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Hospitals and other medical care providers are routinely served with subpoenas for their patients’ medical records. Medical records are generally privileged under the physician-patient privilege and under the federal Health Insurance Portability and Accountability Act (“HIPAA”). However, in most situations, providers can comply with subpoenas because the privilege is waived when a party to litigation places his physical condition in issue.

The standards are stricter, however, when the records subpoenaed involve mental health care. Both HIPAA and the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq. (the “Act”), provide heightened standards before mental health records can be disclosed. This was brought to stark relief in the recent Illinois Appellate Court decision of Garton v. Pfeifer, 2019 IL App (1st) 180877 (May 13, 2019), in which the court ruled that NorthShore University Medical Center was liable for damages because it complied with a subpoena that did not comport with the terms of the Act. 

The underlying suit in Garton was a family law proceeding, in which Garton filed a petition for indirect civil contempt against his ex-wife, asserting that she was violating various orders regarding their minor children. The wife’s attorney, Pfeifer, issued a subpoena to NorthShore University Health System (“NorthShore”), seeking Garton’s mental health records. NorthShore responded to the subpoena by delivering the records to the judge presiding over the contempt proceedings. The judge ordered the records sealed, then ordered that the subpoena be reissued to NorthShore with notice to Garton and NorthShore and an opportunity to file written objections to an in camera inspection of the records.

The wife’s attorney then faxed a copy of the original subpoena to NorthShore, along with a copy of the court’s order. NorthShore responded by sending the records to the attorney’s office, even though the subpoena directed that the records be delivered to the court. Subsequently, the attorney handed the records to the court and explained that his law partner had opened the envelope, saw that the contents related to the plaintiff and looked no further. Subsequently, the court heard argument and denied the request for release of the records, denied a motion for an in camera hearing and ordered the records sealed. 

Then, the plaintiff brought suit against the ex-wife, Pfeiffer the attorney who issued the subpoena and NorthShore, alleging that they had devised a scheme to publicly disclose his health records, violated the Act by issuing the subpoena and by providing records pursuant to the subpoena. The suit further alleged that this conduct caused him to expend substantial sums in legal fees to resist disclosure of the records and that he had suffered mental and emotional distress and other losses. 

The trial court granted summary judgment for the defendants and the plaintiff appealed. On appeal, the court affirmed the summary judgment order in favor of the ex-wife, but reversed the remainder and directed the court to enter summary judgment against the attorney and NorthShore and remanded them for a trial on proximate cause and damages. In reaching its decision, the court noted that the Act imposes “stringent protections on the disclosure of mental health records for litigation purposes.”  2019 IL App (1st) 180877, ¶17. The Act specifies 12 situations in which mental health records may be disclosed in litigation. The primary situation is that mental health records may be disclosed in a civil, criminal or administrative proceeding where the mental health recipient has placed their “mental condition or any aspect of his services received for such condition as an element of his claim or defense.” 740 ILCS § 110/10(a)(1).  However in these situations, the records are subject to disclosure only after the court finds, after an in camera examination of testimony or other evidence, that it is “relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence sought to be established by the facts sought to be established by the evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm.”  Id.

The Act further specifies that no party to any proceeding seeking the disclosure of mental health records shall serve a subpoena for such records unless the subpoena is accompanied by a written order issued by a judge authorizing the disclosure of the records or the issuance of the subpoena. 740 ILCS §110/10(d).  No such order may be entered without written notice of the motion to the recipient and to the recipient’s treatment provider.  Id.  Moreover, no person may comply with a subpoena that is not accompanied by a written order authorizing the issuance of the subpoena. Id. Finally, each subpoena must include the following language:

No person shall comply with a subpoena for mental health records or communications pursuant to Section 10 of the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/10, unless the subpoena is accompanied by a written order that authorizes the issuance of the subpoena and the disclosure of records or communications or by the written consent under Section 5 of that Act of the person whose records are being sought.

Any person aggrieved by a violation of the Act may sue for damages and may be awarded reasonable attorneys’ fees. 740 ILCS § 110/15.   

In Garton, neither the attorney who issued the subpoena nor NorthShore complied with the Act in issuing or responding to the subpoena. The plaintiff had not introduced his mental condition or any aspect of the services he received as an element of any claim or defense. The attorney who issued the subpoena argued that the mental health records were relevant to his credibility as a witness, but the court rejected this argument, stating that the Act “does not contemplate the disclosure of mental health records for the purposes of attacking the credibility of a witness.”  Garton, 2019 IL App (1st) 180877, ¶21.  Moreover, both the issuance of the subpoena and NorthShore’s response to it “were in direct violation of the Act” because they:

ignored every applicable provision of section 10(d) [740 ILCS §110/10(d)] of the Act: (1) the subpoena was issued without a written order of the circuit court; (2) because no order was even sought, no notice of any motion seeking such an order was provided to either Ryan or NorthShore; (3) because no motion had been filed, no hearing was held at which any objections could be made by Ryan or the treatment provider prior to the issuance of the subpoena; (4) NorthShore complied with the subpoena despite the requirement that the subpoena be accompanied by a written court order authorizing the issuance of the subpoena; and (5) the subpoena lacked the mandatory disclosure language required by the Act.   

Id. at ¶ 22.

The court further rejected the arguments of the attorney and NorthShore that the plaintiff was not an aggrieved party and could not recover damages. The court found that since the plaintiff’s records had been disclosed when NorthShore complied with the subpoena, he was an aggrieved party.  The court rejected the argument that the plaintiff was not aggrieved because the records were not publicly disclosed or because he did not suffer an adverse ruling, finding that any disclosure that was not in compliance with the Act caused the mental health recipient to be an aggrieved person. There was no exception merely because the health care provider provided the subpoenaed records directly to the court if the Act was not strictly complied with. Id. at ¶35. The court further found that the plaintiff’s testimony that he had suffered stress, mental anguish and anxiety due to the disclosure was sufficient to create a triable issue of fact as to whether he had suffered damages.

Garton serves as a reminder for health care providers that mental health records may not be disclosed, even pursuant to a subpoena unless there has been strict compliance with the terms of the Act.  Before any compliance with such a subpoena, the subpoena must be accompanied by a court order, and the subpoena must include the statutory language. If either of these requirements is not met, the health care provider should not turn over any records.

Bill McVisk Tressler

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