Illinois Official Reports

Supreme Court

Palm v. Holocker, 2018 IL 123152

Caption in Supreme

Court:

SCARLETT PALM, Appellant, v. RUBEN HOLOCKER (Karl 

Bayer, Appellee).

Docket No. 123152

Filed

Modified upon 

denial of rehearing

December 13, 2018

February 28, 2019

Decision Under 

Review

Appeal from the Appellate Court for the Third District; heard in that 

court on appeal from the Circuit Court of Marshall County, the Hon. 

Thomas A. Keith and the Hon. Michael P. McCuskey, Judges, 

presiding.

Judgment Appellate court judgment affirmed as modified.

Circuit court judgment affirmed in part and reversed in part.

Counsel on

Appeal

Christopher H. Sokn, of Kingery Durree Wakeman & O’Donnell, 

Associates, of Peoria, for appellant.

Daniel E. Compton, of Compton Law Group, of Elgin, for appellees.

Jessica R. Sarff, of Heyl, Royster, Voelker & Allen, of Peoria, for 

amicus curiae Illinois Association of Defense Trial Counsel.
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Justices JUSTICE THOMAS delivered the judgment of the court, with 

opinion.

Chief Justice Karmeier and Justices Kilbride, Garman, Burke, Theis, 

and Neville concurred in the judgment and opinion.

OPINION

¶ 1 At issue is whether contemnor, Karl Bayer, was entitled to assert the physician-patient 

privilege (735 ILCS 5/8-802 (West 2016)) in this negligence case. Bayer refused to provide 

answers to two interrogatories seeking the names of health care providers who had treated his 

client, defendant Ruben Holocker. The trial court ordered contemnor to provide answers to the 

interrogatories, and when contemnor refused to do so, the court held him in contempt. 

Contemnor appealed the contempt order, and the appellate court reversed the discovery order 

and vacated the contempt order. The appellate court held that the information was privileged 

because defendant’s medical condition was not an issue in the case. 2017 IL App (3d) 170087. 

Plaintiff appeals, and we affirm the appellate court’s judgment as modified.

¶ 2 BACKGROUND

¶ 3 On October 18, 2014, defendant, Ruben Holocker, struck plaintiff, Scarlett Palm, with his 

vehicle. At the time, plaintiff was a pedestrian and was crossing the intersection of 5th Street 

and Ida Street in Lacon. 

¶ 4 Plaintiff filed a personal injury complaint against defendant in the circuit court of Marshall 

County. Plaintiff alleged that defendant was negligent in one or more of the following ways:

“a. Failed to keep and maintain a safe and proper lookout as he drove his vehicle 

into the intersection;

b. Drove his vehicle and turned left onto 5th Street from Ida [Street] when he failed 

to stop at the stop sign at Ida; and

[c.] Failed to yield the right-of-way to Plaintiff, who had the preferred right-of-way 

while walking across 5th Street at said intersection, and thereby violated 625 ILCS 

5/11-1204.”

¶ 5 Defendant filed an answer in which he denied all three of the above allegations of 

negligence. Additionally, defendant filed an affirmative defense in which he alleged that 

plaintiff was more than 50% responsible for her injuries. Defendant alleged that plaintiff was 

negligent in that she:

“a) Improperly crossed a street when it was unsafe to do so;

b) Failed to keep a proper lookout; and

c) Was under the influence of an alcoholic or narcotic substance that impaired her 

ability at the time of the accident.”

Defendant asserted that any recovery that plaintiff received should be reduced by that portion 

of contributory negligence attributable to plaintiff.
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¶ 6 Plaintiff served Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) interrogatories on 

defendant, including the following:

“20. Do you have any medical and/or physical condition which required a 

physician’s report and/or letter of approval in order to drive? If so, state the nature of 

the medical and/or physical condition, the physician or other health care professional 

who issued the letter and/or report, and the names and addresses of any physician or 

other health care professional who treated you for this condition prior to the occurrence.

21. State the name and address of any physician, ophthalmologist, optician or other 

health care professional who performed any eye examination of you within the last five 

(5) years, and the dates of each such examination.

22. State the name of any physician or other health care professional who examined 

and/or treated you within the last ten (10) years, and the dates of each such 

examination.”

¶ 7 Defendant answered interrogatory number 20 by stating, “Yes, diabetic reasons, Dr. 

Christopher Nau, 4th [S]treet, Chillicothe, IL 274-4336.” However, he refused to answer 

numbers 21 and 22. For each of these, he provided the following objection: “The defendant 

objects to the question as it violates [HIPAA], doctor-patient privilege, and the Defendant has 

not placed his medical condition at issue in this matter.”

¶ 8 Plaintiff filed a motion to strike defendant’s objections and compel defendant’s answers to 

interrogatories 21 and 22. At a hearing on the motion to compel, plaintiff argued that 

defendant’s ability to see and to drive was at issue because he drove his vehicle into a 

pedestrian. Plaintiff’s counsel explained to the trial court why he believed that defendant’s 

ability to see was at issue:

“MR. O’DONNELL: And Judge, here, just by way of background, a few weeks 

after this happened our client got a Facebook post from someone that said that the 

defendant in this case is legally blind, from someone who knows him, and that he has 

had other—a few other collisions that he’s never reported to anyone because of the fear 

of a revocation of his privileges based upon his difficulties with vision.”

¶ 9 Contemnor argued that defendant’s medical information was privileged because the 

defense was not putting defendant’s medical condition at issue. Contemnor acknowledged that 

defendant requires a doctor’s note to drive but explained that the defense was not claiming that 

defendant suffered a “sudden and unexpected attack.” The court then asked about the allegation 

that defendant failed to keep a proper lookout. Contemnor said that he believed the testimony 

would show that his client was waving to a pedestrian by the side of the road and was simply 

not looking at plaintiff. Contemnor argued that vision was not at issue because defendant was 

not even looking in plaintiff’s direction at the time. The court granted plaintiff’s motion, 

ordered defendant to answer the interrogatories, and entered a Health Insurance Portability and 

Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq. (2012)) order applicable to 

plaintiff and defendant. Plaintiff had previously subpoenaed defendant’s medical records from 

Dr. Nau and the Secretary of State, and the court ordered the Secretary of State to comply with 

the subpoena.

¶ 10 Defendant still refused to answer the interrogatories, and plaintiff moved for sanctions. At 

the hearing on the motion for sanctions, contemnor argued that Illinois case law provides that 

a defendant’s medical information is privileged unless the defendant puts his medical condition 
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in issue. Contemnor argued that he was not putting defendant’s medical condition at issue. The 

trial judge asked plaintiff’s counsel if he contended that defendant’s answer that he needed a 

doctor’s note to drive because of diabetic reasons had put defendant’s possible visual 

impediment at issue. Plaintiff’s counsel responded that there was “no question” that 

defendant’s sight was at issue because he had hit a pedestrian in broad daylight. Contemnor 

told the court that he believed defendant would testify in his deposition that the reason he did 

not see plaintiff was that he was waving to a friend of his on the corner. Plaintiff’s attorney 

told the court that he had subpoenaed defendant’s driving records and that defendant had been 

involved in seven or eight different collisions before the present one and he wanted to find out 

if defendant was using multiple optometrists to find one who would clear him to drive. Plaintiff 

also wanted to subpoena Dr. Nau’s records. The trial court said that it did not want plaintiff 

going on a fishing expedition but that it did believe that sight was an issue based on the fact 

that defendant had diabetes and had not seen the plaintiff when he struck her. Contemnor 

disagreed and explained that the reason for the doctor’s permission might be to make sure that 

defendant’s blood sugar was controlled and that he was not having episodes of low blood sugar. 

Contemnor also pointed out that defendant had a valid driver’s license at the time of the 

accident. The court found that plaintiff had legitimate reasonable cause to believe that 

defendant had sight problems that could have been related to the accident and that plaintiff had 

“a right to look for that.” The court held defendant’s attorney in contempt and imposed a $5-

per-day fine until contemnor submitted answers to the interrogatories.

¶ 11 Contemnor appealed, and the appellate court reversed the contempt finding. The court first 

noted a potential procedural problem. The appeal was from an order holding contemnor in 

contempt for failing to provide answers to two interrogatories. The parties briefed the broader 

issue of whether the physician-patient privilege applied at all in this case, not whether it applied 

to the two interrogatories. 2017 IL App (3d) 170087, ¶ 15. However, the court found that it 

should address the briefed issue in the interests of the orderly administration of justice and to 

avoid an inevitable second appeal. Id. ¶ 16. Moreover, the court noted that a ruling that the 

privilege applied would render the interrogatories pointless. Id. ¶ 15. If plaintiff could not 

obtain defendant’s medical records, the answers to the two interrogatories would not lead to 

discoverable information. Id. ¶ 29.

¶ 12 The court held that the records were privileged under section 8-802 of the Code of Civil 

Procedure and that the exception provided in subsection (4) did not apply. This exception 

provides that the privilege does not apply “in all actions brought by or against the patient *** 

wherein the patient’s physical or mental condition is an issue.” 735 ILCS 5/8-802(4) (West 

2016). Plaintiff argued that “an issue” as used in this subsection simply means relevant. The 

appellate court disagreed. The court noted that irrelevant information is neither subject to 

disclosure nor admissible in evidence and, if the legislature meant “an issue” to mean 

“relevant,” it would have simply said that the privilege does not apply in any litigation. 2017 

IL App (3d) 170087, ¶ 22. The court held that section 8-802(4) applies only when a defendant 

affirmatively places his or her health at issue and that a plaintiff cannot waive someone else’s 

privilege. Id. ¶ 24. Relying on Kraima v. Ausman, 365 Ill. App. 3d 530, 536 (2006), and 

Pritchard v. SwedishAmerican Hospital, 191 Ill. App. 3d 388, 405 (1989), the court held that 

“[n]either the nature of a plaintiff’s cause of action nor factual allegations in a plaintiff’s 

complaint waive a defendant’s physician-patient privilege.” 2017 IL App (3d) 170087, ¶ 24. 

The court noted that Illinois Supreme Court Rule 215(d)(1) (eff. Mar. 28, 2011), which 
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addresses when a court may order a party to undergo a mental or physical exam, provides that 

a court may do so when a party’s “ ‘mental or physical condition’ ” is “ ‘placed in issue.’ ” 

2017 IL App (3d) 170087, ¶ 23. The committee comments provide that “ ‘[m]ere allegations 

are insufficient to place a party’s mental or physical condition in “issue.” ’ ” (Emphasis 

omitted.) Id. (quoting Ill. S. Ct. R. 215(d) Committee Comments (adopted Mar. 28, 2011)). 

The court inferred from this that “in issue” does not mean “relevant.” Id.1

¶ 13 Thus, the court determined that defendant’s medical records were privileged and that he 

had not placed his physical or mental condition at issue. The court determined that defendant’s 

medical condition had no bearing on his liability because “he either drove negligently or he 

did not.” Id. ¶ 26. The court explained that, if defendant “possessed a valid license and operated 

his vehicle as a reasonably prudent person would, then he is not liable for [plaintiff’s] injuries 

regardless of his health or vision. If [defendant] drove negligently and proximately caused 

[plaintiff’s] injuries, then he is liable.” Id. Because defendant had not affirmatively placed his 

health in issue, the court determined that the interrogatory answers were not likely to lead to 

discoverable information. Id. ¶ 29. Thus, the court reversed the circuit court’s discovery order, 

ordered plaintiff’s counsel to relinquish any of defendant’s medical records that he had 

obtained, and vacated the contempt order.2 Id. ¶¶ 29, 31. 

¶ 14 We allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Nov. 1, 2017).

¶ 15 On December 13, 2018, this court filed an opinion affirming the appellate court’s judgment 

as modified. Our opinion declined to reach the issue of whether a plaintiff may waive a 

defendant’s physician-patient privilege by putting a defendant’s physical or mental condition 

at issue because, on the record before us, plaintiff had not put defendant’s physical or mental 

condition at issue. Thus, we held that plaintiff was properly ordered to relinquish defendant’s 

medical records. However, we modified the appellate court’s judgment to allow plaintiff to 

keep the records she had obtained from the Secretary of State. Plaintiff then filed a petition for 

rehearing in which she raised two issues. First, plaintiff claimed that this court had no 

jurisdiction to order her to relinquish defendant’s medical records because she had obtained 

these while the case was on appeal. The records were obtained pursuant to the HIPAA order, 

which was not part of this appeal. Accordingly, plaintiff insisted that the court had no 

jurisdiction to order her to relinquish these records.3 Second, plaintiff argued that this court 

erred in failing to address the fact that defendant was using the HIPAA order to subpoena 

plaintiff’s medical records. This is the same order over which plaintiff insists that the court 

does not have jurisdiction. 

1

We note that Rule 215(d)(1) does not merely use the phrase “in issue” but rather sets forth how 

something becomes “an issue” for purposes of the rule. See Illinois Supreme Court Rule 215(d)(1) (eff. 

Mar. 28, 2011) (explaining that the court may order a physical or mental examination of a party “where 

conflicting medical testimony, reports or other documentation has been offered as proof and the party’s 

mental or physical condition is thereby placed in issue”).

2

Plaintiff’s counsel explained at oral argument that he had obtained all of defendant’s medical 

records that he needs. Counsel explained that, because Lacon is a small town, he was able to learn from 

people in the community which doctors and optometrists defendant has seen. 

3

At oral argument, plaintiff’s counsel represented to this court that his possession of these records 

was the very reason the court should reach the question of section 8-802(4)’s applicability to this case 

and argued that the court would not be rendering an advisory opinion by doing so.
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¶ 16 Through documents provided with plaintiff’s petition for rehearing, this court now has a 

clearer picture of the procedural state of this case and of how plaintiff obtained defendant’s 

medical records. As set forth above, the parties did not limit their arguments in the appellate 

court to the two interrogatories that formed the basis of the contempt order. Rather, they briefed 

and argued the broader question of whether section 8-802(4) applies at all in this case. This 

statute applies when a physician or surgeon is asked to disclose medical information, which is 

something that had not yet happened in this case. Nevertheless, the appellate court decided to 

resolve the case the way the parties briefed it, for the reason that plaintiff would eventually 

seek to subpoena defendant’s medical records. 2017 IL App (3d) 170087, ¶¶ 15-16. Plaintiff 

understood this when she brought the case here for further review. 

¶ 17 While the case was on appeal and the appellate court was being asked by both parties to 

resolve the question of whether section 8-802(4) applied to this case, plaintiff went ahead and 

subpoenaed defendant’s medical records. Defendant moved to strike the subpoenas on the basis 

that the appellate court was currently deciding the issue and that plaintiff was attempting to 

backdoor the entire proceeding while waiting for the appellate court to rule. Defendant asked 

the trial court to strike the subpoenas until such time as the appellate court reversed the trial 

court’s decision or the supreme court ruled in the matter. The trial court denied the motion and 

then denied defendant’s request for Rule 304(a) language. 4 Plaintiff obtained defendant’s 

medical records and then prepared an amended complaint based on the information she learned 

from those records. 

¶ 18 So this is the procedural state we now find ourselves in. This court has issued an opinion 

holding that neither party has put defendant’s medical condition in issue and thus the exception 

to the physician-patient privilege found in section 8-802(4) does not apply. Therefore plaintiff 

should not be able to access defendant’s medical records. In the meantime, while that issue 

was on appeal, the trial court allowed plaintiff to subpoena those very records, and now 

plaintiff has prepared an amended complaint based on information contained in those records. 

Given this, we believe the most appropriate course of action is to modify our original opinion 

to address the issue that plaintiff originally brought to this court, but which we declined to 

address—whether a plaintiff may put a defendant’s physical or mental condition at issue so as 

to waive the defendant’s physician-patient privilege.

¶ 19 ANALYSIS

¶ 20 Section 8-802 of the Code of Civil Procedure provides that “[n]o physician or surgeon shall 

be permitted to disclose any information he or she may have acquired in attending any patient 

in a professional character, necessary to enable him or her professionally to serve the patient.” 

735 ILCS 5/8-802 (West 2016). The statute then lists 14 situations in which the privilege does 

not apply. The physician-patient privilege exists to encourage disclosure between a doctor and 

a patient and to protect the patient from invasions of privacy. See Reagan v. Searcy, 323 Ill. 

App. 3d 393, 395 (2001). The purpose of the privilege is to encourage full disclosure of all 

medical facts by the patient in order to ensure the best diagnosis and outcome for the patient. 

4

It is not clear whether the trial court was aware that the appellate court was being asked to resolve 

the broader question of whether section 8-802(4) applied at all in this case, rather than the narrower 

question of whether defense counsel was properly held in contempt for failing to provide answers to 

two interrogatories.
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See People v. Wilber, 279 Ill. App. 3d 462, 467 (1996). The legislature has recognized that 

patients have an interest in maintaining confidentiality in their medical dealings with 

physicians. People v. Florendo, 95 Ill. 2d 155, 158 (1983).

¶ 21 Resolution of this appeal turns on the meaning of “an issue” in section 8-802(4), which 

provides that the privilege does not apply in any action wherein “the patient’s physical or 

mental condition is an issue.” 735 ILCS 5/8-802(4) (West 2016). The cardinal rule of statutory 

construction is to ascertain and give effect to the legislature’s intent. Bank of New York Mellon 

v. Laskowski, 2018 IL 121995, ¶ 12. The most reliable indicator of legislative intent is the 

language of the statute, given its plain and ordinary meaning. Id. It is improper for a court to 

depart from the plain statutory language by reading into the statute exceptions, limitations, or 

conditions that conflict with the clearly expressed legislative intent. Metropolitan Life 

Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18. Where statutory language is clear and

unambiguous, it will be given effect without resort to other aids of construction. Kunkel v. 

Walton, 179 Ill. 2d 519, 534 (1997). If the meaning of an enactment is unclear from the 

statutory language, the court may consider the purpose behind the law and the evils the law 

was designed to remedy. Gruszeczka v. Illinois Workers’ Compensation Comm’n, 2013 IL 

114212, ¶ 12. The statute should be read as a whole and construed so as to give effect to every 

word, clause, and sentence; we must not read a statute so as to render any part superfluous or 

meaningless. People ex rel. Department of Corrections v. Hawkins, 2011 IL 110792, ¶ 23. 

Words and phrases must be interpreted in light of other relevant provisions of the statute and 

must not be construed in isolation. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279-80 

(2003). We have an obligation to construe statutes in a manner that will avoid absurd, 

unreasonable, or unjust results that the legislature could not have intended. People ex rel. 

Alvarez v. Gaughan, 2016 IL 120110, ¶ 19. Statutes in derogation of the common law are to 

be strictly construed in favor of persons sought to be subjected to their operation. Nowak v. 

City of Country Club Hills, 2011 IL 111838, ¶ 19. Our review is de novo. Id. ¶ 11.

¶ 22 Plaintiff argues that the appellate court impermissibly added language to section 8-802(4). 

Plaintiff points out that this section merely requires that the patient’s physical or mental 

condition be “an issue” and it does not say that only the patient may put his or her medical 

condition at issue. Plaintiff contends that “in issue” is synonymous with “relevant.” Thus, 

plaintiff contends that section 8-802(4) simply means that medical records may be disclosed 

in any action in which a party has a relevant physical or mental condition. Plaintiff further 

points out that the appellate court did not discuss any of the opinions filed after Kraima and 

Pritchard in which the courts have applied section 8-802(4) when the State has put a 

defendant’s medical condition in issue. See People v. Beck, 2017 IL App (4th) 160654 

(postaccident medical records in aggravated driving under the influence (DUI) proceeding); 

People v. Botsis, 388 Ill. App. 3d 422 (2009) (medical records in reckless homicide 

proceeding); People v. Popeck, 385 Ill. App. 3d 806 (2008) (postaccident medical records in 

DUI proceeding); In re Detention of Anders, 304 Ill. App. 3d 117 (1999) (mental health 

evaluation in Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West Supp. 

1997)) proceeding); People v. Nohren, 283 Ill. App. 3d 753 (1996) (blood test results in DUI 

proceeding); Wilber, 279 Ill. App. 3d 462; (postaccident statements to paramedics in 

aggravated DUI proceeding); People v. Krause, 273 Ill. App. 3d 59 (1995) (postaccident 

statements to paramedics in aggravated DUI proceeding).
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¶ 23 Defendant responds by arguing that civil and criminal cases have separate rules for how a 

patient’s physical or mental condition becomes “an issue” for purposes of section 8-802(4). 

Defendant contends that, in a civil case, the exception applies only when a party puts his or her 

own physical condition at issue by affirmative pleading. Thus, a plaintiff who files a personal 

injury action necessarily puts his or her own physical or mental condition at issue, and a 

defendant in a civil case puts his or her own physical or mental condition at issue by asserting 

it as part of a defense. By contrast, in criminal cases, something may become “an issue” if the 

legislature has made it an element of the offense.5 This is how defendant reconciles these 

disparate lines of cases. Defendant explains In re Detention of Anders, 304 Ill. App. 3d 117, 

by arguing that the criminal rule would apply in a Sexually Violent Persons Commitment Act 

proceeding because the respondent’s mental condition is the subject of the commitment 

proceedings. 

¶ 24 Plaintiff points out, however, that section 8-802(4) makes no distinction between civil and 

criminal cases and simply uses the language “in all actions.” In other subsections of section 8-

802, the legislature used language such as “in trials for homicide” (735 ILCS 5/8-802(1) (West 

2016)), “in actions, civil or criminal” (id. § 8-802(2), (7)), “in any criminal action” (id. § 8-

802(6)), “in prosecutions” (id. § 8-802(9), (10)), and “in criminal actions” (id. § 8-802(11)). 

Thus, the legislature was very specific when it wanted to draw a distinction between civil and 

criminal cases, and subsection (4) contains no such distinction.6 Indeed, subsection (6) makes 

defendant’s interpretation problematic. This exception provides that medical records may be 

disclosed “in any criminal action where the charge is either first degree murder by abortion, 

attempted abortion or abortion.” Id. § 8-802(6). If subsection (4) made medical records 

discoverable in all criminal actions wherein a defendant’s physical condition is an element of 

the offense, then subsection (6) would seem to be superfluous. Thus, contrary to defendant’s 

argument, there seems to be a genuine conflict between how the courts have applied subsection 

(4) in civil and criminal cases. In civil cases, the courts have held that only the patient may 

waive his or her own privilege by putting his or her physical or mental condition at issue, while 

in the criminal context, the courts have allowed the State to waive a defendant’s privilege by 

putting his or her physical or mental condition at issue. 

¶ 25 It appears that an overwhelming majority of courts have agreed with the appellate court 

below that a plaintiff may not waive a defendant’s privilege by putting the defendant’s medical 

condition at issue. In Griego v. Douglas, No. CIV 17-0244 KBM/JHR, 2018 WL 2376330 

5

Defendant’s theory does not work for all of the cases. For instance, a defendant’s physical or 

mental condition is not an element of the offense of reckless homicide. See 720 ILCS 5/9-3(a) (West

2016). What the court held in Botsis was that the defendant’s medical condition was an issue because 

it was relevant to the issue of recklessness. Botsis, 388 Ill. App. 3d at 435. But this is precisely the 

definition of “an issue” that the appellate court rejected here. See 2017 IL App (3d) 170087, ¶¶ 22-23 

(explaining that “an issue” in section 8-802(4) does not mean “relevant”). Defendant also categorically 

rejects the argument that “an issue” means “relevant.”

6

In the previous version of the statute, there was no question that subsection (4) applied only to 

civil cases. Subsection (4) previously read, “in all civil suits brought by or against the patient, his 

personal representative, a beneficiary under a policy of insurance, or the executor or administrator of 

his estate wherein the patient’s physical or mental condition is an issue.” Ill. Rev. Stat. 1981, ch. 51, 

¶ 5.1(4). When this section was recodified as part of the Illinois Compiled Statutes, “civil suits” was 

replaced with “actions.” See 735 ILCS 5/8-802(4) (West 2016).
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(D. N.M. May 24, 2018), a federal district court was confronted with this issue. Griego was a 

wrongful death case arising out of a traffic accident in which the plaintiffs wanted access to 

the defendant’s medical records. The plaintiffs had alleged in the suit that the defendant had 

failed to yield the right of way, made an improper turn, and was inattentive while driving. Id.

at *1. The plaintiffs contended that the defendant’s overall medical condition and especially 

his quality of vision were highly relevant to whether he was negligent. The plaintiffs further 

contended that the defendant’s medical condition was at issue because he was over 75 and 

drivers in New Mexico over that age are required to provide a physician’s report when 

renewing a driver’s license. Id. at *2. The defendant did not rely on a medical condition as part 

of his defense. Rather, he simply denied liability. Id. at *1.

¶ 26 Before turning to the specific provisions of New Mexico law, the court conducted a survey 

of how the various states had dealt with this issue. The court concluded that “[m]ost courts that 

have addressed the matter have found that a defendant’s medical records are privileged, and 

that a defendant does not waive the privilege merely by driving, denying fault, or asserting 

comparative negligence.” Id. at *5.7 The only state the court could find that had held that a 

plaintiff could put a defendant’s physical condition at issue so as to waive the defendant’s 

privilege was North Carolina. Id. at *6. The court then considered New Mexico law and noted 

that “the physician-patient privilege has enjoyed considerable deference, with substantial 

protection provided to all but those patients who explicitly waived it.” Id. at *7. The court 

noted that New Mexico had even gone so far as holding that in a DUI prosecution a defendant 

did not waive the privilege by pleading not guilty. Id. at *6 (citing State v. Roper, 921 P.2d 

322, 326 (N.M. Ct. App. 1996). The court thus determined that the plaintiffs were not entitled 

to a general release of the defendant’s medical records:

“In summary, the general rule is that a defendant driver in a civil case does not 

waive the physician-patient privilege simply by denying fault or asserting comparative 

negligence. Additionally, the general rule is that a plaintiff may not effect a waiver of 

a defendant’s privilege even where there is evidence that the defendant may have been 

impaired at the time of the collision.” (Emphases in original). Id. at *7.

See also Chung v. Legacy Corp., 548 N.W.2d 147, 150 (Iowa 1996) (collecting cases); Muller 

v. Rogers, 534 N.W.2d 724, 726 (Minn. Ct. App. 1995) (“Muller has cited no statute or 

caselaw, and our research has disclosed none, holding that a plaintiff may place a defendant’s

physical condition in controversy and thereby effect a waiver of the defendant’s medial 

privilege by asserting that the defendant was impaired on the day of the accident.” (Emphases 

in original.)).

¶ 27 We note, however, that the issue was much easier for Griego than it is for us. The New 

Mexico rule words the relevant exception to the physician-patient privilege as follows:

“If a patient relies on a physical, mental, or emotional condition as part of a claim or 

defense, no privilege shall apply concerning confidential communications made 

relevant to that condition.” N.M. S. Ct. R. 11-504(D)(3) (eff. Dec. 31, 2013). 

7

See also 1 Kenneth S. Broun et al., McCormick on Evidence § 103, at 633 (7th ed. 2013) (“With 

respect to defenses, a distinction is clearly to be seen between the allegation of a physical or mental 

condition, which will effect the waiver, and the mere denial of such a condition asserted by the 

adversary, which will not.”).
- 10 -

Section 8-802(4) simply provides that the privilege does not apply in any action in which a 

patient’s medical condition is “an issue.” As Griego noted, North Carolina has taken the 

opposite view and held that a plaintiff may put a defendant’s medical condition at issue so as 

to waive the defendant’s privilege. But the North Carolina cases are not particularly helpful 

because the North Carolina statute does not contain a list of exceptions where the privilege 

does not apply. Rather, after stating the privilege, the statute provides that

“[a]ny resident or presiding judge in the district, either at the trial or prior thereto, or 

the Industrial Commission pursuant to law may, subject to G.S. 8-53.6, compel 

disclosure if in his opinion disclosure is necessary to a proper administration of justice.” 

N.C. Gen. Stat. § 8-53 (2017).

Thus, when a plaintiff has put a defendant’s medical condition at issue, the North Carolina 

courts have relied on this provision to hold that a trial court did not abuse its discretion in 

ordering the production of the defendant’s medical records. See Roadway Express, Inc. v. 

Hayes, 631 S.E.2d 41, 45-46 (N.C. Ct. App. 2006).

¶ 28 The legislature’s intent in enacting section 8-802(4) is not clear, and the cases interpreting 

that section are inconsistent in applying it. For the following reasons, we agree with 

defendant’s interpretation of the statute. First, as cases such as Griego and Chung have noted, 

there is near universal agreement among courts that the physician-patient privilege belongs to 

the patient and therefore only the patient may waive it by putting his physical or mental 

condition at issue. As stated in McCormick on Evidence, “a patient voluntarily placing his or 

her physical or mental condition in issue in a judicial proceeding waives the privilege with 

respect to information relative to that condition.” (Emphasis added.) 1 Kenneth S. Broun et al., 

McCormick on Evidence § 103, at 631 (7th ed. 2013). In Petrillo v. Syntax Laboratories, Inc., 

148 Ill. App. 3d 581 (1986), the appellate court explained that a patient can consent to the 

disclosure of his medical records in one of two ways:

“The consent that is necessary before a patient’s confidences may be properly 

disclosed to third parties is, of course, two-fold in nature. The consent can take the form 

of an express consent (e.g., a written waiver) or it can be implied at law by the patient’s 

conduct. In this regard, we note that when a patient files suit, he implicitly consents to 

his physician releasing any of the medical information related to the mental or physical 

condition which the patient has placed at issue in the lawsuit ***.” Id. at 591. 

See also 1 Kenneth S. Broun et al., McCormick on Evidence § 103, at 632 (7th ed. 2016) (“A 

claim for damages for personal injuries is of course the paradigm example, and will clearly 

waive the privilege in all jurisdictions where such waiver by filing is possible at all.”). 

¶ 29 Second, plaintiff’s interpretation is problematic when viewed in context of the entire 

statute. If, as plaintiff insists, section 8-802(4) is a broadly applicable section, allowing 

disclosure in every case in which a patient’s medical condition is “relevant,” then other 

subsections of section 8-802 are redundant and unnecessary. For instance, subsections (6) (“in 

any criminal action where the charge is either first degree murder by abortion, attempted 

abortion or abortion”); (9) (“in prosecutions where written results of blood alcohol tests are 

admissible pursuant to section 11-501.4 of the Illinois Vehicle Code” (625 ILCS 5/11-501.4 

(West 2016))); and (10) (“in prosecutions where written results of blood alcohol tests are 

admissible under section 5-11a of the Boat Registration and Safety Act” (625 ILCS 45/5-11a, 

renumbered as 625 ILCS 45/5-16a (West 2016))) would seem to be unnecessary if subsection 
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(4) allows the records to be disclosed in any proceeding in which the patient’s physical or 

mental condition is relevant. See 735 ILCS 5/8-802 (West 2016). The sheer number of codified 

exceptions to the privilege suggests that section 8-802(4) must have a narrower scope than 

plaintiff contends. 

¶ 30 Third, plaintiff’s interpretation renders the privilege virtually meaningless. Consider again 

what happened in this case. The plaintiff represented to the trial court that she had learned 

through a hearsay statement posted on Facebook that defendant is legally blind. Based on this 

representation, plaintiff was allowed to vitiate defendant’s privilege, and she now seeks to file 

an amended complaint based on the information found in defendant’s medical records. It is 

difficult to imagine that this is how the legislature intended section 8-802(4) to work. We note 

further that at the time plaintiff was allowed to obtain defendant’s medical records she had not 

even pleaded that defendant had a relevant medical condition. Although plaintiff construes “an 

issue” to mean relevant, the plain meaning of the term “issue” would at least require the 

condition to be pleaded. Webster’s defines “issue” as “a point in question of law or fact; specif : 

a single material point of law or fact depending in a suit that is affirmed by one side and denied 

by the other and that is presented for determination at the conclusion of the pleadings.” 

Webster’s Third New International Dictionary 1201 (1993); see also A Dictionary of Modern 

Legal Usage 470 (2d ed. 1995) (defining “facts in issue” as “facts that, in the pleadings, are 

affirmed on one side and denied on the other”). Black’s defines “issue” as “[a] point in dispute 

between two or more parties” (Black’s Law Dictionary 907 (9th ed. 2009)) and then quotes the 

following definition from Corpus Juris Secundum:

“ ‘In federal civil procedure, an issue is a single, certain, and material point arising 

out of the allegations and contentions of the parties; it is matter affirmed on one side 

and denied on the other, and when a fact is alleged in the complaint and denied in the 

answer, the matter is then put in issue between the parties.’ ” Id. (quoting 35A C.J.S. 

Federal Civil Procedure § 357, at 541 (1960)).

Nevertheless, even if plaintiff had pleaded a relevant medical condition, we do not believe that 

this is sufficient to waive defendant’s privilege. Allowing a plaintiff to put defendant’s medical 

condition at issue simply by making an allegation in a pleading would leave in place all of the 

problems discussed above. Such an interpretation would allow one party to waive another 

party’s privilege, and that interpretation would be problematic in light of other provisions of 

the statute. 

¶ 31 Fourth, the courts have been consistent in holding that, in civil cases, only the patient may 

put his or her own medical condition at issue. See Kraima, 365 Ill. App. 3d 530; Pritchard, 

191 Ill. App. 3d 388. Although the legislature has amended section 8-802 numerous times since 

those decisions were issued, it has never amended subsection (4) in response to those decisions. 

As we explained in In re Marriage of Mathis, 2012 IL 113496, ¶ 25:

“We assume not only that the General Assembly acts with full knowledge of previous 

judicial decisions, but also that its silence on this issue in the face of decisions 

consistent with those previous decisions indicates its acquiescence to them. See People 

v. Villa, 2011 IL 110777, ¶ 36 (‘the judicial construction of the statute becomes a part 

of the law, and the legislature is presumed to act with full knowledge of the prevailing 

case law and the judicial construction of the words in the prior enactment’).”
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Section 8-802 has been amended 10 times since Pritchard was decided and 8 times since 

Kraima was decided, and the legislature has not altered the language of subsection (4) in 

response to those decisions. Thus, we presume that the legislature has acquiesced in that 

interpretation. If the legislature disagrees with our interpretation, it is free to amend the statute. 

¶ 32 Plaintiff raises policy concerns implicated by applying the statute in this matter, including 

that patients will be able to hide relevant medical conditions. But privileges by their very nature 

prevent relevant information from being disclosed. As the appellate court explained when 

applying the physician-patient privilege in House v. SwedishAmerican Hospital, 206 Ill. App. 

3d 437, 444 (1990):

“In making our determination, we are aware that much of the information contained 

in the nonparty patient’s medical records would be relevant to the issue involved in this 

case. Unfortunately for plaintiff, the privilege involved in this case will often act to bar 

what is clearly relevant and material information. See [Laurent v. Breiji, 74 Ill. App.3d 

214, 217 (1979)], (‘[i]mplicit in every testimonial privilege is the assumption that the 

privileged matter may indeed be highly probative of the issues in dispute’).”

In Dillenbeck v. Hess, 536 N.E.2d 1126, 1133 (N.Y. 1989), the New York Court of Appeals 

stated:

“Moreover, the mere fact that the privilege presents an obstacle to plaintiffs’ discovery 

of legally pertinent information that would assist them in proving their claim is not, as 

the dissent seems to suggest, evidence that the privilege is not properly recognized in 

this case. Indeed, it is inherent in the very nature of an evidentiary privilege that it 

presents an obstacle to discovery and it is precisely in those situations where 

confidential information is sought in advancing a legal claim that such privilege is 

intended to operate. Were we to carve out an exception to the privilege whenever it 

inhibited the fact-finding process, it would quickly become eviscerated.” (Emphasis 

added.)

Thus, while we acknowledge that construing the statute in the manner defendant suggests will 

keep relevant information from the fact-finder, that is simply inherent in the nature of 

privileges, and it is not justification for construing the statute in a way to render the privilege 

virtually meaningless for parties to litigation. Pursuant to our authority under Illinois Supreme 

Court Rule 366(a)(5) (eff. Feb. 1, 1994), we order plaintiff to relinquish the records obtained 

from defendant’s medical providers in a manner that will protect defendant’s privacy. As for 

plaintiff’s complaint that defendant has been using the HIPAA order to subpoena plaintiff’s 

medical records, we note that plaintiff put her physical condition at issue by filing a complaint 

for personal injuries. Any objections plaintiff has to the scope of defendant’s subpoenas are 

for the trial court to resolve.

¶ 33 In sum, the question facing this court is whether the legislature’s intent in enacting 

subsection (4) was to codify the near-universally recognized principle of waiver by implied 

consent or to enact a broadly applicable exception allowing the privilege to be vitiated any 

time a party’s medical condition is relevant. For the reasons set forth above, we believe it was 

the former. We acknowledge, however, the confusing wording of the statute when read as a 

whole, along with an arguable inconsistency in how some cases have applied this exception. 

We therefore call upon the legislature to address subsection (4) and to make its intentions clear. 

We express no opinion on those criminal cases that have held that subsection (4) applies when 
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the legislature has made a party’s physical or mental condition an element of an offense, as 

that issue is not before us. 

¶ 34 We further hold, however, that plaintiff does not have to relinquish Dr. Nau’s report that 

plaintiff obtained from the Secretary of State. We note that defendant asserted the privilege 

only with respect to interrogatories 21 and 22. Defendant did not assert the privilege with 

respect to interrogatory 20 and instead disclosed the name of the doctor who provides the report 

that allows him to renew his driver’s license. As noted above, the purpose of the physicianpatient privilege is to encourage full disclosure of all medical facts by the patient in order to 

ensure the best diagnosis and outcome for the patient. When a patient obtains a physician’s 

report in order to maintain his driving privileges, he is not seeking treatment. Courts have 

drawn on this distinction to hold that the physician-patient privilege does not apply to medical 

records used to obtain driving privileges. 

¶ 35 For instance, in Muller, 534 N.W.2d 724, the court held that the defendant’s medical 

records were privileged in a wrongful death case arising out of a traffic accident because the 

defendant had simply denied liability and was not relying on a medical condition as part of his 

defense. The court held that a plaintiff may not place a defendant’s physical condition in 

controversy and thereby effect a waiver of the defendant’s privilege. Id. at 726. However, the 

court explained that the same consideration would not apply to records that the defendant had 

turned over to the Department of Public Safety for the “ ‘benefit of keeping a driver’s license 

or obtaining handicapped license plates.’ ” Id. at 727. The court explained that disclosing 

confidential information to third parties waives the privilege. Id. The court further explained 

that the privilege exists to protect confidential information acquired by a physician seeing a 

patient for the purpose of providing treatment and that the “purpose of the defendant’s 

disclosure to the Department of Public Safety was to obtain driving or licensing privileges, not 

to obtain medical treatment.” Id.; see also, e.g., Matysik v. Judd Transportation, L.L.C., No. 

1:14-cv-1889-TWP-DKL, 2016 WL 559217, at *1 (S.D. Ind. Feb. 2, 2016) (defendant’s 

medical records privileged in suit alleging that he suffered a medical condition that caused him 

to fall asleep at the wheel, but privilege does not extend to record of his department of 

transportation physical examination because it was for the purpose of “meeting federal 

regulatory requirements and not for purposes of diagnosis and treatment”); Jackson v. 

Wiersema Charter Service, Inc., No. 4:08CV00027 JCH, 2009 WL 1798389, at *1 (E.D. Mo. 

June 24, 2009) (“[r]ecords pertaining to a [commercial driver’s license] medical examination 

are not within the scope of the physician-patient privilege”); State ex rel. Hayter v. Griffin, 785 

S.W.2d 590, 595-96 (Mo. Ct. App. 1990) (medical examination for purposes of satisfying 

federal regulations not within the scope of physician-patient privilege because privilege 

extends only to information acquired by physician for purposes of prescribing and treatment); 

Clinton DeWitt, Privileged Communications Between Physician and Patient 104-05 (1958) 

(“As a general rule, the relationship of physician and patient does not exist unless the 

physician’s consultation with, or attendance upon, the prospective patient is with a view to 

protective, alleviative, or curative treatment. *** There is no privilege as to information 

acquired by a physician through the physical or mental examination of a person unless it is 

made in contemplation of, and as preparation for, medical care and treatment; hence, if the 

physician’s examination of, or conference with, the person is for a purpose other than 

prescribing or doing any act for him in the way of medical care or treatment, the physician is 
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not disqualified as a witness and may disclose any information so acquired concerning such 

person, since the relation of physician and patient does not exist under such circumstances.”).

¶ 36 When asked about this at oral argument, counsel for contemnor argued that the rule is 

different in Illinois because Illinois has a statute providing that medical records turned over to 

the Secretary of State are confidential. Section 2-123(j) of the Illinois Vehicle Code (625 ILCS 

5/2-123(j) (West 2016)) provides as follows:

“Medical statements or medical reports received in the Secretary of State’s Office shall 

be confidential. Except as provided in this Section, no confidential information may be 

open to public inspection or the contents disclosed to anyone, except officers and 

employees of the Secretary who have a need to know the information contained in the 

medical reports and the Driver License Medical Advisory Board, unless so directed by 

an order of a court of competent jurisdiction. If the Secretary receives a medical report 

regarding a driver that does not address a medical condition contained in a previous 

medical report, the Secretary may disclose the unaddressed medical condition to the 

driver or his or her physician, or both, solely for the purpose of submission of a medical 

report that addresses the condition.” (Emphasis added.) 

See also id. § 6-908 (substantially similar).

¶ 37 This section, however, is substantially different from the physician-patient privilege found 

in section 8-802. The physician-patient privilege provides that information acquired by 

physicians and surgeons in attending patients may not be disclosed except in the specifically 

enumerated situations provided in the statute. See 735 ILCS 5/8-802 (West 2016). By contrast, 

the relevant provisions of the Vehicle Code provide that medical information submitted to the 

Secretary of State or the Driver’s License Medical Advisory Board is confidential and may not 

be disclosed “unless so directed by an order of a court of competent jurisdiction.” (Emphasis 

added.) 625 ILCS 5/2-123(j) (West 2016); see id. § 6-908. These sections do not place any 

restrictions on a court’s ability to order the disclosure of the information. Thus, the Vehicle 

Code appears to leave it to the discretion of the court to determine when disclosure of the 

information is necessary. Here, defendant answered interrogatory number 20 instead of 

asserting a privilege. After defendant disclosed that Dr. Nau provided his physician’s report to 

the Secretary of State, plaintiff subpoenaed that report, and the trial court ordered the Secretary 

of State to comply with the subpoena. Defendant obtained Dr. Nau’s report not for the purposes 

of receiving treatment but for maintaining his driving privileges. A court of competent 

jurisdiction ordered the Secretary of State to comply with the subpoena, and this order was not 

part of the order appealed to the appellate court. Plaintiff is therefore entitled to use this record, 

and we modify the appellate court’s judgment accordingly.

¶ 38 CONCLUSION

¶ 39 Pursuant to section 8-802(4) of the Code of Civil Procedure, the physician-patient privilege 

does not apply in any action in which the patient’s physical or mental condition is “an issue.” 

We agree with the appellate court that “an issue” for purposes of this section means placed in 

issue by the patient. Additionally, we urge the legislature to address section 8-802(4) and to 

make its intentions clear. Specifically, the legislature should clarify how something becomes 

“an issue” for purposes of this section, whether one party may put another party’s physical or 

mental condition at issue, and if the rule is any different for civil and criminal cases.
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¶ 40 For the above reasons, we affirm the appellate court’s decision, which (1) reversed the 

circuit court’s discovery order and (2) vacated the circuit court’s contempt order. We modify 

the appellate court’s judgment to provide that plaintiff’s counsel does not have to relinquish 

defendant’s medical records that he received from the Secretary of State. Pursuant to our 

authority under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we order plaintiff to 

relinquish the records obtained from defendant’s medical providers in a manner that will 

protect defendant’s privacy.

¶ 41 Appellate court judgment affirmed as modified.

¶ 42 Circuit court judgment affirmed in part and reversed in part.