{ "id": 4266667, "name": "DAWN DEFILIPPIS et al., Plaintiffs-Appellees, v. WILLIAM GARDNER et al., Defendants-Appellants", "name_abbreviation": "Defilippis v. Gardner", "decision_date": "2006-11-21", "docket_number": "No. 2\u201406\u20140019", "first_page": "1092", "last_page": "1097", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 1092" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "105 Ill. App. 3d 850", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5473034 ], "year": 1982, "pin_cites": [ { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0850-01" ] }, { "cite": "206 Ill. App. 3d 437", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2559949 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "439" }, { "page": "445" }, { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/206/0437-01" ] }, { "cite": "323 Ill. App. 3d 393", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171576 ], "year": 2001, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0393-01" ] }, { "cite": "336 Ill. App. 3d 442", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599275 ], "year": 2002, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0442-01" ] }, { "cite": "294 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35387 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "723" }, { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0720-01" ] }, { "cite": "89 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493896 ], "year": 1982, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0001-01" ] } ], "analysis": { "cardinality": 601, "char_count": 12454, "ocr_confidence": 0.763, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1429363256313399 }, "sha256": "1697ff12c62d84bf8cd4417d4232abdd4fb15247b3b7ded8dea2880b71ee00b5", "simhash": "1:8bae94f2158fd75e", "word_count": 1999 }, "last_updated": "2023-07-14T20:06:43.500571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DAWN DEFILIPPIS et al., Plaintiffs-Appellees, v. WILLIAM GARDNER et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE GILLERAN JOHNSON\ndelivered the opinion of the court:\nThe plaintiffs, Dawn and Frank Defilippis, sued the defendants, William Gardner, M.D., and Westmoreland OB/Gyne Associates, Inc., for damages sustained by Dawn as a result of negligent medical treatment. During the course of discovery, the trial court ordered the defendants to produce the names and addresses of 20 nonparty patients upon whom Gardner had performed a certain medical procedure. The defendants refused, claiming that the information fell within the physician-patient privilege (735 ILCS 5/8 \u2014 802 (West 2004)). Upon the defendants\u2019 request, the trial court held the defendants in contempt of court and imposed a $25 fine. Following the denial of their motion to reconsider, the defendants timely appealed. The issue on appeal is whether the physician-patient privilege protects the names and addresses of nonparty patients who underwent a particular medical procedure performed by a defendant doctor. We hold that it does.\nBACKGROUND\nOn January 7, 2004, the plaintiffs filed a two-count complaint against the defendants, alleging a medical malpractice claim and a cause of action for loss of consortium. According to the complaint, Dawn went to Gardner, a doctor with specialized training and experience in obstetrics and gynecology, for help with urinary stress incontinence. Gardner recommended that Dawn undergo a retropubic Burch colposuspension procedure (\u201cBurch procedure\u201d or \u201cprocedure\u201d) to remedy her problem. The plaintiffs alleged that Gardner failed to advise Dawn of alternative options, failed to advise Dawn of potential risks associated with the procedure, failed to advise Dawn of his limited experience in performing the procedure, failed to evaluate Dawn for urinary incontinence prior to the procedure, failed to employ urodynamics, and discharged Dawn with emesis.\nOn April 20, 2005, Gardner testified at his deposition that he met with Dawn on April 19, 1999, and evaluated her for urinary incontinence. Gardner took a history from Dawn and performed a physical examination. After examining Dawn, Gardner discussed possible treatments with her, including the Burch procedure. Gardner did not take notes during his examination of Dawn and did not document his conversation with her. However, he was certain that the examination and discussion had occurred because \u201cevery patient that I do a Birch [sic] procedure on, I go through the scenario that you just described of, the history and the physical and discussing the procedure and risks thereafter.\u201d According to Gardner, he had performed approximately 20 Burch procedures prior to performing the procedure on Dawn.\nOn April 29, 2005, following Gardner\u2019s deposition, the plaintiffs sent the defendants a second set of interrogatories under Supreme Court Rule 213 (210 Ill. 2d R. 213), including the following question:\n\u201c1. With regard to the 20 individuals upon whom Dr. Gardner has testified at his deposition that he has performed a Birch [sic] procedure prior to the one performed on the Plaintiff, Dawn DeFilippis on May 12, 1999, identify:\na. The name, address, and last known phone number of that individual;\nb. When and where Dr. Gardner performed the Birch [sic] procedure on this individual;\nc. The reason why Dr. Gardner performed this procedure on the individual;\nd. The identity of all persons who have knowledge regarding Dr. Gardner performing the Birch [sic] procedure on this individual;\ne. All medical records in the Defendants\u2019 possession with regard to the Birch [sic] procedure performed by Dr. Gardner on this individual.\u201d\nThe plaintiffs also sent a second request to produce under Supreme Court Rule 214 (166 Ill. 2d R. 214), seeking \u201c[a]ll medical records in the possession of the Defendants for each individual whom Dr. Gardner performed a Birch [sic] procedure prior to the one performed on Dawn Defilippis on May 12, 1999.\u201d\nOn July 6, 2005, the defendants objected to the discovery requests, based on the physician-patient privilege. On August 2, 2005, the plaintiffs moved to compel the defendants to comply with their second set of interrogatories and document requests. The plaintiffs argued that the defendants had waived their objections because their response was untimely filed.\nAfter a hearing, on September 13, 2005, the trial court granted the plaintiffs\u2019 motion to compel but stayed production, based on the defendants\u2019 oral motion to be held in contempt of court. The trial court found the defendants in contempt of court and fined them $25.\nThe defendants moved for reconsideration. At the hearing on the motion, the plaintiffs offered to limit their request to the names and addresses of the patients upon whom Gardner performed a Burch procedure and the \u201cCPT\u201d codes for the procedure. The trial court denied the defendants\u2019 motion to reconsider. The trial court ordered the defendants to produce the names and addresses but again stayed production, found the defendants in contempt, and fined them $25. The defendants timely appealed under Supreme Court Rule 304(b)(5) (155 Ill. 2d R. 304(b)(5)).\nANALYSIS\nThe defendants argue that the trial court erred in ordering them to disclose the names and addresses of the 20 patients upon whom Gardner performed a Burch procedure, because such disclosure violates the physician-patient privilege. In response, the plaintiffs argue that the defendants have waived their right to object to the discovery requests, because they did not timely respond under Rule 213 (210 Ill. 2d R. 213) and Rule 214 (166 Ill. 2d R. 214). Notwithstanding waiver, the plaintiffs argue that production of the names and addresses does not violate the physician-patient privilege because the information could be obtained from the defendants\u2019 accounting records, obtaining the information would not require that the parties delve into the patients\u2019 medical records, and the information would not identify the patients\u2019 medical conditions. For the following reasons, we agree with the defendants and hold that the information is privileged.\nAs an initial matter, we reject the plaintiffs\u2019 argument that the defendants waived their right to object to the discovery requests by failing to timely respond. The plaintiffs have not cited any decision holding that the trial court may not allow discovery responses or objections beyond the deadlines in the rules. The federal decision the plaintiffs cite, Hobley v. Burge, No. 03\u2014C\u20143678 (N.D. Ill. October 15, 2003), interprets federal discovery rules and bears no relevance to the present case. Furthermore, the plaintiffs have failed to cite any case that holds that a doctor has the power to waive a patient\u2019s right to confidentiality. The privilege is for the patient\u2019s benefit, not the physician\u2019s. People v. Bickham, 89 Ill. 2d 1, 6 (1982). Accordingly, we reject the plaintiffs\u2019 claim that the defendants\u2019 untimely objection to the plaintiffs\u2019 discovery requests results in waiver of their objection.\nWe now address the propriety of the discovery order. When an individual appeals a finding of contempt arising from noncompliance with a discovery order, we must necessarily review the propriety of the discovery order. In re Marriage of Bonneau, 294 Ill. App. 3d 720, 723 (1998). If the discovery order is improper, the finding of contempt must be reversed. Bonneau, 294 Ill. App. 3d at 723. Generally, discovery rulings are reviewed for abuse of discretion, but the applicability of a privilege is reviewed de novo. Sterling Finance Management, L.P. v. UBS PaineWebber, Inc., 336 Ill. App. 3d 442, 446 (2002).\nThe physician-patient privilege is codified in section 8 \u2014 802 of the Code of Civil Procedure, which provides that \u201c[n]o physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient.\u201d 735 ILCS 5/8 \u2014 802 (West 2004). \u201cIllinois law is clear that the medical records of nonparties are protected by the privilege.\u201d Reagan v. Searcy, 323 Ill. App. 3d 393, 398 (2001).\nRelying on this court\u2019s decision in House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437 (1990), the trial court held that \u201ca mere disclosure of the patient\u2019s name doesn\u2019t violate that privilege in these types of situations.\u201d In House, the plaintiff was attacked by a patient in a hospital lounge and sued the hospital for negligence. House, 206 Ill. App. 3d at 439. During the course of discovery, the plaintiff sought disclosure of the medical records of the patient who had attacked her. This court found that while the patient\u2019s medical records were protected by the physician-patient privilege, her name was not. We stated: \u201c[The] plaintiff was entitled to know the identity of the patient who allegedly attacked her and may contact and depose the patient if the plaintiff so desires. Simply revealing the patient\u2019s identity, in and of itself, will not result in the disclosure of confidential communications. It is evident that disclosure of the patient\u2019s name does not violate the physician-patient privilege.\u201d House, 206 Ill. App. 3d at 445.\nHouse does not support the trial court\u2019s ruling in this case. Here, we are dealing with more than the \u201cmere disclosure of the patient\u2019s name.\u201d See House, 206 Ill. App. 3d at 439. The information that the plaintiffs seek is directly related to the nonparty patients\u2019 medical conditions. The plaintiffs seek the names of the patients who underwent a Burch procedure. The obvious inference would be that the named patients suffered from urinary incontinence. Thus, if the defendants were to disclose the names of these patients, they would also disclose information \u201cnecessary to enable [them] professionally to serve the patient,\u201d i.e., the diagnosis of urinary incontinence as well as the medical treatment the patients received. 735 ILCS 5/8 \u2014 802 (West 2004). Such a disclosure is in clear contravention of the physician-patient privilege.\nAccordingly, we hold that the trial court erred in ordering the defendants to disclose the names and addresses of the 20 individuals upon whom Gardner performed the Burch procedure. Because we reverse the order compelling disclosure, we also reverse the finding of contempt. See Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850, 856 (1982).\nAs a final matter, the defendants also ask that we address the issue of whether the trial court may bar Gardner from testifying to his custom and practice if he is not required to produce the names and addresses of prior patients. The plaintiffs have filed a motion to strike this issue, arguing that we are without jurisdiction to consider it. We agree with the plaintiffs.\nAt the hearing on the motion to compel, the trial judge stated: \u201cI know at one time I discussed \u2014 you know \u2014 the issue of the possibility of the doctor\u2019s testimony in terms of his custom and practice might not be admissible without laying a proper foundation.\u201d He further stated, \u201cLooking at the case law on that matter, I think he\u2019s going to be able to testify to that without much of a foundation to go into any specific records or the like.\u201d\nInitially, we note that it is unclear whether the trial court even made a \u201cruling\u201d on the issue. In any event, the defendants\u2019 appeal was brought under Rule 304(b)(5), which allows for the appeal from \u201c[a]n order finding a person or entity in contempt of court which imposes a monetary or other penalty.\u201d 155 Ill. 2d R. 304(b)(5). As such, we are limited to reviewing the finding of contempt and the underlying order. Thus, we grant the plaintiffs\u2019 motion to strike.\nCONCLUSION\nBased on the foregoing, we reverse the orders of the circuit court of Lake County compelling the defendants to disclose the names and addresses of the 20 individuals upon whom Gardner performed a Burch procedure and holding the defendants in contempt for their failure to do so. We remand the cause.\nReversed and remanded.\nGROMETER, EJ., and KAPALA, J., concur.", "type": "majority", "author": "JUSTICE GILLERAN JOHNSON" } ], "attorneys": [ "Steven L. Larson and Linda E. Spring, both of Swanson, Martin & Bell, LLR of Libertyville, for appellants.", "Joel F. Handler, of Chicago, for appellees.", "Robert John Kane, of Illinois State Medical Society, of Chicago, and Richard King, of Illinois State Medical Society, of Springfield, for amicus curiae." ], "corrections": "", "head_matter": "DAWN DEFILIPPIS et al., Plaintiffs-Appellees, v. WILLIAM GARDNER et al., Defendants-Appellants.\nSecond District\nNo. 2\u201406\u20140019\nOpinion filed November 21, 2006.\nSteven L. Larson and Linda E. Spring, both of Swanson, Martin & Bell, LLR of Libertyville, for appellants.\nJoel F. Handler, of Chicago, for appellees.\nRobert John Kane, of Illinois State Medical Society, of Chicago, and Richard King, of Illinois State Medical Society, of Springfield, for amicus curiae." }, "file_name": "1092-01", "first_page_order": 1110, "last_page_order": 1115 }