Illinois Official Reports

Appellate Court

Sparger v. Yamini, 2019 IL App (1st) 180566

Appellate Court 

Caption

JEFF SPARGER, as Father and Next Friend of KIERSTEN 

SPARGER, a Minor, Plaintiff-Appellant, v. BAKHTIAR YAMINI, 

M.D., and THE UNIVERSITY OF CHICAGO MEDICAL CENTER, 

an Illinois Corporation, Defendants-Appellees (TIMOTHY I. 

McARDLE, Contemnor-Appellant).

District & No. First District, First Division 

No. 1-18-0566

Filed October 28, 2019

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 16-L-12475; the 

Hon. John Ehrlich, Judge, presiding.

Judgment Reversed and remanded. Contempt order vacated.

Counsel on

Appeal

Timothy I. McArdle and Michael S. McArdle, of Nolan Law Group, 

of Chicago, for appellants.

Mark M. Brennan, Kenneth C. Hoffmann, and Anthony J. Longo, of 

Brennan Burtker LLC, of Chicago, for appellees.

Panel JUSTICE WALKER delivered the judgment of the court, with 

opinion.

Justices Pierce and Mikva concurred in the judgment and opinion.
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OPINION

¶ 1 Plaintiff Jeff Sparger, on behalf of his daughter Kiersten Sparger, filed a complaint against 

defendant physician, alleging the physician’s negligence in repairing a spinal fluid leak 

following Kiersten’s spinal cord surgery resulted in Kiersten developing meningitis. A 

neuropsychologist evaluated Kiersten to determine if the meningitis affected her “cognitive, 

emotion, and behavioral presentation.” The neuropsychologist’s report stated that Kiersten 

presented signs and symptoms consistent with a traumatic brain injury. Specifically, Kiersten 

exhibited several cognitive impairments and had a change in personality causing her to become 

emotionally volatile. Defendant requested Kiersten’s medical records from two hospitals she 

visited prior to her surgery. Plaintiff refused to disclose the records, arguing they were 

privileged pursuant to the Mental Health and Developmental Disabilities Confidentiality Act 

(Mental Health Act) (740 ILCS 110/1 et seq. (West 2018)). Defendants filed a motion to 

compel, contending that because the report concluded Kiersten’s injury affected her emotional 

presentation, plaintiff placed Kiersten’s mental health at issue and therefore needed to disclose 

Kiersten’s mental health records. After an in camera inspection of the records, the trial court 

granted the motion to compel. Plaintiff’s counsel respectfully declined to disclose the records 

and was held in friendly contempt to facilitate appellate review.

¶ 2 We find the trial court erred in granting defendants’ motion to compel because plaintiff did 

not place Kiersten’s mental condition at issue by claiming brain damage. The information 

plaintiff seeks to protect is not relevant or probative and is unduly prejudicial as it does not 

pertain to Kiersten’s conduct and actions at the time of her injuries.

¶ 3 I. BACKGROUND

¶ 4 On December 22, 2016, plaintiff, as father and next friend of Kiersten, a minor, filed a 

medical negligence complaint against defendants, Bakhtiar Yamini, M.D. (Dr. Yamini), and 

the University of Chicago Medical Center (U of C Medical Center) (collectively, defendants). 

¶ 5 In the complaint, plaintiff alleged that on March 30, 2015, Dr. Yamini, an employee of the 

U of C Medical Center, performed surgery on Kiersten, “including a lumbar laminoplasty for 

untethering of the spinal cord with microdissection and neuromonitoring.” On April 27, 2015, 

Dr. Yamini again saw Kiersten because Kiersten’s surgical wound was leaking spinal fluid. 

Dr. Yamini confirmed that the wound was leaking and instructed his staff to “overstitch” the 

wound. Dr. Yamini discussed the need to admit Kiersten but informed Kiersten’s parents that 

due to a nursing strike, Kiersten could not be admitted. For the next several days, a pouch 

developed at the wound site, Kiersten developed a fever and significant neck pain, and she was 

eventually taken to the U of C Medical Center on May 13, 2016, where Dr. Yamini surgically 

repaired the leak. The complaint alleged that Dr. Yamini’s 14-day delay in repairing the leak 

was a significant deviation of the standard of care, defendants were negligent, and as a direct 

and proximate result, Kiersten “developed infectious meningitis, and the serious sequalae 

thereof, and suffered injuries of a personal and pecuniary nature, which are permanent and 

continuing in nature.” 

¶ 6 Defendants denied they were negligent and careless in repairing the wound.

¶ 7 During discovery, defendants issued an interrogatory to plaintiff, seeking the names and 

addresses of all physicians, specialists, therapists, clinics, and similar personnel or facilities 
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who examined or treated Kiersten for her injuries. In response to the interrogatory, plaintiff 

identified Dr. Kathy Borchardt, a neuropsychologist, as one of the physicians who examined 

Kiersten. Dr. Borchardt issued a report of Kiersten’s evaluation that plaintiff provided to the 

defendants. 

¶ 8 The report indicated that Kiersten was referred to Dr. Borchardt for a “neuropsychological 

evaluation to determine whether Kiersten’s recent bout with meningitis has affected her 

cognitive, emotion, and behavioral presentation.” Dr. Borchardt interviewed Kiersten, who 

stated that since her bout with meningitis, she “becomes more frustrated and angry than she 

used to” and “has lost friendships because of her moods and outbursts.” Kiersten’s parents 

were also interviewed and stated that since the meningitis, “Kiersten’s reading comprehension 

appears compromised, and she has become forgetful in general” and “has also experienced a 

change in personality in that she becomes moody, crabby, and emotionally volatile.”

¶ 9 Dr. Borchardt conducted several tests on Kiersten and concluded that:

“Kiersten presents with signs and symptoms consistent with a traumatic brain injury. 

Specifically, Kiersten exhibits the following cognitive impairments: decreased 

attention and sustained concentration, irritability, sensory sensitivity, decreased 

cognitive processing speed, auditory processing delays, impaired immediate and 

working memory to auditory and visual stimuli, sensory processingmodulation-integration deficits, impaired mental stamina, and social interaction 

deficits. Given her medical history, it is likely that her impaired cognitive presentation 

is the result of her recent episode of meningitis in May of 2015.” 

¶ 10 Also in response to the interrogatory, plaintiff indicated that Kiersten had been treated for 

her injuries at Edward Hospital and Du Page Medical Group. Defendant issued subpoenas to 

both hospitals for Kiersten’s medical records. Both hospitals responded that they were unable 

to release the records without special authorization because the records included Kiersten’s 

mental health information. Plaintiff later authorized the release of the medical records from 

both hospitals to plaintiff’s counsel so that counsel may assert privilege where appropriate. 

Subsequently, counsel asserted privilege pursuant to the Mental Health Act and forwarded the 

records to the defendants with “lined redactions throughout the record pertaining [to]

psychological history, assessment and medication” and “entirely withheld the records of 

[Kiersten’s] hospitalization from November 10, 2014.” Counsel also submitted the records to 

the trial court for an in camera inspection. 

¶ 11 Defendants filed a motion to compel disclosure of Kiersten’s medical records from both 

hospitals. Defendants argued that because Dr. Borchardt’s report concluded that Kiersten’s 

injury affected her cognitive, emotional, and behavioral presentation, plaintiff placed 

Kiersten’s mental health at issue. Defendant asserted entitlement to the medical records from 

both hospitals to determine what Kiersten’s cognitive, emotional, and behavioral presentation 

was prior to the occurrence of her injury. 

¶ 12 Plaintiff filed a motion to bar discovery of the records and argued that a plaintiff does not 

place her mental condition at issue by merely claiming a neurological injury. 

¶ 13 On February 20, 2018, the trial court found that plaintiff placed Kiersten’s mental 

condition at issue and must disclose the records. The trial court read, in open court, portions of 

the records for which plaintiff sought to assert the Mental Health Act’s privilege. We will not 

recite those portions of the records on this public forum. Based on those portions, the trial court 

found that Kiersten displayed “emotional symptomatology” prior to developing meningitis. 
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Because Dr. Borchardt’s report indicated emotional deficits following Kiersten’s development 

of meningitis, the court ordered the medical records to be fully disclosed, without redactions, 

to determine whether Kiersten’s premeningitis emotional symptoms were relevant to claims of 

postmeningitis cognition, memory, processing, and social interaction deficits. 

¶ 14 Plaintiff’s counsel respectfully declined to turn over the records. The trial court held 

counsel in friendly contempt and imposed a fine of $100 to facilitate appellate review. 

Plaintiff’s counsel advised the court that in reciting the portions of the records to which the 

privilege was claimed, defendants received information protected by the Mental Health Act. 

Accordingly, plaintiff requested that the transcripts of the hearing and the records be sealed. 

The trial court granted the request. Plaintiff filed this appeal. During oral argument, plaintiff 

stipulated that he does not seek compensation for emotional injuries Kiersten suffered as a 

result of the meningitis.

¶ 15 II. ANALYSIS 

¶ 16 On appeal, plaintiff contends that the trial court erred in ordering the production of 

Kiersten’s mental health records and in holding plaintiff’s counsel in contempt for refusing to 

produce the records. Where an individual appeals a finding of contempt for violating a 

discovery order, the contempt finding is final and appealable, presenting to a reviewing court 

the propriety of the discovery order. Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002). 

A contempt proceeding is an appropriate method for testing the correctness of a discovery 

order. Id. “If the discovery order is invalid, then the contempt order, for failure to comply with 

that discovery order, must be reversed.” In re D.H., 319 Ill. App. 3d 771, 773 (2001). 

Plaintiff’s counsel argues that the trial court’s discovery order is invalid because the records 

are privileged under the Mental Health Act and no exception applies. The applicability of a 

statutory evidentiary privilege, and any exceptions thereto, are matters of law subject to 

de novo review. Reda, 199 Ill. 2d at 54. 

¶ 17 The Mental Health Act provides that “[u]nless otherwise expressly provided for in this Act, 

records and communications made or created in the course of providing mental health or 

developmental disabilities services shall be protected from disclosure regardless of whether 

the records and communications are made or created in the course of a therapeutic 

relationship.” 740 ILCS 110/3(a) (West 2018). Under the Mental Health Act, “ ‘[r]ecord’ 

means any record kept by a therapist or by an agency in the course of providing mental health 

or developmental disabilities service to a recipient concerning the recipient and the services 

provided.” Id. § 2. Communication “means any communication made by a recipient or other 

person to a therapist [or] in the presence of other persons during or in connection with 

providing mental health or developmental disability services to a recipient.” Id. Recipient 

means “a person who is receiving or has received mental health or developmental disabilities 

services.” Id. Therapist means “a psychiatrist, physician, psychologist, social worker, or nurse 

providing mental health or developmental disabilities services.” Id.

¶ 18 Section 10(a) of the Mental Health Act lists exceptions to the evidentiary privilege that 

permit disclosure. Section 10(a)(1), at issue in this case, provides that 

“[r]ecords and communications may be disclosed in a civil, criminal or administrative 

proceeding in which the recipient introduces his mental condition or any aspect of his 

services received for such condition as an element of his claim or defense, if and only 

to the extent the court in which the proceedings have been brought, or, in the case of an 
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administrative proceeding, the court to which an appeal or other action for review of an 

administrative determination may be taken, finds, after 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 of the facts sought to be established by such 

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. § 10(a)(1).

¶ 19 Here, the records fall under the purview of the Mental Health Act. The records were kept 

by doctors, nurses, and other individuals who fall under the definition of the term “therapist,” 

in the course of providing mental health services to the recipient, Kiersten. See id. § 2. At issue 

is whether plaintiff introduced Kiersten’s mental condition as an element of plaintiff’s claim. 

We find our supreme court’s decision in Reda controlling. 

¶ 20 In Reda, following knee replacement surgery, plaintiff filed a complaint, alleging that he 

developed “an acute thrombosis of the popliteal artery in his right leg” that defendant doctors 

failed to timely diagnose and treat. Reda, 199 Ill. 2d at 50. As a result of the doctors’ 

negligence, plaintiff “ ‘sustained injuries of a personal and pecuniary nature.’ ” Id. In 

defendants’ subsequent interrogatories, plaintiff was asked to specify his injuries. He 

responded that “ ‘[a]s a result of the occurrence, I suffered severe injuries to my leg (toes 

amputated and calf muscle removed) which have resulted in disability, disfigurement, pain and 

suffering. I also suffered a stroke, heart problems and kidney problems.’ ” Id. at 50-51. 

Thereafter, defendants sought treatment records from plaintiff’s treating physicians, which the 

treating physicians refused to release, invoking the Mental Health Act’s privilege. Id. at 51. 

Defendants filed a motion to compel. Id.

¶ 21 During discovery, plaintiff testified at his deposition to having constant headaches that he 

did not have prior to the surgery. Id. at 52. Plaintiff’s wife also testified that following surgery, 

plaintiff was “ ‘very emotional’ ” and “ ‘very frustrated.’ ” Id. She further testified that since 

the surgery, “ ‘he can be very mean, extremely mean. And I’m always at fault. I make wrong 

decisions, everything. It’s a hard situation. Sometimes I want to go crawl under the bed and 

stay there for ten days.’ ” Id. at 52-53.

¶ 22 After an in camera inspection of the records, the trial court ordered disclosure. Id. at 53. 

The appellate court, with one justice dissenting, upheld the trial court’s order, finding that 

disclosure was proper because plaintiff placed his mental condition at issue. Id. Our supreme 

court reversed, holding that plaintiff “did not place his mental condition at issue merely by 

claiming damages for what is a neurological injury, i.e., stroke and/or other brain damage.” Id.

at 58. Quoting the dissenting appellate court judge, the Reda court stated that “ ‘[a] 

neurological injury is not synonymous with psychological damage ***. Nor does neurological 

injury directly implicate psychological damage.’ ” Id. (quoting Reda v. Advocate Health Care, 

316 Ill. App. 3d 1115, 1120 (2000) (South, J., dissenting)). The Reda court reasoned that 

“[i]f that were true, in every case in which the plaintiff claimed damages stemming 

from a physical injury to the brain, the door to discovery of the plaintiff’s mental-health 

records would automatically open, and the limited exception in section 10(a)(1) of the 

[Mental Health Act] would effectively eviscerate the privilege.” Id.

¶ 23 Finally, the Reda court also found disclosure improper because the record contained 

information regarding plaintiff’s injuries from several additional sources. Id. at 62. 
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Specifically, the court noted that the record contained references to plaintiff’s medical records 

maintained by the hospital and various physicians, which the defendants could use to “question 

and contest all opinions and conclusions contained therein.” Id.

¶ 24 Similarly in this case, plaintiff alleged that following surgery, Kiersten “developed 

infectious meningitis, and the serious sequalae thereof, and suffered injuries of a personal and 

pecuniary nature.” Dr. Borchardt’s report indicated that Kiersten exhibited several cognitive 

impairments, concluded that Kiersten’s “impaired cognitive presentation is the result of her 

recent episode of meningitis” and that Kiersten presents with signs and symptoms consistent 

with a traumatic brain injury. Similar to Reda, which held that a recipient does not place his or 

her mental condition at issue merely by claiming brain damage (id. at 58), we find that plaintiff 

did not place Kiersten’s mental condition at issue. 

¶ 25 We also find disclosure improper in this case because the record contains some of the 

information sought by defendants from other sources, especially Dr. Borchadt’s report. The 

report contains what plaintiff describes as a “road map” regarding Kiersten’s condition before 

the meningitis that defendants can use to question the extent of Kiersten’s injuries from the 

meningitis. 

¶ 26 Defendants urge us to follow Phifer v. Gingher, 2017 IL App (3d) 160170, a case in which 

another district of this court found plaintiff placed her mental condition at issue. We find 

Phifer distinguishable. In Phifer, following an automobile collision, plaintiff filed a negligence 

complaint seeking damages for “ ‘great pain and anguish both in mind and body and will in the 

future continue to suffer.’ ” Id. ¶ 4. Plaintiff claimed “ ‘psychiatric, psychological and/or 

emotional injuries’ ” as a result of the collision. Id. ¶ 6. Plaintiff saw a doctor for 

“psychological issues” after the collision. Id. ¶ 8. Defendant requested medical records prior to 

the collision, plaintiff refused, and defendant filed a motion to compel which the trial court 

granted. Id. ¶¶ 13-19.

¶ 27 The Phifer court distinguished its case from Reda and held that plaintiff placed her mental 

condition at issue. Id. ¶ 28. The court found that “plaintiff did not restrict her damage claims to 

physical/neurological injuries. Instead, plaintiff’s original complaint alleged that ‘she suffered 

great pain and anguish both in mind and body and will in the future continue to so suffer.’ ” 

(Emphasis in original). Id. The court also found that, unlike plaintiff in Reda, plaintiff stated 

she was claiming “ ‘psychiatric, psychological and/or emotional injuries’ ” as a result of the 

collision. (Emphasis in original). Id. Plaintiff alternatively argued that she had withdrawn her 

claims solely attributable to the mental health injuries she sustained. However, the court 

rejected that argument, finding that plaintiff had not directed the court “to any agreed order, 

stipulation, or document of record confirming plaintiff’s decision to abandon damages based 

on the psychiatric, psychological, and/or emotional injuries.” Id. ¶ 34.

¶ 28 Unlike the plaintiff in Phifer, plaintiff’s counsel in this case stipulated that plaintiff does 

not seek damages based on psychiatric, psychological, and emotional damages; plaintiff did 

not allege that Kiersten suffered pain and anguish in mind and body; and plaintiff is not 

claiming psychiatric or psychological injuries. The plaintiff in Phifer stated that she saw a 

doctor for “psychological issues,” clearly placing her mental condition at issue. Here, Kiersten 

did not see Dr. Borchadt for psychological issues, but rather for a neurological injury, which is 

not synonymous with psychological damage and thus does not place plaintiff’s mental health 

at issue. 
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¶ 29 Next, defendants argue that fundamental fairness requires the disclosure of the medical 

records. In support of their argument, defendants cite D.C. v. S.A., 178 Ill. 2d 551, 570 (1997), 

where our supreme court held that the Mental Health Act privilege may yield in certain 

circumstances where the information sought in the medical records has the potential to fully 

negate plaintiff’s claim and absolve defendant of all liability. In D.C., plaintiff pedestrian was 

struck by an automobile and subsequently filed a negligence complaint. Id. at 554. Defendants 

sought plaintiff’s medical records from a psychiatric unit of a hospital. Id. at 555. The treating 

physician sent plaintiff to the hospital because there was an indication that the plaintiff might 

have been attempting suicide at the time of the accident. Id.

¶ 30 Our supreme court found that 

“the information plaintiff seeks to protect potentially contradicts his assertion that 

defendants were negligent and caused the accident. The information has the potential to 

completely absolve defendants from any liability. Too, the information meets the 

criteria for disclosure under section 10(a)(1). Certainly, the information is relevant as it 

pertains to plaintiff’s conduct and actions at the time of the accident. The information is 

probative as well because it appears to provide a possible explanation of how the 

accident occurred. Further, the information does not appear to be unduly prejudicial, as 

it does not concern plaintiff’s psychiatric treatment or progress, but refers only to his 

purported conduct at the time of the accident and various assessments by plaintiff’s 

treaters of those purported events.” Id. at 569.

¶ 31 We find the facts in this case distinguishable from D.C. because it does not pertain to 

Kiersten’s conduct and actions at the time of her injuries and the information cannot absolve 

defendants from liability, as the information contained in the records would go only to 

damages and not liability. See Reda, 199 Ill. 2d at 62.

¶ 32 Finally, defendants argue that plaintiff waived the privilege by failing to object when the 

trial court read in open court the mental health records plaintiff sought to assert the privilege 

upon. Defendants contend that plaintiff should have objected as soon as the trial court began to 

reveal the sensitive details contained in the medical records. We disagree. 

¶ 33 Waiver is the voluntary relinquishment of a known right that arises from an affirmative, 

consensual act consisting of an intentional relinquishment of a known right. Center Partners, 

Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 66. Privilege may be waived by failing to 

assert the privilege when privileged information is requested. Id. A party preserves the 

privilege when it attempts to limit disclosure. Id.

¶ 34 In this case, plaintiff did not voluntarily relinquish the privilege. When defendants 

requested the medical records, plaintiff limited disclosure by redacting information pertaining 

to Kiersten’s mental health records. In doing so, plaintiff satisfied the requirements of asserting 

the privilege. The trial court improperly read the privileged information in open court. We find 

plaintiff did not waive the privilege because he had already objected to the disclosure of the 

records. 

¶ 35 Defendants have not made the necessary showing to bring these records within the narrow 

exception in section 10(a)(1) of the Mental Health Act. Our ruling is without prejudice to 

defendants being able to revisit this issue if plaintiff takes later action in this case through 

damages sought or claims made that defendants can in good faith assert is an introduction of 

Kiersten’s mental condition as an element of the claims. 
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¶ 36 III. CONCLUSION

¶ 37 The trial court erred in granting defendants’ motion to compel because plaintiff did not 

place Kiersten’s mental condition at issue merely by claiming brain damage. Furthermore, 

disclosure of the records is improper because the record contains references to the information 

sought by defendants from other sources, which defendants could use to contest the opinions in 

the report. Finally, the information plaintiff seeks to protect is not relevant or probative and is 

unduly prejudicial as it does not pertain to the Kiersten’s conduct and actions at the time of her 

injuries.

¶ 38 Accordingly, we reverse the trial court’s discovery order. We also vacate the contempt 

finding against plaintiff’s counsel.

¶ 39 Reversed and remanded. Contempt order vacated.