NO. 3--95--0568
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
D.C., ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Plaintiff-Appellant, ) Will County, Illinois
)
v. ) No. 94 L 7473
S.A. and J.A., JR., ) Honorable
) Herman Haase,
Defendant-Appellees. ) Judge Presiding
PRESIDING JUSTICE BRESLIN delivered the opinion of the court:
This interlocutory appeal raises the question whether a
plaintiff who files a negligence lawsuit introduces his mental
condition as an element of his claim and thereby waives his
privilege to refuse disclosure of mental health records under the
Mental Health and Developmental Disabilities Confidentiality Act
(Mental Health Act) (740 ILCS 110/1 et seq. (West 1992)). We
hold that a plaintiff does not waive this privilege by filing a
negligence action. Therefore, we reverse the circuit court's
judgment.
In June 1992, the plaintiff, D.C., was injured when he was
struck by an automobile at an intersection. The plaintiff spent
several days in the hospital and thereafter sought treatment at a
mental health facility. He then brought suit against S.A., as
the driver of the automobile, and J.A., Jr., as S.A.'s principal,
seeking damages for injuries suffered as a result of the
accident. The plaintiff's complaint alleged that he was in the
exercise of ordinary care for his own safety at the time of the
accident; otherwise, however, the complaint made no mention of
the plaintiff's mental state at the time of the accident.
Moreover, the plaintiff did not include within his claim for
damages any injuries to his mental health or expenses incurred
from his stay at the mental health facility.
The defendants filed an answer, affirmative defenses, and a
counter-complaint, seeking compensation for damage to their
automobile. The affirmative defenses and counter-complaint
alleged that the plaintiff failed to exercise ordinary care for
his safety. The plaintiff denied these allegations.
During discovery, the plaintiff produced a letter from his
treating physician which raised the possibility that the
plaintiff intentionally walked in front of the defendants' car in
a suicide attempt. On the basis of this information, the
defendants moved to compel production of the psychiatric records
compiled during the plaintiff's stay at the mental health
facility. The plaintiff refused disclosure pursuant to the
psychotherapist-patient privilege contained in section 10 of the
Mental Health Act (740 ILCS 110/10 (West 1992)). The plaintiff
did, however, submit the records to the circuit court for an in
camera inspection.
After reviewing the records in camera, the circuit court
determined that while many of the records in question were
privileged, there was a category of records which "refer to how
the patient got into the hospital and what led up to this
particular incident, and there are things there that I think do
relate pretty directly to this accident." The court also found
that the plaintiff introduced his mental condition either by
filing the lawsuit or by alleging that he was in the exercise of
due care for his own safety. The court certified this issue for
interlocutory review, which we granted pursuant to Supreme Court
Rule 308(a) (134 Ill. 2d 308(a)).
The sole issue for our review is whether a plaintiff who
files a negligence suit waives his privilege to refuse the
disclosure of mental health records.
This question requires us to construe section 10 of the
Mental Health Act. The task of statutory construction is to
ascertain and give effect to the legislature's intent. People v.
Scharlau, 141 Ill. 2d 180, 565 N.E.2d 1319 (1990). If the
legislature's intent is clear from the statute's language, the
court must confine its inquiry to a consideration of that
language and must not look to extrinsic aids. In re Marriage of
Logston, 103 Ill. 2d 266, 469 N.E.2d 167 (1984). If, however,
statutory language is susceptible of more than one
interpretation, the court may look beyond the language to
consider the purposes to be served by the statute. Sisters of
Third Order of St. Francis v. State ex rel. Barra, 151 Ill. App.
3d 875, 503 N.E.2d 1069 (1987). Questions of statutory
construction are questions of law. Wright v. Chicago Municipal
Employees Credit Union, 265 Ill. App. 3d 1110, 639 N.E.2d 203
(1994).
Section 10 of the Mental Health Act provides that in any
civil proceeding a recipient of mental health services may refuse
to disclose the records of such services. 740 ILCS 110/10(a)
(West 1992). If, however, a recipient introduces his mental
condition as an element of his claim or defense, then the records
are subject to disclosure, provided certain other conditions are
met. See 740 ILCS 110/10(a)(1) (West 1992). The question we must
answer is whether a plaintiff who files a negligence lawsuit
"introduces his mental condition as an element of his claim."
The court in Webb v. Quincy City Lines, Inc., 73 Ill. App.
2d 405, 219 N.E.2d 165 (1966) held that a plaintiff in a personal
injury action did not introduce her mental condition as an
element of her claim by seeking damages for pain and suffering.
The Webb court read the exception's language narrowly in holding
that the privilege existed unless the plaintiff specifically made
her condition a part of her claim. The court went on to hold
that a general allegation of pain and suffering did not rise to
the level of specificity required to effectuate a waiver of the
privilege. 73 Ill. App. 2d at 408-9, 219 N.E.2d at 167. To the
same effect is Tylitzki v. Triple X Service, Inc., 126 Ill. App.
2d 144, 261 N.E.2d 533 (1970) (plaintiff must "affirmatively"
place mental condition at issue to effect waiver).
The plaintiff's mental condition in Webb was raised in
reference to the issue of damages. In this case, the plaintiff's
condition bears upon the issue of liability. No court has yet
applied the Webb court's rationale where the mental condition in
question was relevant to the issue of liability. However, the
court in Maxwell v. Hobart Corp., 216 Ill. App. 3d 108, 576
N.E.2d 268 (1991), did decide that an implied waiver may be found
where the plaintiff's mental condition is relevant to the
liability issue in a strict products liability action. But we
disagree with the Maxwell court's reasoning and therefore decline
to apply it to actions involving negligence.
The plaintiff in Maxwell was injured when his hand became
caught in a waste equipment machine. He sued the machine's
manufacturer under a strict products liability theory, but
apparently made no mention of his own mental condition in the
complaint. Through discovery, the defendant found that the
plaintiff may have been intoxicated at the time of the accident,
and therefore requested records pertaining to the plaintiff's
treatment for alcoholism. 216 Ill. App. 3d at 109-10, 576 N.E.2d
at 269.
Although the Maxwell court held that the Mental Health Act
did not govern records relating to treatment for alcoholism, it
nonetheless considered whether § 10's exception would have
applied if the records had been governed by the Act. The court
determined that the plaintiff impliedly introduced his
"physiological and biological condition" at the time of the
accident by filing the strict liability action. 216 Ill. App. 3d
at 113, 576 N.E.2d at 271. This determination was based upon
three separate arguments: first, that a plaintiff impliedly
introduces his mental condition by alleging that a defendant
proximately caused his injuries; second, that a plaintiff's
comparative fault is relevant in strict liability cases; and
third, that plaintiffs who initiate litigation cannot use the
privilege as a shield when mental condition is a "critical
consideration" in the case. 216 Ill. App. 3d at 113, 576 N.E.2d
at 271. None of these arguments are persuasive.
The Maxwell court's first argument fails because, although a
plaintiff's contributory negligence may be a proximate cause of
his injuries, the plaintiff's only burden is to prove that the
defendant's acts proximately caused his injuries. The
plaintiff's actions become relevant only if the defendant raises
the issue of comparative negligence. See Casey v. Baseden, 111
Ill. 2d 341, 490 N.E.2d 4 (1986); Long v. City of New Boston, 91
Ill. 2d 456, 440 N.E.2d 625 (1982). It follows that a plaintiff
may recover in a negligence action without calling into question
his own actions at the time of the accident. Accordingly, we
cannot agree that a plaintiff necessarily raises his mental
condition as an element of his claim by alleging that the
defendant's conduct proximately caused his injuries. See
generally W. Keeton, Prosser & Keeton on Torts § 65, at 452 (5th
ed. 1984).
As to the second argument, we agree that a plaintiff's
mental condition may be relevant to the issue of comparative
negligence. But the test for whether a recipient has waived his
privilege is not whether the privileged information is relevant;
instead, it is whether the recipient has introduced his condition
as an element of his claim. Therefore, waiver cannot be premised
on the degree to which mental health records are relevant to the
proceedings for which they are sought.
The Maxwell court's third argument is that plaintiffs should
not be allowed to use the Mental Health Act's privilege to bar
disclosure of evidence bearing on "critical considerations" in
the cases they initiate. The defendants in the case at bar echo
this argument when they suggest that plaintiffs should not be
able to sue other people for injuries caused by their own suicide
attempts "and then suppress any evidence of their suicidal
intent." The gist of this argument seems to be that recipients
who initiate litigation should not have the same access to the
Mental Health Act's privilege as do recipients who defend
actions.
The Mental Health Act's privilege applies unless the
recipient introduces his mental condition as an element of his
claim or defense. We do not believe the legislature would have
made reference to a recipient's "claim" had it not intended for
plaintiffs to assert the privilege. Moreover, regardless of
whether a plaintiff or defendant asserts the privilege, its
successful application may result in the exclusion of relevant
evidence. In every case, the exclusion of relevant evidence
creates the possibility that liability may fall upon the party
other than whom it may have fallen upon had the evidence been
admitted. Therefore, it is no more problematic for a plaintiff
to assert the privilege than it is for a defendant to do so.
Apart from the arguments raised in Maxwell, there is no
basis under section 10 of the Mental Health Act for the
application of different standards depending on whether a
recipient's mental condition is relevant to damages or to
liability. Section 10's exception applies whenever a recipient
introduces his mental condition as an element of his claim. Both
damages and liability are elements of a negligence plaintiff's
claim. Therefore, if the Webb and Tylitzki courts were correct
in holding that a mental condition may be introduced only through
a specific or affirmative statement of the condition, this rule
must apply regardless of whether the mental condition bears on
the question of damages or liability.
We see no reason to depart from the rule in Webb and
Tylitzki, which comports with the case law in other
jurisdictions. In both Dillenbeck v. Hess, 73 N.Y.2d 278, 536
N.E.2d 1126, 539 N.Y.S.2d 707 (1989) and Clark v. District Court,
Second Judicial District, City and County of Denver, 668 P.2d 3
(Colo. 1983), it was held that a waiver of confidentiality may be
found in either the damages or liability context only where a
litigant affirmatively places his condition at issue. The Clark
court explained:
"When the privilege holder pleads a physical or mental
condition as the basis of a claim or as an affirmative
defense, the only reasonable conclusion is that he
thereby impliedly waives any claim of confidentiality
respecting that same condition. The privilege holder
under these circumstances has utilized his physical or
mental condition as the predicate of some form of
judicial relief, and his legal position as to that
condition is irreconcilable with a claim of
confidentiality * * *." 668 P. 2d at 10; cf. State v.
Valley, 153 Vt. 380, 571 A.2d 579 (1989) (criminal
defendant who pleads insanity defense places mental
condition at issue).
It follows that where a litigant seeks relief that is not
predicated upon his own mental condition, he does not lose the
right to assert the privilege.
In view of the foregoing, we hold that a plaintiff-recipient
does not waive his privilege to refuse disclosure of mental
health records unless he specifically or affirmatively raises the
condition as an element of his claim. Because the filing of a
negligence action does not require a plaintiff to specifically or
affirmatively plead his mental condition, we conclude that a
plaintiff does not necessarily introduce his mental condition as
an element of his claim.
In the case at bar, the plaintiff did not plead his mental
condition in an effort to establish either the defendants'
liability or injuries to his mental health. He did allege that
he was in the exercise of due care for his own safety at the time
of the accident, but there are two reasons why this allegation is
insufficient to constitute a waiver. First, the general
allegation that one was in the exercise of due care for his own
safety does not rise to the level of specificity required to
effect a waiver. Second, this allegation is not necessary to the
plaintiff's claim. See Long v. City of New Boston, 91 Ill. 2d
456, 440 N.E.2d 625 (1982) (negligence plaintiff need not plead
freedom from contributory negligence). Therefore, the plaintiff
may amend his complaint to drop this allegation and still prevail
on his claim.
We are left, then, to conclude that the only manner by which
the plaintiff's mental condition becomes an issue in this case is
through the defendants' attempt to establish comparative
negligence. Section 10 of the Mental Health Act cannot be read
to permit defendants to discover plaintiffs' mental health
records in order to prove comparative negligence. For, if the
legislature had so intended, it would have joined those states
which allow any party, not just the recipient, to introduce the
recipient's mental condition as an element of a claim or defense.
See, e.g., R.K. v. Ramirez, 38 Tex. Sup. Ct. J. 52, 887 S.W.2d
836 (1994); State v. Valley, 153 Vt. 380, 571 A.2d 579 (1989).
As things stand, however, only the recipient may waive his
privilege under the Mental Health Act. See Pritchard v. Swedish-
American Hospital, 191 Ill. App. 3d 388, 547 N.E.2d 1279 (1989).
Consequently, the defendants' attempt to introduce the
plaintiff's mental condition cannot constitute a waiver of his
privilege.
The result in this case may be perceived in some quarters as
an affront to justice and common sense. In other quarters it
might be viewed as the price society must pay to protect the
psychotherapist-patient relationship. Cf. Jaffee v. Redmond, ___
S.Ct. ___, 1996 WL 315841 (1996) (court recognizes common law
psychotherapist-patient privilege under Rule 501 of the Federal
Rules of Evidence). But regardless of where persons come down on
this issue, our holding is compelled by the plain language of
section 10 of the Mental Health Act, and no one can dispute that
the legislature has the power, through the enactment of
evidentiary privileges, to inhibit the truth-seeking process to
protect certain relationships. It is for the legislature, and
not the courts, to determine whether the Mental Health Act has
tilted the balance between truth-seeking and the protection of
patient-psychotherapist relationships too far in either
direction.
For the foregoing reasons, the judgment of the circuit court
of Will County is reversed, and the cause is remanded for further
proceedings.
Reversed and remanded.
SLATER, J., concurs.
LYTTON, J., dissents.
D.C. ) Appeal from the Circuit
Court
) of the 12th Judicial
Circuit
Plaintiff-Appellant, ) Will County, Illinois
v. ) No. 94 L 7473
S.A. and J. A., JR., ) Honorable
) Herman Haase
Defendants-Appellees. ) Judge, Presiding
JUSTICE LYTTON dissenting:
I dissent. Section 10 of the Mental Health and
Developmental Disabilities Act (Mental Health Act) (740 ILCS
110/10 (West 1992)) provides that a recipient of mental health
services has a privilege to refuse to disclose and to prevent the
disclosure of his records and communications, except where the
recipient introduces his condition as an element of his claim or
defense. The majority treats this privilege as absolute and
concludes that plaintiff's records are privileged even though
they may indicate that the incident which gave rise to the
lawsuit could have been caused by plaintiff's failed attempt to
commit suicide. I cannot agree.
"The cardinal rule of statutory construction is to give
effect to the language and intent of the legislature. * * * In
considering legislative intent, courts 'must presume that the
legislature did not intend absurdity, inconvenience or injustice,
and select an interpretation of the statute which leads to
logical results and avoids that which would be absurd.'" People
v. Acevedo, 275 Ill. App. 3d 420, 425-26, 656 N.E.2d 118, 122-23
(1995), quoting People v. Liberman, 228 Ill. App. 3d 639, 647,
592 N.E.2d 575, 581 (1992). "Moreover, a court may properly
consider not only the language used in the statute but also the
reason and necessity for the law, the evil sought to be remedied,
and the purpose to be achieved." Acevedo, 275 Ill. App. 3d at
425, 656 N.E.2d at 122-23.
Section 10 of the Mental Health Act serves the noble purpose
of protecting the confidential records and communications of
mental health patients. Unfortunately, today the majority has
invited the legislature to narrow the parameters of section 10:
"The result in this case may be perceived in some
quarters as an affront to justice and common sense * *
* our holding is compelled by the plain language of
section 10 of the Mental Health Act * * *."
While I agree that the majority has reached a result that is "an
affront to justice and common sense," I do not agree that this
result was "compelled" by the language of the statute.
By their very nature, privileges inhibit the fact-finding
process. Nevertheless, they serve other important functions,
such as protecting interests and relationships regarded to be of
"sufficient social importance to justify some sacrifice of
availability of evidence relevant to the administration of
justice." 1 J. Strong, McCormick on Evidence §72, at 269 (4th
ed. 1992).
Yet, no privilege is absolute. Even the attorney-client
privilege -- one of the oldest privileges of confidentiality known
to the common law, often described as essential to the functioning
of the adversary system -- is inapplicable where a client seeks or
obtains the services of an attorney in furtherance of criminal or
fraudulent activities. In re Marriage of Decker, 153 Ill. 2d 298,
312-13, 606 N.E.2d 1094, 1101 (1992). Recently, while recognizing
the psychotherapist privilege for litigation in federal courts, the
United States Supreme Court indicated that there are "limits on
confidentiality" (Jaffee v. Redmond, ___ U.S. ___, ___, ___ L. Ed.
2d ___, ___, ___ S. Ct. ___, ___ (1996)) and "situations in which
the privilege must give way" (Jaffee, ___ U.S. at ___, ___ L. Ed.
2d at ___, ___ S.Ct. at ___).
This case presents one situation where the principles of due
process and fundamental fairness mandate that the privilege must
give way. Since plaintiff's records may reveal that this lawsuit
could be a fraudulent scheme to profit from plaintiff's own failed
suicide attempt, I believe that such information must be revealed
even though it might otherwise be deemed confidential.
In Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 398
N.E.2d 517, 422 N.Y.S.2d 911 (1979), Robert Prink fell from his
thirty-sixth floor office, and his widow filed suit alleging that
the building's owners and architects were negligent in the design
and installation of an window alcove desk. The death certificate
noted that, according to Prink's psychiatrist, decedent had been
tense and depressed. The court of appeals concluded that under
such circumstances, the unfairness of permitting the plaintiff to
succeed by hiding behind the privilege could not be tolerated. "To
hold otherwise is to ignore the realities of the factual situation
and to come perilously close to a taking of defendants' property
without due process of law." Prink, 48 N.Y.2d at 317, 398 N.E.2d
at 517, 422 N.Y.S.2d at 916.
The majority ignores these concerns, instead holding that
"[i]t is for the legislature, and not the courts, to determine
whether the Mental Health Act has tilted the balance * * *." I
cannot believe that the absurd outcome of this appeal reflects the
intent of the Illinois legislature. But, even assuming that the
legislature intended these results, I do not believe that the
judiciary can so easily wash its hands of responsibility.
Certainly, civil defendants are entitled to due process before
their property is taken (U.S. Const., amend XIV; Ill. Const. 1970,
art. 1, §2) and the right to find remedies and justice in the law
(Ill. Const. 1970, art. 1, §12).
This is a landmark case. The majority departs from the
longstanding practice of the courts of prohibiting litigants from
using the "shield" of a privilege as a "sword" against opponents.
See United States v. Rylander, 460 U.S. 752, 758, 75 L. Ed. 2d 521,
529, 103 S. Ct. 1548, ____, (1983) (privilege against self-
incrimination is not a sword); MacGreal v. Taylor, 167 U.S. 688,
701, 42 L. Ed. 326, 333, ___ S. Ct. ___, ___ (1897) (privilege of
infancy is intended to be used "simply as a shield to protect" and
not "a sword to be used to the injury of others"). This is not a
situation wherein the courts are deferring to the legislature's
determination to merely shield certain information from involuntary
disclosure. Here, the majority may be allowing plaintiff to abuse
the psychotherapist-patient privilege by using it as a sword
against the defendants.
Unless the majority's decision is reversed by a higher court,
the judicial system may unwittingly become a co-participant in
plaintiff's apparent scheme to harass and defraud the defendants.
I cannot concur in such a result.