Posted by Gary Burger on January 31, 2019 in Commercial Litigation\
Cannot get Defendant’s Medical records in Illinois
At the end of 2018 the Illinois Supreme Court delivered an opinion that leaves a lot of questions for Plaintiffs going into the new year. In Palm v. Holocker, the Court found where the defendant’s medical condition is not at issue, they can invoke the physician-patient privilege to bar production of medical records.
However, this standard invokes a lot of uncertainty on what qualifies as “at issue,” despite the court attempting to flush out a hard line rule
In Holocker, Plaintiff alleged that defendant was negligent when he hit her while she was crossing the side walk. She alleged he failed to keep and maintain a safe and proper lookout, failed to stop at the stop sign, and failed to yield the right-of-way to Plaintiff.
These are the most common types of negligence allegations. Burger Law talks about these a lot. Check out one of our blogs on these issues.
The Defendant answered and alleged that plaintiff was negligent in that she improperly crossed a street when it was unsafe to do so, failed to keep a proper lookout; and was under the influence of an alcoholic or narcotic substance that impaired her ability at the time of the accident.”
During discovery, Defendant admitted he had a medical condition, diabetes, but refused to answer anything beyond. The Plaintiff’s argued that his diabetes had affected his eye sight and they were entitled to his medical records to find out because his sight was at issue because it was relevant to whether it caused the Defendant to hit the Plaintiff.
The trial court found that plaintiff had legitimate reasonable cause to believe that defendant had sight problems that could have been related to the accident and that plaintiff had “a right to look for that.”
The appellate court reversed. Plaintiff argued that “an issue” simply means relevant. The appellate court disagreed. The court held that section 8-802(4) of Illinois law applies only when a defendant affirmatively places his or her health at issue and that a plaintiff cannot waive someone else’s privilege.
The court held that “[n]either the nature of a plaintiff’s cause of action nor factual allegations in a plaintiff’s complaint waive a defendant’s physician-patient privilege.”
For a prior analysis of these legal issued in a CLE I did, see briefs we have on our website here. These cover the Missouri law as well.
This has potential implications. The holding could also be phrased as where a defendant’s health is at issue, the medical records are relevant and Plaintiff can obtain them. But what is “at issue.”? It is not simply what is relevant — but only when a defendant affirmatively places his or her health at issue.
What does it mean for a defendant to place their health at issue? In effect, only when the defendant essentially admits negligence is the Plaintiff is able to obtain the defendant’s medical records.