Burger v. Lutheran General Hospital

CHIEF JUSTICE HARRISON, dissenting:

Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (1986), prohibits defendants and their attorneys from engaging in ex parte discussions with an injured plaintiffs treating physicians. That prohibition is rooted in the right to privacy guaranteed by sections 6 and 12 of article I of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§ 6, 12). Best v. Taylor Machine Works, 179 Ill. 2d 367, 450-59 (1997). Because it is constitutionally based, the prohibition is not subject to limitation or revision by the General Assembly. The General Assembly has no power to enact legislation which is contrary to the provisions of our constitution. Tully v. Edgar, 171 Ill. 2d 297, 308 (1996); People ex rel. Chicago Bar Ass’n v. State Board of Elections, 136 Ill. 2d 513, 539 (1990) (Ryan, J., specially concurring).

When the General Assembly last attempted to abrogate the Petrillo doctrine through legislative enactment, our court correctly found the legislation to be unconstitutional and void. Best, 179 Ill. 2d 367 ; Kunkel v. Walton, 179 Ill. 2d 519 (1997). Contrary to the majority, I would reach the same conclusion with respect to subparagraphs (d) and (e) of section 6.17 of the Hospital Licensing Act (210 ILCS 85/6.17 (West 2000)). In my view, those provisions trench on constitutionally protected privacy rights no less than section 2 — 1003(a) of the Code of Civil Procedure (735 ILCS 5/2 — 1003(a) (West 1994)), as amended by the Civil Justice Reform Amendments of 1995, the statute we declared void and unenforceable in Best and Kunkel.

The majority attempts to differentiate subparagraphs (d) and (e) of section 6.17 from the now invalidated section 2—1003(a) of the Code of Civil Procedure by arguing that subparagraphs (d) and (e) of section 6.17 authorize far more limited disclosure of a patient’s medical information than did section 2—1003(a). In the context of disclosure to counsel defending personal injury claims, however, there is no meaningful distinction between the statutes. As with section 2—1003(a), subparagraphs (d) and (e) confer on defense counsel unrestricted access to all aspects of a patient’s medical history, regardless of its relevance.

When it drafted section 6.17, the legislature apparently hoped to avoid section 2—1003(a)’s constitutional infirmities by redefining ownership rights in a patient’s records to make them the property of the hospital. The idea, apparently, was that if the medical records are deemed to belong to the hospital rather than the patient, disclosure of those records to the hospital’s lawyers would amount to nothing more than the hospital sharing its own information with its own people. By definition, no improper disclosures to third parties would occur.

Although the majority has embraced this rationalization, it suffers from two fundamental flaws. First, it fails to recognize that a patient’s constitutionally protected privacy interest in his or her own medical records (see Best, 179 Ill. 2d at 458-59 ) exists regardless of who is deemed to own the physical documents in which the patient’s confidential medical information is recorded. Who owns the actual physical documents is unimportant. What matters is who has ultimate control over the medical information contained in those documents. Under our state constitution, that person is the patient. Accordingly, the legislature cannot sidestep the limitations imposed by Petrillo by decreeing that the records are the property of the hospital.

The second flaw in the majority’s approach is that it appears to assume that hospitals occupy the same position with respect to patients as do the patients’ physicians. They do not. While hospitals may employ physicians and possess an independent duty to insure that those physicians provide patients with appropriate medical care (Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 19 (1997)), hospitals do not themselves diagnose ailments or prescribe treatments. They cannot. They are corporate entities. The care is given by individual physicians, and the hospitals maintain records as a necessary service to those physicians and their patients. With respect to the physician-patient relationship, hospitals are not the doctor’s alter ego. They are a third party.

There is no question that defense counsel employed by other third parties cannot obtain medical records from a patient’s treating physician unless they utilize the discovery process authorized by Supreme Court Rule 201. Petrillo, 148 Ill. App. 3d at 591 . That being so, it would be anomalous to hold that the discovery process authorized by Supreme Court Rule 201 is not similarly required to obtain access to the medical records generated by a physician who provided care at a hospital simply because the lawyers seeking access are employed by the hospital. That, however, is precisely what the majority’s disposition permits. In the context of care provided in a hospital setting, the Petrillo doctrine has been abandoned.

In view of that result, I find it perplexing that my colleagues purport to embrace the principles underlying Kunkel, Best and Petrillo. See 198 Ill. 2d at 59-60. If they truly believed in those principles, as I do, the disposition of this case would have been straightforward. The court would have affirmed that portion of the circuit court’s judgment invalidating the challenged sections of the Hospital Licensing Act and barring any ex parte communication between hospital defense counsel or risk managers and any health-care providers for whose conduct the plaintiff was not seeking to hold the hospital vicariously liable.

The majority is also wrong to reject plaintiffs contention that subsection (e) of section 6.17 violates our state’s constitutional prohibition against special legislation. My colleagues assess the validity of the law under a rational basis test on the grounds that “subsection (e) of section 6.17 neither affects a fundamental right nor involves a suspect classification.” 198 Ill. 2d at 60. The problem with the majority’s view is that its premise is incorrect. The law does affect a fundamental right.

One’s physical health and medical condition are among the most intimate and personal aspects of one’s life. Our court has specifically held that the right to privacy regarding such matters is a fundamental right. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 35 (1996); People ex rel. Tucker v. Kotsos, 68 Ill. 2d 88, 97 (1977). That fundamental right to privacy necessarily embraces the right to privacy in one’s medical records, which this court has previously recognized. Indeed, as we held in Kunkel, 179 Ill. 2d at 537 , “[t]he confidentiality of personal medical information is, without question, at the core of what society regards as a fundamental component of individual privacy.”

Subsection (e) of section 6.17 directly affects a patient’s fundamental right of privacy in his personal medical information by authorizing when, by whom and to whom such information can be disclosed by a hospital’s medical staff, agents and employees. Because the statute does affect a fundamental right, it must be subjected to strict scrutiny. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 368 (1986); Kotsos, 68 Ill. 2d at 97 . Statutes affecting fundamental rights and subject to strict scrutiny are presumptively invalid. Village of Oak Lawn v. Marcowitz, 86 Ill. 2d 406, 416 (1981). For a statute to survive strict scrutiny, it must advance a compelling state interest and be narrowly tailored to serve that compelling interest. Lulay v. Lulay, 193 Ill. 2d 455, 470 (2000).

To the extent that subsection (e) of section 6.17 permits unrestricted disclosure of a patient’s confidential medical information to a hospital’s lawyers, the statute does not meet this exacting standard. Such unrestricted access is not necessary to enable the hospital to meet statutory reporting obligations and is not necessary to assure quality health care. Defense lawyers are not physicians, after all. They do not provide medical treatment, they do not help prepare or present morbidity and mortality reports, and it is not their function to establish health-care standards.

With respect to the hospital’s lawyers, the primary purpose of subsection (e) of section 6.17 is to assist them in representing the institution against possible malpractice claims. While that is an entirely legitimate objective, the needs of a hospital’s lawyers in investigating personal injury claims are no different and no more compelling than those of other defense counsel, who are required by the Petrillo doctrine to conduct their discovery in accordance with the formal proceedings set forth in our rules of court. Accordingly, there is no basis for affording them special treatment. The exemption from Petrillo created by subsection (e) for a hospital’s lawyers must therefore fall.

For the foregoing reasons, I dissent.

JUSTICES FITZGERALD and KILBRIDE join in this dissent.