{ "id": 4279907, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DENNIS M. POPECK, Defendant-Appellee", "name_abbreviation": "People v. Popeck", "decision_date": "2008-10-31", "docket_number": "No. 4\u201408\u20140200", "first_page": "806", "last_page": "811", "citations": [ { "type": "official", "cite": "385 Ill. App. 3d 806" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "879 N.E.2d 1144", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8401162 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "1154" }, { "page": "1154" }, { "page": "1154" } ], "opinion_index": 0, "case_paths": [ "/ne2d/879/1144-01" ] }, { "cite": "696 N.E.2d 849", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "852" }, { "page": "852" } ], "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 206", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910214 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "209" }, { "page": "209-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0206-01" ] }, { "cite": "670 N.E.2d 1208", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "1215" }, { "page": "1214" } ], "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182734 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "763-64" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0753-01" ] }, { "cite": "77 Ill. 2d 259", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490830 ], "year": 1979, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0259-01" ] }, { "cite": "42 U.S.C. \u00a7201", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1996, "opinion_index": 0 } ], "analysis": { "cardinality": 555, "char_count": 12152, "ocr_confidence": 0.807, "pagerank": { "raw": 5.8168382438999393e-08, "percentile": 0.3621523880349781 }, "sha256": "f5352acbd6f31ffc4a8f0b8483b7ae39fc7cf7f08b8391883a480f1209776ab9", "simhash": "1:bb6ed4b61f8986b0", "word_count": 1986 }, "last_updated": "2023-07-14T18:58:06.429737+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DENNIS M. POPECK, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nDefendant, Dennis M. Popeck, was charged with driving under the influence (DUI) (625 ILCS 5/11 \u2014 501(a)(2) (West 2006)). The State filed a motion for leave to issue a subpoena duces tecum to a hospital for his medical records for November 27, 2007, the day defendant was charged with the DUI and the day he was involved in a motor vehicle accident and treated at the hospital. Defendant filed a response contesting the State\u2019s motion. The trial court denied the State\u2019s request for a subpoena. The State appeals. We reverse and remand.\nI. BACKGROUND\nOn November 27, 2007, defendant was charged by citation with DUI. On December 4, 2007, the State filed a motion for leave to issue a subpoena duces tecum and for the entry of a Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C. \u00a7201 (1996)) qualified protective order. On February 4, 2008, defendant filed an answer objecting to the release of all of his medical records for November 27, 2007, arguing that only the results of chemical tests may be released.\nOn February 7, 2008, the State filed an amended motion and an attached subpoena duces tecum. In the motion, the State alleged that defendant was involved in a motor vehicle accident on November 27, 2007, and was taken to a hospital for treatment. The same day, defendant was arrested for DUI. The State sought medical records \u201cfor treatment that occurred on November 27, 2007.\u201d\nOn February 15, 2008, the trial court conducted a hearing on the State\u2019s amended motion. At the hearing, defendant argued the State\u2019s request involved a \u201cfishing expedition\u201d and was overly broad. The State indicated that hospital medical personnel, who treated defendant, would be able to testify as to defendant\u2019s physical and mental condition when he was treated. Specifically, (1) a paramedic told the investigating officer that defendant appeared to be very intoxicated; (2) defendant acknowledged to the officer that he had been drinking and the officer noted the odor of alcohol in the ambulance and in defendant\u2019s vehicle; (3) the victim stated she was struck twice by defendant\u2019s vehicle when she was sitting at a red light; and (4) a nurse gave the investigating officer a bottle of vodka when he went to the hospital. Both the State and defense counsel admitted they were unable to find any cases dealing with a subpoena for a defendant\u2019s entire medical record. The trial court indicated that HIPAA allowed for disclosure of medical information upon order of the court.\nOn February 29, 2008, the trial court issued a written decision. In the decision, the court noted that the issue is \u201cwhether or not a subpoena \u2018for all the defendant\u2019s medical records\u2019 is unreasonable, oppressivet,] or overbroad pursuant to People ex rel. Fisher v. Carey, 77 Ill. 2d 259, 270 (1979).\u201d The court noted a lack of Illinois case law regarding subpoenaing a defendant\u2019s entire medical record but noted the Nohren case as instructive. People v. Nohren, 283 Ill. App. 3d 753, 670 N.E.2d 1208 (1996). In Nohren, this court stated \u201c[w]e cannot agree that the subpoena here, which requested defendant\u2019s blood tests and specified the time period October 7 through October 9, 1995, was overbroad. The State did not request all of defendant\u2019s medical records.\u201d (Emphasis added.) Nohren, 283 Ill. App. 3d at 763-64, 670 N.E.2d at 1215. The court determined that the quote from Nohren suggested that a request for all of defendant\u2019s medical records, even for just one day, would be considered overbroad and denied the State\u2019s motion.\nThis appeal followed.\nII. ANALYSIS\nThe State argues that the trial court erred in denying its request for a subpoena duces tecum. The State argues that the court\u2019s reliance on Nohren was misplaced as the issue in Nohren was whether a subpoena for a defendant\u2019s blood test that specified a time period was overbroad and this court did not address the issue posed in this case. Further, the State relies on People v. Mitchell, 297 Ill. App. 3d 206, 209, 696 N.E.2d 849, 852 (1998), wherein the court found that a defendant\u2019s request for a subpoena for police records limited to the day of defendant\u2019s traffic stop was not overbroad as it did not overburden the State and was not oppressive or unreasonable. Finally, the State cites a recent Indiana case, State v. Eichhorst, 879 N.E.2d 1144, 1154 (Ind. App. 2008), that concluded the State\u2019s request for a subpoena for all of a defendant\u2019s medical records for the date she was treated for her injuries acquired in a traffic accident wherein she may have been intoxicated was \u201csufficiently limited in scope and specific in directive.\u201d\nDefendant counters that Illinois statutes only allow release of chemical tests. Section 8 \u2014 802 of the Code of Civil Procedure (Code) states 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 2006). Defendant claims only one exception to this general rule applies and it includes disclosure of chemical tests \u201cin prosecutions where written results of blood[-]alcohol tests are admissible pursuant to [sjection 11 \u2014 501.4 of the Illinois Vehicle Code.\u201d 735 ILCS 5/8 \u2014 802(9) (West 2006). Section 11 \u2014 501.4(b) establishes the foundational elements of admitting chemical tests in a prosecution for a DUI. 625 ILCS 5/11 \u2014 501.4(b) (West 2006). Section 11 \u2014 501.4 also states the following:\n\u201cThe confidentiality provisions of law pertaining to medical records and medical treatment shall not be applicable with regard to chemical tests performed upon an individual\u2019s blood under the provisions of this [s]ection in prosecutions as specified in subsection (a) of this [s]ection.\u201d 625 ILCS 5/11 \u2014 501.4(b) (West 2006).\nDefendant also cites section 11 \u2014 501.4\u20141 (625 ILCS 5/11 \u2014 501.4\u20141 (West 2006)), which further delineates the method of disclosure of results of chemical tests in DUI prosecutions, and argues that this section does not authorize the release of the entire medical record of the patient, only the results of chemical tests. Defendant argues these statutes prohibit disclosure of any other medical record information outside the results of chemical tests.\nAlternatively, defendant argues that even if release of medical information other than written results of blood-alcohol tests is proper, the subject of the State\u2019s subpoena was overly broad and would allow the State to embark on a \u201cfishing expedition.\u201d\nWhile section 8 \u2014 802 prohibits disclosure of medical records unless an exception applies, it is not true that only the exception of section 8 \u2014 802(9) applies to this case. Defendant dismisses as not applicable the exception of section 8 \u2014 802(4), which creates an exception \u201cin all actions brought by or against the patient, his or her personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his or her estate wherein the patient\u2019s physical or mental condition is an issue.\u201d 735 ILCS 5/8 \u2014 802(4) (West 2006). This court has already recognized in Nohren that an exception identical to subsection (4), then referred to as subsection (4.1), applied to the State\u2019s motion to view a defendant\u2019s blood tests, reasoning that \u201ca DUI is an \u2018action! 1 brought against the patient\u2019 in which the patient\u2019s physical or mental condition is an element of the offense and therefore at issue.\u201d Nohren, 283 Ill. App. 3d at 762, 670 N.E.2d at 1214, quoting 735 ILCS 5/8 \u2014 802(4.1), (9) (West Supp. 1995). Section 8 \u2014 802(4), therefore, allows release of medical information other than written results of blood-alcohol test.\nThe only issue is whether the State\u2019s request for all of defendant\u2019s medical records for the day he was treated for injuries acquired in the accident was overly broad. As both the parties and the trial court determined, no Illinois case addresses such a request. In finding the request overbroad, the trial court relies on dicta in Nohren opining that a request for all of a defendant\u2019s medical records would be overbroad. The hypothetical request in Nohren is broader, though, than the request in this case as the request in this case is limited to medical records only for the day of the accident. Clearly, the State can request the results of chemical tests (735 ILCS 5/8 \u2014 802(9) (West 2006)), and few would disagree that a request for all medical records is overbroad. This case, though, falls in the middle.\nAn Indiana court found itself in a similar quandary when a prosecutor in a DUI case subpoenaed \u201c[a]ny and all medical records (including test for blood[-]alcohol level and drug screen) on Ali Eichhorst *** treated on or about April 15, 2006.\u201d Eichhorst, 879 N.E.2d at 1154. The Indiana court concluded that the prosecutor\u2019s request for medical records that related to the date of the accident would \u201cnaturally contain the medical staff\u2019s observations of Eichhorst, which could be relevant in determining whether she was intoxicated at the time of the accident\u201d and found the subpoena \u201csufficiently limited in scope and *** directive.\u201d Eichhorst, 879 N.E.2d at 1154.\nIn this case, the State argued to the trial court that it had evidence that a nurse and physicians who treated defendant on the day of the accident are potential witnesses and their observations and opinions are relevant and not protected under the patient-physician privilege.\nWe agree that the medical staffs observations of defendant on the date of the accident are relevant in determining whether defendant was intoxicated. The State had evidence that medical staff may have observed defendant\u2019s state of intoxication as a paramedic told an investigating officer that defendant appeared intoxicated and a nurse gave an investigating officer a bottle of vodka after defendant was admitted to the hospital.\nWe further note that the State argued to the trial court that under the subpoena, the hospital would return the medical records to the court in a sealed condition and the court could \u201cmake any sort of in camera inspection if it was required.\u201d In Mitchell, the court affirmed a defendant\u2019s subpoena for all of the police records relating to defendant\u2019s arrest on the date of the arrest and noted that \u201cbuilt-in safeguards for the review and release of information under a subpoena will adequately protect the State from unreasonable requests.\u201d Mitchell, 297 Ill. App. 3d at 209-10, 696 N.E.2d at 852. Release of defendant\u2019s medical records for the date of his alleged DUI to the court is not without safeguards and is not unreasonable.\nBecause access to defendant\u2019s medical records solely for the date of the accident is relevant, material, and not privileged, the subpoena was sufficiently limited in scope and should have been granted.\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment and remand for further proceedings.\nReversed and remanded.\nMYERSCOUGH, J., concurs.", "type": "majority", "author": "JUSTICE COOK" }, { "text": "PRESIDING JUSTICE APPLETON,\ndissenting:\nI respectfully dissent from the majority\u2019s decision. While I would agree that a subpoena properly would lie for the production of the mere fact of treatment and the identity of treating professionals, I believe the subpoena here was overbroad. The information sought should be received by testimony from the persons who treated defendant or with whom he otherwise had contact at the hospital. The nature of the information sought, i.e., defendant\u2019s state of intoxication, would not be privileged medical information subject to HIPAA. What was sought by the State would entitle it to know private medical information irrelevant to the charges lodged against defendant.", "type": "dissent", "author": "PRESIDING JUSTICE APPLETON," } ], "attorneys": [ "Timothy J. Huyett, State\u2019s Attorney, of Lincoln (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of Springfield), for the People.", "James G. Grimaldi, of Muck & Muck, of Lincoln, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DENNIS M. POPECK, Defendant-Appellee.\nFourth District\nNo. 4\u201408\u20140200\nOpinion filed October 31, 2008.\nTimothy J. Huyett, State\u2019s Attorney, of Lincoln (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of Springfield), for the People.\nJames G. Grimaldi, of Muck & Muck, of Lincoln, for appellee." }, "file_name": "0806-01", "first_page_order": 822, "last_page_order": 827 }