2018 IL 123152

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 123152)

SCARLETT PALM, Appellant, v. RUBEN HOLOCKER 

(Karl Bayer, Appellee).

Opinion filed December 13, 2018.—Modified Upon Denial of Rehearing February 

28, 2019.

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 
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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.”
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Defendant asserted that any recovery that plaintiff received should be reduced by 

that portion of contributory negligence attributable to plaintiff.

¶ 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 
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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 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 
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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, 
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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 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).

 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. 
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¶ 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.

¶ 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, 

 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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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 

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

the patient. 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 
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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).

¶ 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. 

 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.”
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¶ 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 (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 

 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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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 

 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.”).
- 13 -

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). 

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

“Any 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 
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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 491.

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 (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.
- 15 -

¶ 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. 
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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’).”

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:
- 17 -

“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 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 
- 18 -

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 physician-patient 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 
- 19 -

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 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. 
- 20 -

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.

¶ 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 Supreme 
- 21 -

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.