }, { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ad2d/112/0297-01" ] }, { "cite": "437 N.Y.S.2d 218", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1980, "opinion_index": 0 }, { "cite": "108 Misc. 2d 225", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 776654 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/misc2d/108/0225-01" ] }, { "cite": "463 N.Y.S.2d 224", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1983, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "93 A.D.2d 491", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3318000 ], "year": 1983, "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ad2d/93/0491-01" ] }, { "cite": "477 N.Y.S.2d 184", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1984, "pin_cites": [ { "page": "187" } ], "opinion_index": 0 }, { "cite": "102 A.D.2d 886", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3381512, 3376217, 3380682 ], "year": 1984, "pin_cites": [ { "page": "888" } ], "opinion_index": 0, "case_paths": [ "/ad2d/102/0886-03", "/ad2d/102/0886-01", "/ad2d/102/0886-02" ] }, { "cite": "315 Ill. App. 3d 225", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980618 ], "year": 2000, "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0225-01" ] } ], "analysis": { "cardinality": 974, "char_count": 26464, "ocr_confidence": 0.779, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32125849808232065 }, "sha256": "729be3dfdeb1e55e5b8e5ea2873bf2d6594cc4cfc75639464bd04326994f2cc0", "simhash": "1:7ffa548a529bf0a5", "word_count": 4306 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AYESHA EL-AMIN, as Duly Appointed Special Adm\u2019r of the Estate of Na\u2019eem. Shahid, Deceased, Plaintiff-Appellee, v. MARY DEMPSEY et al., Defendants (Mary Dempsey, Defendant-Appellant)." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nThe plaintiff, Ayesha El-Amin, filed this medical malpractice action seeking recovery of damages for the death of her infant son pursuant to the Wrongful Death Act (740 ILCS 180/0.01 (West 2000)) and the Survival Act (755 ILCS 5/27\u20146 (West 2000)). She alleges that defendant Mary Dempsey failed to recognize the signs and symptoms of hyperbilirubinemia and failed to inform the codefendant doctors of the child\u2019s signs and symptoms of hyperbilirubinemia during, her child\u2019s second and third days of life.\nDuring the course of discovery, defendant Dempsey issued a subpoena for all the medical records of plaintiff El-Amin at the University of Illinois Hospital. The plaintiff moved to quash the subpoena asserting that such discovery would violate her physician-patient privilege and her right to privacy. At the hearing on plaintiffs motion, Dempsey withdrew her request for all of El-Amin\u2019s medical records and narrowed her request to include only the records relating to prenatal care from the period during which El-Amin was pregnant with her son. The trial court granted El-Amin\u2019s motion to quash, without prejudice, and requested the parties brief and argue the plaintiffs motion to quash Dempsey\u2019s narrowed request for El-Amin\u2019s prenatal care records. On March 8, 2001, the court entered an order quashing Dempsey\u2019s proposed subpoena despite Dempsey\u2019s limited request of only the plaintiffs prenatal care records for the term of her pregnancy.\nOn June 7, 2001, the court granted Dempsey\u2019s motion to certify the following question of law for interlocutory appeal regarding the discoverability of El-Amin\u2019s prenatal care records:\n\u201cWhether a medical malpractice defendant is entitled to obtain medical records pertaining to the prenatal care rendered to the plaintiffs decedent\u2019s mother during the term of her pregnancy with plaintiffs decedent, despite the mother\u2019s invocation of the physician-patient privilege and a right to privacy, where (1) the mother is both the plaintiff who filed the wrongful death cause of action on behalf of the decedent\u2019s estate and a beneficiary to the decedent\u2019s estate; and (2) where the plaintiffs decedent\u2019s death is alleged to have resulted 16 days after the decedent\u2019s birth as a result of the defendants\u2019 allegedly negligent care rendered in the first three days of the decedent\u2019s life[.]\u201d\nOn July 30, 2001, we granted Dempsey\u2019s application for leave to appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). For the reasons that follow, we answer that certified question in the affirmative.\nOn May 8, 1998, El-Amin gave birth to her son Na\u2019eem Shahid in her home. Codefendant Dr. Zumhagen delivered the infant at approximately 3 a.m. On May 9 and May 10 of 1998, Dempsey evaluated the mother and child in the home and determined that the baby was jaundiced. On May 11, 1998, the child was admitted to the University of Illinois Hospital, where the child was diagnosed with hyperbiliru-binemia and kernicterus. The plaintiffs decedent was discharged from the hospital on May 16, 1998. On May 24, 1998, the plaintiffs decedent was taken to the University of Chicago Hospital, where the infant was pronounced dead. A Cook County medical examiner listed the cause of death as \u201cSudden Infant Death Syndrome.\u201d\nOn May 12, 2000, El-Amin filed a multiple-count complaint, and in her first amended complaint, she alleged that Dempsey and certain other physician and corporate defendants were guilty of medical negligence that resulted in the death of her son. In response to Dempsey\u2019s interrogatories, the plaintiff disclosed that she had received prenatal care at Women\u2019s Health and Associates (affiliated with the University of Illinois Hospital) during the course of her pregnancy.\nOn November 6, 2000, Dempsey caused a subpoena to be issued to the University of Illinois Hospital requesting \u201cany and all\u201d of El-Amin\u2019s medical records. On November 13, 2000, El-Amin presented an emergency motion to quash Dempsey\u2019s subpoena. In support of her emergency motion to quash, El-Amin made three arguments. First, she argued that she was only a nominal plaintiff and that she had not placed her medical condition at issue by filing suit. Second, she argued that her medical records were nondiscoverable because the disclosure of her medical records would violate her constitutional right to privacy. Lastly, she asserted that the disclosure of her records would violate the physician-patient privilege, which she claims she did not waive. On November 13, 2000, the trial court granted El-Amin\u2019s motion to quash -without prejudice. At that time, Dempsey proposed a narrower subpoena request for El-Amin\u2019s prenatal medical records only for the period that she was pregnant.\nIn response to Dempsey\u2019s new subpoena request, the court entered a briefing schedule regarding the discoverability of El-Amin\u2019s medical records for the period of her pregnancy. On March 8, 2001, however, the court entered an order quashing Dempsey\u2019s proposed subpoena.\nThereafter, Dempsey filed a motion pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) requesting the trial court to certify a question of law regarding the discoverability of El-Amin\u2019s prenatal care records during the term of her pregnancy. On June 7, 2001, the court granted Dempsey\u2019s motion and certified a question of law for interlocutory appeal, finding a substantial ground for a difference of opinion as to the court\u2019s order of March 8, 2001.\nThe standard of review of an interlocutory appeal, by permission of a certified question, is de nova. Moriarty v. Greene, 315 Ill. App. 3d 225, 231 (2000). On appeal, Dempsey asserts that she is entitled to obtain the medical records, of the plaintiff during the course of her pregnancy with her decedent. She asserts that El-Amin placed at issue the prenatal care afforded to the decedent by filing a medical malpractice claim against the defendants for injuries suffered by the decedent. In support of this assertion, she raises three arguments. First, she claims that inasmuch as the question presented for review is one of first impression, this court should find, as New York and California courts have, that the prenatal care records of a mother are inseparable from the prenatal care records of an infant plaintiff. Thus, Dempsey argues, El-Amin waived either her own or her infant\u2019s physician-patient privilege with respect to those records by filing a medical malpractice lawsuit on behalf of her deceased infant and, therefore, those records are discoverable. Secondly and alternatively, she argues that the current law of the state compels an identical result. Lastly, she claims that the Illinois Constitution affords only a limited right to privacy, which is inapplicable to what she terms a \u201creasonable\u201d discovery request for the plaintiffs records in this case.\nSince no Illinois court has squarely addressed this question, for guidance in our decision Dempsey points to similar decisions in New York and California that have held that a mother may not prevent medical malpractice defendants from obtaining the prenatal care records for the period during which the mother was pregnant with the infant plaintiff. In both states, in fact, courts have held that prenatal care records are not exclusively those of the mother but also belong equally to the infant. Accordingly, by filing such a medical malpractice action, either the mother or the infant plaintiff through his mother waives the physician-patient privilege with respect to prenatal care records. See, e.g., Scharlack v. Richmond Memorial Hospital, 102 A.D.2d 886, 888, 477 N.Y.S.2d 184, 187 (1984) (holding that the mother \u201ccan be deemed to have waived the physician-patient privilege only with respect to the medical history and records pertaining to the period when the plaintiff was in \u00fatero, during which time there could be no severance of the infant\u2019s prenatal history from his mother\u2019s medical history\u201d). See also Hughson v. St. Francis Hospital of Port Jervis, 93 A.D.2d 491, 500, 463 N.Y.S.2d 224, 231 (1983); Burgos v. Flower & Fifth Avenue Hospital, 108 Misc. 2d 225, 437 N.Y.S.2d 218 (1980).\nMoreover, in Yetman v. St. Charles Hospital, 112 A.D.2d 297, 491 N.Y.S.2d 742 (1985), the New York Court of Appeals found that even in an instance where a medical malpractice suit was filed on behalf of an infant by his father, the mother\u2019s prenatal care records that were kept during the course of her pregnancy with the infant plaintiff were discoverable. Specifically, Yetman held that \u201ccase law clearly holds that the mother\u2019s medical records pertaining to the period when the plaintiff was in \u00fatero are discoverable upon the theory of impossibility of severance.\u201d Yetman, 112 A.D.2d at 298, 491 N.Y.S.2d at 744-45.\nIn a more recent decision, the Supreme Court of Suffolk County, Appellate Division, held that in such instances, a mother does not waive her own physician-patient privilege with respect to the prenatal care records. Rather, she waives her infant\u2019s physician-patient privilege by filing the suit on the infant\u2019s behalf. Spratt v. Rochelson, 165 Misc. 2d 535, 625 N.Y.S.2d 827 (1994). The court held, \u201c[b]y commencing this action on behalf of Nicholas [the infant] and placing his physical condition in controversy thereby, Rosemary Spratt effectively waived Nicholas\u2019 physician/patient privilege (see Tiborsky v. Martorella, 188 A.D.2d 795, 591 N.Y.S.2d 547 [(1992)]). As such, defendant became entitled to disclosure of records, reports, and other items pertaining to plaintiffs injuries, diagnosis, and treatment (see Pizzo v. Bunora, 89 A.D.2d 1013, 454 N.Y.S.2d 455 [(1982)]).\u201d Spratt, 165 Misc. 2d at 538-39, 625 N.Y.S.2d at 829-30.\nSimilarly, in Palay v. Superior Court, 18 Cal. App. 4th 919, 933, 22 Cal. Rptr. 2d 839, 848 (1993), the California Court of Appeals held that a mother\u2019s constitutional right of privacy is not absolute. There, the court determined that a mother\u2019s right to privacy in her medical records did not prevent the disclosure of her prenatal care records in a medical malpractice action brought on behalf of her infant. Palay, 18 Cal. App. 4th at 934, 22 Cal. Rptr. 2d at 848-49.\nUltimately, Dempsey asks us to find, as New York and California courts have, that El-Amin impliedly waived her physician-patient privilege with respect to her prenatal care records for the period her son was in \u00fatero by filing a medical malpractice action on his behalf, or that El-Amin has waived her deceased infant\u2019s physician-patient privilege with respect to his prenatal care records while he was in \u00fatero for the same reasons and because his records are inseparable from his mother\u2019s records.\nAlternatively, Dempsey argues that Illinois has previously addressed the issue. In Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (1986), we found that \u201cwhen a patient files suit, he implicitly consents to his physician releasing any of the medical information related to the mental or physical condition which the patient has placed at issue in the lawsuit.\u201d Petrillo, 148 Ill. App. 3d at 591. Correlatively, Dempsey argues that plaintiff placed the health of the plaintiffs decedent at issue by filing this lawsuit. And because those records are inextricably linked to and address the health and condition of the plaintiffs decedent during the prenatal period, the plaintiff has placed her own medical records at issue for the duration of the pregnancy. As a result, Dempsey asserts that she is entitled to review the records of the prenatal care of the plaintiff, which are unquestionably \u201crelated to the mental or physical condition\u201d of the plaintiffs decedent.\nLastly, Dempsey addresses the plaintiffs argument at the trial level that the Illinois Supreme Court, in Kunkel v. Walton, 179 Ill. 2d 519 (1997), held that even a person making a claim for bodily injury or disease still has the right to privacy. In Kunkel, the court declared section 2 \u2014 1103(a) of the Illinois Code of Civil Procedure (735 ILCS 5/2\u20141103(a) (West 1996)) to be unconstitutional for mandating that \u201c[a]ny party who by pleading alleges any claim for bodily injury or disease, including mental health injury or disease, shall be deemed to waive any privilege between the injured person and each health care provider who has furnished care at any time to the injured person.\u201d (Emphasis added.) The court found that \u201c \u2018[a] person has a reasonable expectation that he will not be forced to submit to a close scrutiny of his personal characteristics, unless for a valid reason. *** [T]he individual\u2019s privacy interest in his physical person *** must be protected.\u2019 [Citation.] We believe that this privacy interest pertaining to individual physical characteristics necessarily encompasses personal medical information.\u201d Kunkel, 179 Ill. 2d at 537-38.\nDempsey, however, argues that such a reading of Kunkel ignores the court\u2019s specific language that the right to privacy does not protect disclosure of a person\u2019s medical records absolutely. Rather, the right to privacy acts as a bar only to \u201cunreasonable invasions of privacy\u201d where \u201creasonableness is a function of relevance.\u201d (Emphasis omitted.) Kunkel, 179 Ill. 2d at 538. In the present case, she argues, there can be no question as to the relevance of the medical records of the prenatal care rendered to the plaintiffs decedent, whose injuries arose in the period immediately following his birth. Ultimately, she claims, as the Kunkel court stated, \u201c[i]t is reasonable to require full disclosure of medical information that is relevant to the issues in the lawsuit.\u201d Kunkel, 179 Ill. 2d at 538.\nPlaintiff, on the other hand, asserts that defendant is simply ignoring \u201cthe great body of case law\u201d dealing with the physician-patient privilege and the right of privacy that nonparties have as well as the privileges and privacy rights that pregnant women have by virtue of the child they are carrying. In fact, plaintiff claims, the New York and California cases to which Dempsey cites are actually inconsistent with the express language of the physician-patient privilege and with the body of Illinois law.\nBy way of example, plaintiff notes that this court has, on numerous occasions, refused to allow the disclosure of nonparty medical records. See, e.g., Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 730 (1994) (plaintiff not allowed to have partial medical records of other patients \u2014 with names and identifying numbers deleted \u2014 for any patient who underwent surgery by the same surgeons and who experienced difficulties similar to the plaintiff); Ekstrom v. Temple, 197 Ill. App. 3d 120 (1990) (plaintiff not entitled to records of nonparty patients, with identification information deleted, due to physician-patient privilege); Parkson v. Central Du Page Hospital, 105 Ill. App. 3d 850 (1982) (plaintiff not entitled to disclosure of nonparty patient medical records of patients who had suffered an adverse reaction to the drug given to the plaintiff); House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437 (1990) (plaintiff not entitled to medical records of her assailant, who attacked the plaintiff in the hospital lounge, even though this court found that much of the information contained in the nonparty\u2019s medical records would be relevant to the issue involved).\nMore importantly, plaintiff argues that this court recently decided a very similar case against the defendant\u2019s position. See In re D.H., 319 Ill. App. 3d 771 (2001). There, the defendant sought all of the medical records of all the minor\u2019s parents and siblings. D.H., 319 Ill. App. 3d at 772. Obviously, plaintiff notes, a-request for all medical records of the mother would include the prenatal records of the mother as they relate to the minor in question. However, this court refused to allow the defendant in that case to have any of the medical records sought, because all of the records were of nonparties and, thus, were privileged. D.H., 319 Ill. App. 3d at 776. After D.H., plaintiff argues, it cannot be argued that Illinois does not have authority for a request for the mother\u2019s prenatal records.\nWith regard to Dempsey\u2019s citation of Petrillo, plaintiff notes that the plaintiff there was the patient whose medical information was in question and was the same person for whom recovery was being sought as a result of physical injuries. Petrillo, 148 Ill. App. 3d at 585. Thus, plaintiff argues, Petrillo does not address the principle at issue in the present case, because the defendant here is not seeking medical records of plaintiffs decedent, who is the only person alleged in the complaint to have suffered physical injuries.\nRather, plaintiff asserts that D.H. is the most factually similar to the present facts. Again, there, the defendant sought the medical records of the mother, who was suing as parent and next friend of the injured minor. D.H., 319 Ill. App. 3d at 772-73. The D.H. court held that the mother\u2019s records were privileged, nonparty medical records. D.H., 319 Ill. App. 3d at 776. Thus, El-Amin notes, even though the mother was suing on behalf of the minor-plaintiff as parent and next friend, the mother\u2019s own records were privileged. Accordingly, plaintiff argues that if we are to keep in step with D.H., we should also support the importance of maintaining the confidentiality of medical records of people who are not the party alleged in the complaint to have been injured.\nLastly, in response to defendant\u2019s reliance upon Kunkel, the plaintiff simply argues that the plain language of the physician-patient privilege prohibits a child or someone on the child\u2019s behalf from obtaining the medical records of the mother without the mother\u2019s consent. Put another way, plaintiff asserts, if a mother chooses for any reason to withhold consent or is competent but unavailable, the child would not be able to get the mother\u2019s medical records even where such records might be important to the child\u2019s health or well-being.\nFor this, El-Amin claims that Illinois courts have concluded in several instances that, prior to birth, the baby a woman is carrying does not have rights that supercede the mother\u2019s rights. In Stallman v. Youngquist, 125 Ill. 2d 267 (1988), for example, the supreme court found that a fetus, subsequently born alive, does not have a cause of action against its mother for the unintentional infliction of prenatal injuries. The court noted that while Illinois has recognized the right of the fetus to sue for the negligence of third persons (see, e.g., Renslow v. Mennonite Hospital, 67 Ill. 2d 348 (1977)), there is strong public policy in Illinois that states that \u201cthe law will not treat a fetus as an entity which is entirely separate from its mother.\u201d Stallman, 125 Ill. 2d at 277. El-Amin notes that the court expressly refused to subject to state scrutiny \u201call the decisions a woman must make in attempting to carry a pregnancy to term,\u201d which would infringe on the woman\u2019s privacy and bodily autonomy. Stallman, 125 Ill. 2d at 278. Instead, the Stallman court specifically held that it would be a legal fiction \u201cto treat the fetus as a separate legal person with rights hostile to and assertable against its mother.\u201d Stallman, 125 Ill. 2d at 278. See also In re Baby Boy Doe, 260 Ill. App. 3d 392 (1994) (holding that a woman\u2019s competent choice to refuse medical treatment as invasive as a caesarian section must be honored even in circumstances where the choice might be harmful to the fetus and that the right to privacy was conceptually linked to the right to bodily integrity).\nThe most recent expression of this court on this subject is Kunz v. South Suburban Hospital, 326 Ill. App. 3d 951 (2001). While Kunz did not address specifically the certified question set out here, it laid the groundwork for our result today; namely, that filing a medical malpractice lawsuit on behalf of a child waives the physician-patient privilege for records when the child was in \u00fatero. In Kunz, we addressed the issue of \u201cwhether a parent who files a medical malpractice action on behalf of one child may, by answering certain questions and raising certain issues in the course of discovery, waive the physician-patient privilege that shields the medical records of her other children.\u201d Kunz, 326 Ill. App. 3d at 953. We then analyzed the decisions in Kunkel, Parkson, and D.H. and concluded \u201cthat filing a medical malpractice lawsuit on behalf of a child, even when a genetic cause independent of medical malpractice may become an issue, does not thereby waive the physician-patient privilege in favor of the child\u2019s siblings.\u201d Kunz, 326 Ill. App. 3d at 956.\nBefore arriving at that conclusion, we also examined and cited with approval similar New York cases that refused to find waiver of the physician-patient privilege when a mother brings suit on behalf of a child for injuries suffered during childbirth. We noted that in Murphy v. LoPresti, 232 A.D.2d 461, 648 N.Y.S.2d 169 (1996), the New York Court of Appeals found that \u201c[b]y suing in her representative capacity as the mother of the infant plaintiff, the mother did not waive her physician-patient privilege even though she alleged in the bill of particulars that the defendants failed to record or appreciate her medical history.\u201d Murphy, 232 A.D.2d at 462, 648 N.Y.S.2d at 169; Kunz, 326 Ill. App. 3d at 955. We also noted that In re New York County DES Litigation, 168 A.D.2d 44, 47, 570 N.Y.S.2d 804, 805 (1991), held that \u201c[t]he mere fact that a relative, distant or near in terms of kinship, has commenced a medical malpractice action alleging a birth defect should not subject all her relatives to the \u2018long arm\u2019 reach of the law authorizing their medical histories open to all.\u201d See Kunz, 326 Ill. App. 3d at 956. Lastly, we noted that the court in Yetman, 112 A.D.2d at 298, 491 N.Y.S.2d at 744-45, held that the medical history of a plaintiffs pregnancies, other than that of the infant plaintiff, \u201cis a matter that falls within the scope of the physician-patient privilege.\u201d Kunz, 326 Ill. App. 3d at 957.\nAfter that, however, we made a special note that \u201c[t]he Murphy court [also] held that the mother only waived the privilege for records when the child was in \u00fatero,\u201d and then drew the reader\u2019s attention to the same result reached in California in Palay, 18 Cal. App. 4th at 934, 22 Cal. Rptr. 2d at 848-49. (Emphasis added.) Kunz, 326 Ill. App. 3d at 955. We also noted the language in New York County DES that \u201c \u2018[t]he plaintiffs are not required to turn over their mother\u2019s medical records beyond the gestation period.\u2019 \u201d (Emphasis added.) Kunz, 326 Ill. App. 3d at 956, quoting New York County DES, 168 A.D.2d at 47, 570 N.Y.S.2d at 806. Finally, we also tempered our citation of Yetman with Yetman\u2019s own caveat that \u201ca mother\u2019s medical records for the period when the infant plaintiff was in \u00fatero are discoverable.\u201d Kunz, 326 Ill. App. 3d at 957, citing Yetman, 112 A.D.2d at 298, 491 N.Y.S.2d at 744-45.\nAs we recognized in Kunz, \u201cin D.H., this court found that \u2018New York law is in accordance with Illinois law on the issue of whether the medical records of nonparties are protected by the physician-patient privilege with regard to both the facts and communications contained therein.\u2019 D.H., 319 Ill. App. 3d at 779.\u201d Kunz, 326 Ill. App. 3d at 956. Accordingly, given Kunz\u2019s and D.H.\u2019s approval of New York law in these situations \u2014 especially in light of Kunz\u2019s citation to New York\u2019s waiver exception to the physician-patient privilege \u2014 we feel compelled to answer the certified question for the defendant in the affirmative.\nOf course, Kunz is only persuasive and not controlling law. The issue there was whether the plaintiffs sibling\u2019s records were discoverable, and both New York and Illinois law established that no waiver of the physician-patient privilege could be found. That issue and those facts, however, are very different from the issue and facts currently before us. Here, as a practical matter, it would be impossible for anyone to obtain El-Amin\u2019s son\u2019s own medical records \u2014 separate from his mother\u2019s \u2014 for the time that he was in \u00fatero. In other words, the prenatal care records bearing the name of El-Amin during the period that her son was in \u00fatero are, for all purposes, the medical records of her son. Consequently, we find that the defendant is correct that she is entitled to obtain El-Amin\u2019s son\u2019s prenatal medical records via El-Amin\u2019s own prenatal medical records pursuant to statute and Petrillo. Particularly instructive on this is Yetman, where the mother\u2019s prenatal records were found to be discoverable, even though the husband filed the lawsuit. Yetman, 112 A.D.2d at 298, 491 N.Y.S.2d at 744-45. Here, once El-Amin\u2019s child\u2019s medical condition was placed at issue in the lawsuit, the physician-patient privilege was waived as to his prenatal medical records or, in other words, to the only relevant existing medical records \u2014 hers. And, as Kunkel noted, where the right to privacy is a bar only to \u201cunreasonable invasions of privacy,\u201d and \u201creasonableness is a function of relevance,\u201d the right to privacy cannot operate as a bar in this situation.\nMoreover, plaintiffs citation of Stallman for the proposition that the rights of a mother are superior to those of her subsequently born alive fetus is not supportive of her claim. Stallman, we note, held that a fetus has no cause of action against its mother for the unintentional infliction of prenatal injuries. Stallman, 125 Ill. 2d at 278. By contrast, as defendant notes, the matter before us is unrelated to that cause of action. Here, the plaintiffs decedent\u2019s cause of action is not hostile to its mother. Rather, the cause of action at issue is one for injuries of the infant brought on behalf of the infant by his mother, who is not only the administrator of her child\u2019s estate, but also one of its primary beneficiaries as well.\nFor the reasons stated above, we answer the trial court\u2019s certified question in the affirmative.\nCertified question answered.\nQUINN and REID, JJ., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Brian E O\u2019Kane, of Weldon-Linne & Vogt, of Chicago, for appellant.", "Hegarty & Heath, of Chicago (Terrence K. Hegarty and Timothy W Heath, of counsel), for appellee." ], "corrections": "", "head_matter": "AYESHA EL-AMIN, as Duly Appointed Special Adm\u2019r of the Estate of Na\u2019eem. Shahid, Deceased, Plaintiff-Appellee, v. MARY DEMPSEY et al., Defendants (Mary Dempsey, Defendant-Appellant).\nFirst District (5th Division)\nNo. 1\u201401\u20142173\nOpinion filed March 29, 2002.\nBrian E O\u2019Kane, of Weldon-Linne & Vogt, of Chicago, for appellant.\nHegarty & Heath, of Chicago (Terrence K. Hegarty and Timothy W Heath, of counsel), for appellee." }, "file_name": "0800-01", "first_page_order": 818, "last_page_order": 827 }