Docket No. 90487–Agenda 21–September 2001.

EMILIO REDA et al. (Susan Capra, Contemnor-Appellant), v.  								ADVOCATE HEALTH CARE et al., Appellees.

Opinion filed February 22, 2002.

	JUSTICE FREEMAN delivered the opinion of the court:

	During discovery in a medical malpractice action, the circuit

court of Cook County twice ordered plaintiffs, Emilio and Mary

Reda, to disclose Emilio’s psychiatric records to defendants,

Advocate Health Care, formerly doing business as Lutheran

General Hospital, Inc. (hospital); Dr. Theresa Cappello; and Dr.

Melvin Katz. Plaintiffs’ attorney, Susan Capra, refused, invoking

the mental health therapist-patient privilege under the Mental

Health and Developmental Disabilities Confidentiality Act (Act)

(740 ILCS 110/1 et seq. (West 2000)). The court held Capra in civil contempt for refusing to comply with its discovery orders.

	The appellate court, inter alia, upheld the disclosure of Emilio’s psychiatric records. 316 Ill. App. 3d 1115. We allowed

Capra’s petition for leave to appeal. 177 Ill. 2d R. 315(a). We now

reverse the appellate and circuit courts, and remand the cause to

the circuit court for further proceedings.

BACKGROUND

	Plaintiffs’ first amended complaint alleged as follows. On June

6, 1994, Emilio was admitted to the hospital, coming under its care

and the care of Drs. Cappello and Katz, for the treatment of

arthritis in his right knee. That day, Dr. Katz performed a total

right knee arthroplasty, i.e., knee replacement. As a result of the surgery, Emilio developed an acute thrombosis of the popliteal

artery in his right leg. Defendants failed in several respects to

timely diagnose and treat this worsening condition. As a proximate

result of defendants’ negligence, Emilio “sustained injuries of a

personal and pecuniary nature.” Emilio sought recovery for these

injuries (count I), and as a result of Emilio’s injuries, Mary sought

recovery for the loss of Emilio’s society, companionship, and

affection (count II). In their answers, defendants denied that

plaintiffs were injured as alleged.

	In subsequent interrogatories, Dr. Katz and the hospital each

asked Emilio to specify his claimed injuries. Emilio answered each

interrogatory as follows:

		“I am not a medical doctor. Thus, I can only state what I

believe my problems are in laymen’s terms. As a result of

the occurrence, I suffered severe injuries to my leg (toes

amputated and calf muscle removed) which have resulted

in disability, disfigurement, pain and suffering. I also

suffered a stroke, heart problems and kidney problems. I

would refer you to the Lutheran General Hospital records

for details; Investigation continues.”

We note that Emilio’s hospital records were not included in the

record on appeal.

	Plaintiffs filed their current complaint on December 17, 1996.

During pretrial discovery, defendants requested from Dr. Samuel

DeLisi Emilio’s treatment records. Dr. DeLisi refused, explaining

that Emilio had not authorized their release. Plaintiffs objected to

defendants’ discovery request, invoking the mental-health

therapist-patient privilege. On November 14, 1997, defendants

Cappello and the hospital moved to compel Emilio to authorize the

release of his psychiatric records from Dr. DeLisi.

	On January 19, 1998, Emilio and Mary each testified at a

discovery deposition. During Emilio’s deposition, attorneys from

both sides agreed that questions regarding Dr. DeLisi’s psychiatric

treatment of Emilio would be deferred pending resolution of the

motion to compel. The record contains the following pertinent

excerpts from Emilio’s deposition:

			“Q. [Defense counsel] All right. My question related to

whether any doctor told you that you had sustained any

type of stroke. *** Did someone tell you that or use those

terms?

			A. I don’t know about if I sustained stroke damage, but

he said I had brain–he determined I had brain damage. He

gave me a puzzle to work out, 17 pieces. I couldn’t put

the puzzle together. Then, he did a couple other tests.

			And in more polite terms, he classified me one step

above an idiot.

* * *

			Q. Okay. At Lutheran General Hospital, did any

physician or doctor tell you that you had a stroke, of any

type?

* * *

			A. Not that I remember.

* * *

			Q. And then, you’ve told us a little bit about your

headaches. I want to ask you just a few more questions

about that.

			How frequently do you have headaches, nowadays, in

general? Is it like every day, every couple of days?

			A. Sir, them headaches have not gone away. I had

Dr.–the shrink, I kept accusing him–

			MS. CAPRA: We’re not going to talk about him.

			THE WITNESS: Okay. I’m sorry.”

During defense counsel’s questioning of Emilio regarding his

headaches, the following colloquy occurred:

			“Q. *** When did you start having those headaches?

			A. I can’t remember how far back they were, if they

were there all the time. I don’t remember, sir.

			Q. Did you have any headaches like the ones you’ve just

described for me before you went to Lutheran General for

your surgery?

			A. No, sir. I never had–I wouldn’t even take aspirins for

anything. I didn’t believe in any medication for the head.

I never took nothing.

			Q. Do you take anything for the headaches now?

			A. I don’t take them for the headaches. I take them

more for the heart and–I will not take medicine for

headaches, sir.”

	During Mary’s deposition, defense counsel questioned her

regarding, inter alia, Emilio’s injuries. Answering their questions, Mary testified regarding Emilio’s comprehension following the

surgery. She testified that Emilio was not able to perform many tasks, e.g., operating a shower faucet and cutting his food with a knife. Mary also testified that Emilio was “very emotional” and

“very frustrated.” Mary also referred to Emilio’s lack of affection

subsequent to the surgery. She testified: “He’s–he can be very

mean, extremely mean. And I’m always at fault. I make wrong

decisions, everything. It’s a hard situation. Sometimes I want to go

crawl under the bed and stay there for ten days.”

	On February 20, 1998, the circuit court denied, without

prejudice, the motion to compel production of Emilio’s psychiatric

records. The court did not have before it plaintiffs’ deposition

testimony. On April 7, 1998, based on plaintiffs’ depositions, Dr.

Cappello and the hospital sought rehearing on their motion to

compel. On August 20, 1998, the circuit ordered plaintiffs to

submit Emilio’s psychiatric records to the court for an in camera inspection. On November 5, 1998, the court ordered plaintiffs to

disclose Emilio’s psychiatric records to defendants. On March 17,

1999, the court denied plaintiffs’ motion to vacate the disclosure

order and again ordered plaintiffs to disclose Emilio’s psychiatric

records to defendants.

	On April 6, 1999, the circuit court held plaintiffs’ attorney,

Susan Capra, in civil contempt for refusing to comply with the

court’s discovery orders. The court fined Capra $100 plus $10 per

day until Capra disclosed Emilio’s psychiatric records to

defendants.

	The appellate court, with one justice dissenting, upheld the

disclosure of Emilio’s psychiatric records. The court concluded

that, under the Act, Emilio had placed his mental condition at issue

in this litigation. 316 Ill. App. 3d at 1118-19. Further, the appellate

court upheld the circuit court’s determination that the remaining

statutory requirements for disclosure were met. 316 Ill. App. 3d at

1119. The appellate court also vacated the circuit court’s order of

contempt against Capra, finding that Capra was not contemptuous

of the circuit court, but rather had subjected herself to a contempt

finding only to secure appellate review of the circuit court’s

disclosure orders. 316 Ill. App. 3d at 1119.

	The dissent concluded that Emilio had not placed his mental

condition at issue in the medical malpractice action. Rather, the

dissent opined, plaintiffs merely answered defense counsel’s questions during their depositions, and that their truthful answers

did not give rise to disclosure under the Act. 316 Ill. App. 3d at

1119-20 (South, J., dissenting).

	Capra appeals from the judgment of the appellate court. We

granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiffs. 155 Ill. 2d R. 345.

DISCUSSION

I. Scope and Standard of Review

	Because discovery orders are not final orders, they are not

ordinarily appealable. Norskog v. Pfiel, No. 89985, slip op. at 7197 Ill. 2d 60, 69 (July 26, 2001). Rather, they are reviewable on appeal from the final judgment.

People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171 (1981).

	However, it is well settled that a contempt proceeding is an

appropriate method for testing the correctness of a discovery

order. Norskog, slip op. at 7197 Ill. 2d 60,at 69; People ex rel. General Motors Corp. v. Bua, 37 Ill. 2d 180, 189 (1967) (collecting cases); Lewis v. Family Planning Management, Inc., 306 Ill. App. 3d 918, 922 (1999). When an individual appeals from a contempt sanction

imposed for violating, or threatening to violate, a discovery order,

the contempt finding is final and appealable and presents to the

reviewing court the propriety of that discovery order. See Norskog, slip op. at 7197 Ill. 2d at 69; Silverstein, 87 Ill. 2d at 171-72, 174.

	Generally, a trial court’s rulings on discovery matters will not

be disturbed on appeal absent a manifest abuse of discretion.

However, the applicability of a statutory evidentiary privilege, and

any exceptions thereto, are matters of law subject to de novo review. Norskog, slip op. at 8197 Ill. 2d at 6970-71; D.C. v. S.A., 178 Ill. 2d 551, 559-60 (1997). In this case, the determination of whether Emilio

introduced his mental condition as an element of his claim, so as to

waive the statutory mental-health therapist-patient privilege, is a

matter of law subject to de novo review. However, the circuit court’s secondary findings required under the Act are factual

questions subject to an abuse-of-discretion standard. D.C., 178 Ill. 2d at 560.

II. The Mental-Health Therapist-Patient Privilege

	In determining whether Emilio’s psychiatric records are

privileged under the Act, it is first necessary to look at the

language of the Act itself. See Niven v. Siqueira, 109 Ill. 2d 357, 365 (1985). The legislative intent of a statute is best determined

from the plain and ordinary meaning of the statutory language.

Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 210, 216 (1994); see, e.g., People v. Pawlaczyk, 189 Ill. 2d 177, 195 (2000). If the legislative intent is clear from the statutory language, the

court must confine its inquiry to a consideration of that language

and must not look to extrinsic aids. People ex rel. Baker v. Cowlin, 154 Ill. 2d 193, 197 (1992). Where the language is clear and

unambiguous, we must apply it as written. Paris v. Feder, 179 Ill. 2d 173, 177 (1997); see Sassali v. Rockford Memorial Hospital, 296 Ill. App. 3d 80, 83 (1998). However, if the statutory language

is susceptible of more than one interpretation, the court may look

beyond the language to consider the purposes of the statute. In re B.C., 176 Ill. 2d 536, 542-43 (1997); see Sisters of the Third Order of St. Francis v. People ex rel. Barra, 151 Ill. App. 3d 875, 877-78 (1987).

	The Act provides: “All records and communications shall be

confidential and shall not be disclosed except as provided in this

Act.” 740 ILCS 110/3(a) (West 2000). The records made

confidential under the Act refer to “any record kept by a therapist

or by an agency in the course of providing mental health or

developmental disabilities service to a recipient concerning the

recipient and the services provided”; the communications made

confidential under the Act refer to “any communication made by a

recipient or other person to a therapist or to or in the presence of

other persons during or in connection with providing mental health

or developmental disability services to a recipient. Communication

includes information which indicates that a person is a recipient”;

and “ ‘[r]ecipient’ means a person who is receiving or has received

mental health or developmental disabilities services.” 740 ILCS

110/2 (West 2000).

	Section 10(a) of the Act provides: “Except as provided herein,

in any civil, criminal, administrative, or legislative proceeding ***

a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the

disclosure of the recipient’s record or communications.” 740 ILCS

110/10(a) (West 2000). Section 10(a) then lists exceptions to this

evidentiary privilege. The first exception, which is at issue in this

case, provides in pertinent part:

			“(1) Records and communications may be disclosed in

a civil, criminal or administrative proceeding in which the

recipient introduces his mental condition or any aspect of

his services received for such condition as an element of

his claim or defense, if and only to the extent the court in

which the proceedings have been brought *** finds, after

in camera examination of testimony or other evidence, that

it is relevant, probative, not unduly prejudicial or

inflammatory, and otherwise clearly admissible; that other

satisfactory evidence is demonstrably unsatisfactory as

evidence of the facts sought to be established by such

evidence; and that disclosure is more important to the

interests of substantial justice than protection from injury

to the therapist-recipient relationship or to the recipient or

other whom disclosure is likely to harm. *** [F]or

purposes of this Act, *** in any action in which pain and

suffering is an element of the claim, mental condition shall

not be deemed to be introduced merely by making such

claim and shall be deemed to be introduced only if the

recipient or a witness on his behalf first testifies

concerning the record or communication.” 740 ILCS

110/10(a)(1) (West 2000).

Thus, before the circuit court can order disclosure, it must find that

the recipient has introduced his mental condition as an element of

his claim or defense. The recipient does not introduce his mental

condition merely by claiming pain and suffering.  In such a case, the recipient introduces his mental condition only if he or one of his witnesses first testifies concerning the record or communication. If the recipient has

not placed his mental health at issue, disclosure of the records or

communications is not permitted. If the recipient has introduced his

mental condition, the court must conduct an in camera examination of the evidence to determine if it is, inter alia, relevant, probative, and not unduly prejudicial.

	The appellate court held that Emilio had introduced his mental

condition as an element of his claim. The court observed that plaintiffs, in their depositions, testified regarding Emilio’s

headaches, loss of memory, decline in comprehension, difficulties

in performing daily activities, and changes in personality. The

appellate court reasoned:

		“Plaintiffs contend that Emilio’s marked changes in

personality, loss of memory, deficits in comprehension and

difficulty performing routine tasks are neurological injuries

only. We, however, believe that these ‘injuries’ may be

reasonably interpreted or characterized as psychological

traumas. Accordingly, we believe that testimony given by

plaintiffs regarding these ‘injuries’ placed Emilio’s mental

health at issue.” 316 Ill. App. 3d at 1119.

	Assigning error to the appellate court, Capra contends that

Emilio “suffered brain damage, which has produced many

behavioral consequences” and that he now is experiencing

“physical limitations and the everyday frustrations that go along

with them.” Capra urges an interpretation of “mental condition,”

as used in the Act, that excludes physical injuries. Agreeing with

the appellate court, defendants contend that Emilio’s “cognitive

deficiencies” may have been “a manifestation of a mental condition

completely unrelated to his medical treatment.” Defendants urge an

interpretation of “mental condition” that includes physical injuries

with a psychological component.

	We agree with Capra that Emilio had not introduced his

mental condition as an element of his medical malpractice claim. 

Therefore, he has not waived the statutory privilege, and disclosure

of his psychiatric records is not permitted.

	Emilio did not place his mental condition at issue merely by

claiming damages for what is a neurological injury, i.e., stroke and/or other brain damage. As the dissenting justice in the appellate

court aptly noted: “A neurological injury is not synonymous with

psychological damage * * * . Nor does neurological injury directly

implicate psychological damage.” 316 Ill. App. 3d at 1120 (South,

J., dissenting). If that were true, in every case in which the plaintiff

claimed damages stemming from a physical injury to the brain, the

door to discovery of the plaintiff’s mental-health records would

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

of the Act would effectively eviscerate the privilege.

	Our interpretation of section 10(a)(1) of the Act accords with

earlier case law. Interpreting a predecessor statute, our appellate

court held that a litigant claiming pain and suffering does not ipso facto place his or her mental condition at issue. See Tylitzki v. Triple X Service, Inc., 126 Ill. App. 2d 144, 148-50 (1970); Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405, 407-09 (1966). The court in Webb found it difficult to conclude that one undergoing pain and suffering necessarily suffers deterioration in mental

condition, and held that a mere allegation of pain and suffering

originating in physical trauma did not ipso facto result in “trauma affecting the mentality.” Webb, 73 Ill. App. 2d at 408. The court refused to “open a Pandora’s box of inquiry into the mental

condition of the claimant where it is not specifically made a part of

the claim.” Webb, 73 Ill. App. 2d at 409.

	Even if, as defendants maintain, the psychiatric records have

a bearing on causation, relevancy is not decisive of whether a

plaintiff has introduced his mental condition as an element of his

claim. D.C., 178 Ill. 2d at 566; see Tylitzki, 126 Ill. App. 2d at 148-501  (rejecting argument that questioning of plaintiff’s

psychiatrist was necessary to determine whether claim of pain and

suffering resulted from physical trauma sustained in the accident or

from some other cause). Although defendants might be denied

access to information that could benefit their case, any “unfairness”

is the same that is present any time a privilege against disclosure is

exercised. Evidentiary privileges, generally, “ ‘are not designed to

promote the truth -seeking process, but rather to protect some

outside interest other than the ascertainment of truth at trial.’ ”

Norskog, 197 Ill. 2d at 83, quoting D.C., 178 Ill. 2d at 83561-62.

	Moreover, it is not enough that defendants, under their theory

of the case, placed Emilio’s mental condition at issue. Also, while

Mary had her own case for loss of society, she could not place

Emilio’s mental condition at issue in his case. To waive the

statutory privilege, the Act requires the “recipient” of mental healthmental-

health services to introduce his or her mental condition. 740 ILCS

110/10(a)(1) (West 2000); D.C., 178 Ill. 2d at 564-65; see People v. Gemeny, 313 Ill. App. 3d 902, 911 (2000) (collecting cases) (section 10(a)(1) exception applies only when a party affirmatively places his or her own mental condition at issue). The court in

Tylitzki, 126 Ill. App. 2d at 149, explained that:

			“i[I]t is the affirmative aspect which should be

controlling. The privilege is too important to be brushed

aside when the mental condition of the plaintiff may be

only peripherally involved. It is not difficult to consider the

many ways in which it could be argued that mental

conditions were at issue, and soon there would exist more

areas of inquiry deemed exceptions to the privilege than

there would be areas of inquiry protected by the

privilege.” 

	Our conclusion supports, and is supported by, the purpose of

the Act. The Act represents a comprehensive revision and repeal

of previous statutes pertaining to psychotherapeutic

communications. See Laurent v. Brelji, 74 Ill. App. 3d 214, 216 (1979). When viewed as a whole, the Act constitutes a strong

statement by the General Assembly about the importance of

keeping mental healthmental-health records confidential. Norskog, 197 Ill. 2d at 71-72. Confidentiality motivates persons to seek needed treatment.

Further, by encouraging complete candor between patient and

therapist, confidentiality is essential to the treatment process itself. Norskog, 197 Ill. 2d at 72 (and cases cited therein).

	The legislature carefully drafted the Act to maintain the

confidentiality of mental healthmental-health records except in the specific

circumstances explicitly enumerated. In each case where disclosure

is allowed under the Act, the legislature has been careful to restrict

disclosure to that which is necessary to accomplish a particular

purpose. Exceptions to the Act are narrowly crafted. Norskog, 197 Ill. 2d at 71. “Consequently, anyone seeking the nonconsensual

release of mental healthmental -health information faces a formidable challenge

and must show that disclosure is authorized by the Act.” Norskog, 197 Ill. 2d at 72.

	We note the suggestion of amicus that the determination of whether Emilio has placed his mental condition at issue should be

based solely on the allegations of the underlying complaint. While

pertinent cases contain references to pleadings (see, e.g., D.C.,,, 178 Ill. 2d at 566; Tylitzki, 126 Ill. App. 2d at 151; Webb, 73 Ill. App. 2d at 409), section 10(a)(1) of the Act does not contain such a limitation. In interpreting a statute, it is never proper for a court to

depart from plain language by reading into a statute exceptions,

limitations, or conditions which conflict with the clearly expressed

legislative intent. Knox County of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill. 2d 546, 556 (1999). A party may introduce his or her mental condition in several ways during the

course of litigation, including, e.g., in the pleadings, answers to written discovery, a deposition, in briefs or motions, in argument

before the court, or by stipulation. Based on the record before us,

we hold that Emilio had not introduced his mental condition as an

element of his claim as required by section 10(a)(1) of the MHDDCAct.

	In the present case, however, this is not the controlling issue under the Act. Rather, the issue before us is far more narrow. As

Capra notes, the appellate court failed to consider the last clause

of section 10(a)(1) of the Act, which pertains specifically to claims

of pain and suffering.

	During discovery, Emilio expressly asserted pain and suffering as an element of plaintiffs’ claims. See 15 Ill. L. & Prac. Damages §102, at 516 (2000) (pain and suffering need not be specially

pleaded); accord 2 Nichols Illinois Civil Practice §30.101 (rev. vol.

1996). Thus, based on the plain language of the Act, Emilio’s

mental condition is considered to be introduced only if Emilio or Mary first testified regarding his “records” or “communications,” as the Act

defines those terms.

	At this early stage of discovery, as reflected in this record, neither Emilio nor Mary first testified regarding any record

concerning psychiatric services provided by Dr. DeLisi, or any

communication between him and Emilio. In their separate

interrogatories to Emilio, the hospital and Dr. Katz each asked

Emilio to identify all individual health-care providers who had

treated Emilio subsequent to his alleged injuries. Emilio answered

each interrogatory by listing the names of physicians, including Dr. DeLisi, without any description of their respective specialties. In

his interrogatories to Mary, Dr. Katz asked her if, subsequent to

Emilio’s alleged injuries, she had been “treated or examined for any

medical or psychological condition” and, if so, to identify, inter alia, “[t]he name and address of the physician or psychologist who treated you.” Mary objected to the question and, subject to the

objection, listed four physicians, including Dr. DeLisi, without any

description of their respective specialties. Mary also identified Dr.

DeLisi as a health professional with whom she consulted regarding

her marital and sexual problems with Emilio.

	Also, the pertinent excerpts of their depositions show that Capra occasionally advised each of them not to volunteer information

regarding Emilio’s psychiatric treatment, and not to answer defense

counsel’s questions regarding the subject. Based on the record

before us, we cannot say that Emilio introduced his mental

condition as an element of his claim as required by the plain

language of section 10(a)(1) of the Act.

	We lastly observe that the fundamental fairness exception to

the mental healthmental-health therapist-patient privilege (see D.C. v. S.A., 178 Ill. 2d 551 (1997)) does not apply here. In D.C., we agreed with the appellate court that the plaintiff had not introduced his mental condition into

the case within the meaning of section 10(a)(1) of the Act. D.C., 178 Ill. 2d at 566-67. However, this court held that “fundamental

fairness commands that the privilege yield.” D.C., 178 Ill. 2d at 568. We have explained this holding as follows:

		“Underpinning this ruling was our refusal to place our

imprimatur on plaintiff’s wielding the privilege as a sword

to manipulate the legal system, coupled with the

recognition that, after in camera inspection, the trial court restricted discovery to information which met all other

requirements of section 10(a)(1) of the Act and had little

to do with plaintiff’s mental health treatment and more to

do with plaintiff’s conduct at the time of the accident.

Furthermore, the information was obtainable from no

other source and could, potentially, absolve defendants of

any liability and bar plaintiff’s recovery. We concluded

that, on balance, the interests of substantial justice and

fundamental fairness outweighed plaintiff’s right to assert

the confidentiality privilege under the unique facts of the

case.” Norskog, slip op. at 19197 Ill. 2d at 82, explaining D.C. v. S.A., 178 Ill. 2d 551 (1997).

	As in Norskog, the facts in this case are distinguishable from those in D.C. The record here does not show that plaintiffs are invoking the mental healthmental-health therapist-patient privilege to exploit or subvert the legal process. “Indeed, the confidentiality privilege is

being employed precisely as intended–to shield information which

our legislature has seen fit to protect.” Norskog, slip op. at 197 Ill. 2d at 83.

	Also, unlike D.C., information regarding Emilio’s injuries is available from several additional sources. The record contains

references to Emilio’s medical records maintained by the hospital

and various physicians. Defendants may question and contest all

opinions and conclusions contained therein. Specifically regarding

Emilio’s mental condition, defendants may have Emilio tested or

examined by a mental healthmental-health expert and present a defense based on

the expert’s opinion. See 166 Ill. 2d R. 201(a); accord 4 R.

Michael, Illinois Practice §31.3, at 104 (1989) (“The physical or

mental condition of any party whose condition is in issue may be

examined by an expert chosen by the adverse party”). Thus,

defendants would be able to argue that any or all of Emilio’s

behavioral or cognitive limitations are based on a mental condition

and not their negligence.

	Also, unlike D.C., there is absolutely no indication that anything that might be revealed in Emilio’s mental healthmental-health records

would completely bar his recovery and absolve defendants of

liability. See Norskog, sli p op. at 20-21197 Ill. 2d at 83-84. Any information contained in Emilio’s psychiatric records would go only to

damages and not liability. Plaintiffs seek damages for several severe

physical injuries.

	As we concluded in Norskog:

			“In sum, the fundamental fairness considerations which

drove our opinion in D.C. are not present in this case. Absent truly extraordinary circumstances, not present

here, the statutory privilege must prevail. To recognize a

fundamental fairness exception in this case would

eviscerate the statutory privilege.” Norskog, slip op. at 21197 Ill. 2d at 85.

Our disposition of this appeal obviates the need to address other

issues raised by the parties, such as the existence or sufficiency of

the circuit court’s findings regarding the Act’s secondary

requirements. See Norskog, slip op. at 17197 Ill. 2d at 80.

	Accordingly, we reverse the judgment of the appellate court

and the circuit court’s discovery order. Further, we reverse the

contempt finding against Capra on this basis. See In re Marriage of Bonneau, 294 Ill. App. 3d 720, 723 (1998) (“where the trial court’s discovery order is invalid, a contempt judgment for failure

to comply with the discovery order must be reversed”).

CONCLUSION

	For the foregoing reasons, the judgment of the appellate court

and the discovery order of the circuit court of Cook County are

reversed, and the cause is remanded to the circuit court for further

proceedings consistent with this opinion.

Appellate court reversed;

circuit court reversed;

cause remanded.

[SPECIAL CONCURRENCE PRIOR TO REVISION]

	JUSTICE FITZGERALD, specially concurring:

	I agree with the majority that Emilio and Mary Reda should

not have been ordered to disclose Emilio’s psychiatric records. I

disagree, however, with the majority’s reasons therefor.

	“In determining whether section 10(a)(1) [of the Act] applies

to a given case, a trial court must first determine as a matter of law

whether a recipient might have introduced his mental condition as

an element of his claim or defense so as to waive the therapist-

recipient privilege recognized under the Act.” D.C. v. S.A., 178 Ill. 2d 551, 560 (1997). In the present case, the trial court did just

that–it concluded that Emilio had, as a matter of law, introduced

his mental condition as an element of his claim so as to waive the

privilege. The appellate court agreed. Rather than consider the correctness of that conclusion, the majority instead determines that

the pain-and-suffering provision of section 10(a)(1) controls the

outcome of this case. Slip op. at 8. Because I do not find the pain-

and-suffering provision controlling, I would reach the issue actually

briefed and argued before this court, namely: whether Emilio

necessarily introduced his mental condition where he claimed

damages for a physical injury to the brain resulting in cognitive deficiencies.

	In reaching its conclusion, the majority focuses on the final

sentence of section 10(a)(1), which states:

		“[F]or purposes of this Act, *** in any action in which

pain and suffering is an element of the claim, mental

condition *** shall be deemed to be introduced only if the

recipient or a witness on his behalf first testifies

concerning the record or communication.” 740 ILCS

110/10(a)(1) (West 2000).

Employing a plain language analysis, the majority concludes that,

because Emilio claimed pain and suffering, waiver of the statutory

privilege can only occur if Emilio, or someone on his behalf, first

testifies regarding the privileged record or communication. Slip op.

at 8. The majority reaches this conclusion without regard,

however, to any other claims which Emilio may have made and

which defendants contend introduced his mental condition. Thus,

under the majority’s analysis, a plaintiff’s claim of pain and

suffering effectively trumps any other claims, even if such other

claims demonstrate that the plaintiff has placed his or her mental

condition in issue. In other words, as long as a plaintiff claims pain

and suffering, a court is precluded from considering whether a

plaintiff has otherwise waived the statutory privilege because

waiver can only occur if the plaintiff “first testifies” concerning the

record.

	Although I recognize that this court must, as a general rule,

interpret and apply a statute as written (Henrich v. Libertyville High School, 186 Ill. 2d 381, 394-95 (1998)), this court is also obligated to avoid an interpretation that leads to an unreasonable

or absurd result (Antunes v. Sookhakitch, 146 Ill. 2d 477, 486 (1992); Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992); see also Jones v. Industrial Comm’n, 188 Ill. 2d 314, 328 (1999) (statutes must be construed “so that they may

be applied in a practical and commonsense manner”)). Thus,

proper interpretation of a statutory provision cannot be based

simply on its language, but must be grounded on the consequences

that would result from one interpretation or the other. Mulligan v. Joliet Regional Port District, 123 Ill. 2d 303, 313 (1988). With these principles in mind, I would find that the pain-and-suffering

provision of section 10(a)(1) operates simply as a codification of

early case law which held that a litigant claiming pain and suffering

does not ipso facto place his or her mental condition in issue. See Tylitzki v. Triple X Service, Inc., 126 Ill. App. 2d 144, 149-50 (1970); Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405, 407- 08 (1966) (interpreting predecessor statute). This reading of the

pain-and-suffering provision would not in any way erode the

important privilege which attaches to mental healthmental-health records and

communications, but would avoid the problematic result, to which

the majority opinion leads, of precluding a court from considering

the entirety of a plaintiff’s claims when determining whether the

plaintiff has, as a matter of law, introduced his or her mental

condition.

	Turning now to the issue addressed by the parties, I would

hold that Emilio did not introduce his mental condition as an

element of his medical malpractice claim and, therefore, did not

waive the statutory privilege.

	In support of their contention that Emilio placed his mental

condition in issue, defendants cite to Emilio’s answers to written

discovery, as well as the deposition testimony of Emilio and his

wife, Mary. According to Emilio, as a result of defendants’

negligence, he suffered severe injury to his leg, a stroke, heart

problems, and kidney problems. He also suffers from headaches

and has been told he has brain damage. According to Mary, Emilio

is not able to perform ordinary tasks and is emotional and

frustrated. Putting aside any issue of whether Mary’s deposition

testimony is properly considered, I do not believe that Emilio has

placed his mental condition in issue merely by claiming damages for

what is a neurological injury, i.e., stroke and/or other brain damage. As the dissenting justice in the appellate court aptly noted,

“A neurological injury is not synonymous with psychological damage ***. Nor does neurological injury directly implicate

psychological damage.” 316 Ill. App. 3d at 1120 (South, J.,

dissenting). If that were true, in every case in which the plaintiff claimed damages stemming from a physical injury to the brain, the

door to discovery of the plaintiff’s mental healthmental-health records would

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

would effectively eviscerate the privilege.

	Our appellate court reached essentially the same conclusion in Webb when it rejected the defendant’s contention that the plaintiff’s claim of pain and suffering placed her mental condition

in issue. The appellate court found it difficult to conclude that one

undergoing pain and suffering necessarily suffers deterioration in

mental condition, and held that a mere allegation of pain and

suffering originating in physical trauma did not ipso facto result in “trauma affecting the mentality.” Webb, 73 Ill. App. 2d at 408. The appellate court refused to “open a Pandora’s box of inquiry into

the mental condition of the claimant where it is not specifically

made a part of the claim.” Webb, 73 Ill. App. 2d at 409.

	Even if, as defendants maintain, the psychiatric records have

a bearing on causation, relevancy is not decisive of whether a

plaintiff has introduced his mental condition as an element of his

claim. D.C., 178 Ill. 2d at 566; see also Tylitzki, 126 Ill. App. 2d at 148 (rejecting argument that questioning of plaintiff’s

psychiatrist was necessary to determine whether claim of pain and

suffering resulted from physical trauma sustained in the accident or

from some other cause). Although defendants might be denied

access to information that could be beneficial to their case, any

“unfairness” is the same that is present any time a privilege against

disclosure is exercised. Norskog v. Pfiel, 197 Ill. 2d 60, 83 (2001).

	Moreover, it is not enough that defendants, under their theory

of the case, have placed Emilio’s mental condition in issue. In order

to waive the statutory privilege, the Act requires the “recipient” of

mental healthmental-health services “introduce[ ] his mental condition.” 740

ILCS 110/10(a)(1) (West 2000); D.C., 178 Ill. 2d at 564-65; see also People v. Gemeny, 313 Ill. App. 3d 902, 910-11 (2000) (section 10(a)(1) exception applies only when a party affirmatively

places his own mental condition in issue).

	Based on the record before this court, I would hold that, as a

matter of law, Emilio has not introduced his mental condition as an

element of his claim. Accordingly, I agree with the majority’s

conclusion that defendants are not entitled to production of

Emilio’s psychiatric records.

	CHIEF JUSTICE HARRISON and JUSTICES McMORROW

and THOMAS join in this special concurrence.