Doe v. Burke Wise Morrissey & Kaveny

234 N.E.3d 124

2023 IL 129097

John DOE, Appellee,

v.BURKE WISE MORRISSEY & KAVENY, LLC, et al., Appellants.

(Docket No. 129097)

Supreme Court of Illinois.

Filed November 30, 2023

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Margaret A. Brennan, Judge, presiding.

Kimberly A. Jansen, Katherine Schnake, and Johnathon Koechley, of Hinshaw & Culbertson LLP, of Chicago, for appellants.

Thomas M. Paris, of Chicago, for appellee.

Steve Grossi, of Yvonne M. Kaminski & Associates, of Chicago, for amicus curiae Illinois Defense Counsel.

Veronique Baker, Jennifer Shaw, and Laurel Spahn, of Illinois Guardianship & Advocacy Commission, of Hines, and Sandra Kopels, of the School of Social Work at the University of Illinois at Urbana\u0002Champaign, of Urbana, amici curiae.

OPINION

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, John Doe,¹ filed a multicount complaint against the defendants, Burke Wise Morrissey & Kaveny, LLC, and Elizabeth A. Kaveny, alleging that they violated the Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 2014)). The defendants filed a motion to dismiss count I of the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)), which the Cook County circuit court granted. The appellate court reversed the decision of the circuit court and remanded the cause to the circuit court for further proceedings. 2022 IL App (1st) 211283, ¶ 22, 463 Ill.Dec. 303, 209 N.E.3d 421.

¶ 2 We allowed the defendants’ petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. Oct. 1, 2021). We also allowed the Legal Advocacy Service and Professor Sandra Kopels to file an amicus curiae brief on behalf of the plaintiff’s position, and we allowed the Illinois Defense Counsel to file an amicus curiae brief on behalf of the defendants’. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For the following reasons, we now reverse the judgment of the appellate court and affirm the judgment of the circuit court.

¶ 3 I. BACKGROUND

¶ 4 A. Medical Malpractice Proceedings

¶ 5 The defendants represented Doe in a medical malpractice action against a hospital and other medical staff. During that litigation, the evidence established that, after Doe was admitted to the emergency room of the hospital, he attempted suicide by stabbing himself multiple times. In the medical malpractice litigation, the hospital sought a qualified protective order under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d (2012); 45 C.F.R. §§ 160.103, 164.501 (2016)) to gain access to Doe’s protected health information. The hospital also requested a subpoena pursuant to HIPAA. During the trial, Doe testified in detail about his suicide attempt, his injuries therefrom, and his diagnosis. At the conclusion of the jury trial in the medical malpractice action, Doe was awarded $4.2 million. Subsequently, in May 2015, the defendants issued a press release related to the medical malpractice trial describing Doe’s suicide attempt, the resulting injuries, and his diagnoses. Additionally, Kaveny commented on the medical malpractice case and Doe’s history for an article published in the Chicago Daily Law Bulletin (Law Bulletin).

¶ 6 B. Circuit Court Proceedings Giving Rise to the Issue Before This Court

¶ 7 On May 5, 2017, Doe filed a multicount complaint against the defendants, with count I being the only count at issue in this appeal. In count I, Doe alleged that the defendants violated the Act by wrongfully disclosing confidential information about his diagnoses as well as his mental health. According to the complaint, at the time Kaveny disclosed confidential information about Doe (which was contained in the Law Bulletin article and other publications), she did not have his informed consent. Doe alleged that the defendants’ wrongful disclosure of his confidential health information proximately caused the damages he sustained and, therefore, the defendants were liable.

¶ 8 The defendants moved to dismiss count I of Doe’s complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)). The defendants argued, in part, that the Act did not apply to them because there was no therapeutic relationship between them and Doe. They also argued that the information disclosed in the press release was public information because Doe testified to the same information during the medical malpractice trial. Additionally, the defendants asserted that Doe waived any confidentiality in his medical records because he put his medical condition at issue in the medical malpractice litigation.

¶ 9 Doe responded to the motion to dismiss, arguing that the Act prohibited the release of any information identifying a recipient of mental health services and that the information disclosed in the press release did just that. Doe maintained that, because the defendants redisclosed his protected mental health information, they violated the Act (740 ILCS 110/1 et seq. (West 2014)).

¶ 10 On April 5, 2018, after a hearing, the circuit court dismissed count I with prejudice. The circuit court reasoned that a therapeutic relationship was required for the Act to apply. The circuit court also reasoned that the disclosure "was following a public trial and trials are public." On May 15, 2018, Doe filed an amended complaint and presented new allegations against the defendants for his same cause of action under the Act. The circuit court struck the claim without leave to replead.

¶ 11 On April 13, 2020, Doe filed a motion to reconsider the orders of the circuit court dismissing count I of his complaint and striking his amended complaint. Doe argued, in part, that the defendants violated the qualified protective order under HIPAA in the medical malpractice case and that violating that qualified protective order also violated the Act. Additionally, Doe indicated that the Act was amended in 2015, making it clearer that a therapeutic relationship is not an element of a cause of action under the Act. On August 13, 2020, after a hearing, the circuit court denied Doe’s motion to reconsider, finding that the claim under the Act was dismissed with prejudice.

¶ 12 On August 31, 2021, Doe filed a motion to voluntarily dismiss a remaining count in his complaint, as all of the other counts had been previously dismissed with prejudice. On September 9, 2021, the circuit court dismissed the remaining count without prejudice. Doe subsequently filed an appeal from the circuit court’s dismissal of his cause of action.

¶ 13 C. Appellate Court Proceedings

¶ 14 Doe filed a timely appeal challenging the circuit court’s dismissal of his cause of action against the defendants for wrongfully disclosing confidential information about his diagnoses as well as his mental health in violation of the Act (740 ILCS 110/1 et seq. (West 2014)). The appellate court reversed the decision of the circuit court and remanded the cause for further proceedings. 2022 IL App (1st) 211283, ¶ 22, 463 Ill.Dec. 303, 209 N.E.3d 421. The appellate court reasoned that "Doe’s complaint sufficiently alleged a cause of action under the Act." Id. ¶ 15. The appellate court stated that the information the defendants disclosed in the press release and the Law Bulletin were records and communications under the Act. Id. Further, these communications revealed that Doe received mental health services, and they also revealed his diagnoses. Id.

¶ 15 The appellate court also found that the fact that the defendants did not provide Doe with mental health services does not "relieve them of potential liability." Id. According to the appellate court, Doe’s consent to disclose his mental health information in the medical malpractice litigation did not extend to the alleged redisclosure of his information in the subsequent press release and Law Bulletin. Id. ¶ 16. Instead, the appellate court found that this redisclosure was subject to section 5(d) of the Act (740 ILCS 110/5(d) (West 2014)), requiring that. Doe "specifically consent[ ] to such redisclosure." 2022 IL App (1st) 211283, ¶ 16, 463 Ill.Dec. 303, 209 N.E.3d 421. The appellate court declined to follow this court’s decision in Novak v. Rathnam, 106 Ill. 2d 478, 484, 88 Ill.Dec. 608, 478 N.E.2d 1334 (1985), instead finding that the case on review was distinguishable from Novak because Doe’s mental health information shared at the medical malpractice trial was "subject to a qualified protective order under HIPAA." 2022 IL App (1st) 211283, ¶ 17, 463 Ill.Dec. 303, 209 N.E.3d 421. Relying on Haage v. Zavala, 2020 IL App (2d) 190499, ¶ 9, 442 Ill.Dec. 136, 158 N.E.3d 1171, the appellate court found that

"[qualified protective] orders restrict how health information is used, prohibiting ‘ "the parties from using or disclosing [the information] for any purpose other than the litigation or proceeding for which such information was requested," ’ and requiring ‘ "the return to the covered entity or destruction of [the information] *** at the end of the litigation or proceeding." ’ " 2022 IL App (1st) 211283, ¶ 17, 463 Ill.Dec. 303, 209 N.E.3d 421 (quoting Haage, 2020 IL App (2d) 190499, ¶ 9, 442 Ill.Dec. 136, 158 N.E.3d 1171, quoting 45 C.F.R. § 164.512(e)(1)(v)(A), (B) (2018)).

¶ 16 Additionally, the appellate court was unpersuaded by the defendants’ reliance on Quigg v. Walgreen Co., 388 Ill. App. 3d 696, 328 Ill.Dec. 759, 905 N.E.2d 293 (2009), for the proposition that "the Act only included those persons entering into a therapeutic relationship with clients and only those persons could be liable." 2022 IL App (1st) 211283, ¶ 19, 463 Ill.Dec. 303, 209 N.E.3d 421. Instead, the appellate court found that there was no legal support for the argument that only therapists or agencies engaging in therapeutic relationships can be held liable under the Act. Id....