2020 IL App (2d) 190926-U 

No. 2-19-0926 

Order filed February 7, 2020 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

COLLEEN EAMES, individually and as parent ) Appeal from the Circuit Court 

and next friend of ANNASTACIA EAMES ) of Du Page County. 

and VALENTIA EAMES, ) 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 17-CH-193 

) 

DIANE YAHIRO, ) 

) 

Defendant, ) 

) 

and ) 

) 

PATRICIA MASEK, ) Honorable 

) Paul M. Fullerton, 

Movant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE JORGENSEN delivered the judgment of the court. 

Justices Zenoff and Schostok concurred in the judgment. 

ORDER

¶ 1 Held: Appeal dismissed for lack of jurisdiction. 
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¶ 2 Plaintiff, Colleen Eames, individually and as parent and next friend of Annastacia Eames 

and Valentina Eames (her daughters), sued defendant, Diane Yahiro,1 her sister, seeking review 

of her actions as agent for Patricia Masek, the parties’ mother, whom she alleged had significant 

memory loss and cognitive decline. 755 ILCS 45/2-10(a) (West 2018). Colleen sought an 

injunction, preventing Diane from hindering Colleen’s communication with, and access to, 

Patricia; a finding that Diane breached her fiduciary duties as Patricia’s agent; and Diane’s removal 

as such. Pursuant to Colleen’s request, the trial court entered a qualified protective order under 

the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Pub. L. No. 104-191, 

§ 264, 110 Stat. 1936 (1996)) rules addressing disclosure of protected health information (45 

C.F.R. § 164.512(e) (2016) (authorizing production of records containing protected health 

information if the party seeking production requests a protective order)), authorizing the parties to 

subpoena Patricia’s protected health information. In a limited-scope appearance, Patricia, 

asserting her physician-patient privilege (735 ILCS 5/8-802 (West 2018)), moved to enjoin 

Colleen from seeking subpoenas for her medical records. The trial court denied the motion. 

Patricia appeals, arguing that the trial court erred in denying injunctive relief, where it failed to 

apply to her medical records the physician-patient privilege. We dismiss the appeal for lack of 

jurisdiction.

¶ 3 I. BACKGROUND

¶ 4 On February 2, 2017, Colleen, who resides in Nebraska, filed her initial complaint against 

her sister, Diane, who resides in Du Page County. In a single-count amended complaint, filed on 

1 Various portions of the record contain the alternative spelling of “Dianne” for defendant. 

For consistency, we use “Diane.”
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March 27, 2018, Colleen sought review of Diane’s conduct as Patricia’s agent and requested 

appropriate relief under section 2-10(a) of the Illinois Power of Attorney Act (Act) (755 ILCS 

45/2-10(a) (West 2018) (allowing any interested person to petition the trial court, upon a finding 

that the principal lacks capacity to control or revoke the agency, to construe a power of attorney, 

review the agent’s conduct, and grant appropriate relief, including compensatory damages). 

Colleen alleged that Diane was acting as Patricia’s agent under Patricia’s purported power of 

attorney for health care, dated February 22, 2016, a copy of which she attached to her amended 

complaint.2

 

¶ 5 Colleen further alleged that, in 2011, Patricia, who lived in Nebraska with her son, Richard

Masek (who has autism and developmental/intellectual disabilities), had undergone testing that 

revealed significant memory loss and cognitive decline and she was prescribed 

dementia/Alzheimer’s medication. According to Colleen, in February 2014, to Colleen’s surprise,

Diane and her husband removed Patricia and Richard from their Nebraska home and moved them 

to Diane’s home in Downers Grove, where they have since resided. Since that time, Diane has 

been Patricia’s caretaker and primary decisionmaker. 

¶ 6 In 2014, Patricia was in the moderate-to-late stages of Alzheimer’s disease, suffered from 

severe short-term memory loss, and needed a caregiver. Colleen alleged that, at this time, Diane

2 Twice previously, Diane had acted as Patricia’s agent under purported powers of attorney 

for health care, dated January 27, 2016, and July 18, 2015. She had also acted as Patricia’s agent 

under Patricia’s purported durable power of attorney, dated July 17, 2015, and another such 

document dated November 27, 2013. Prior to the execution of the health care powers of attorney, 

Patricia had named Colleen as agent under her January 29, 2008, power of attorney for health care.
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admitted that she wanted Colleen and her family to be with Patricia as much as possible, but was 

concerned that Colleen would attempt to move Patricia and Richard back to Nebraska and, thus, 

would not allow Colleen to visit alone with them. Prior to her removal from Nebraska, Patricia 

had frequent and positive interactions with Colleen and her family. Following her removal from 

Nebraska, Patricia has had limited interaction with Colleen and her family, according to Colleen, 

due to Diane’s involvement, conduct, and decisions she has made for Patricia. Colleen further 

alleged that Patricia’s estrangement and isolation from her and her family (and other family 

members and friends) directly result from Diane’s involvement, conduct, and decisions made for 

Patricia and influence on her. Colleen alleged that she and others have attempted to visit and 

communicate with her mother, but have not received any reply. 

¶ 7 Colleen further asserted that, as agent for Patricia, Diane undertook a fiduciary duty to her 

and is required to act in Patricia’s best interests. Colleen argued that Diane breached that duty by 

prohibiting her mother from visiting or communicating with Colleen and her family and caused 

Patricia to have mistaken or delusional views concerning Colleen in order to perpetuate the 

estrangement and isolation fostered by Diane, all of which were contrary to Patricia’s true wishes 

and desires (as expressed, in part, in her deposition taken in one of the family’s Nebraska trustrelated cases). Colleen further asserted that Diane’s conduct was not in Patricia’s best interests, 

and the harm therefore was irreparable in the absence of an injunction. Diane was not acting in 

Patricia’s best interests, and Patricia’s desire to visit and communicate with her, Colleen asserted, 

showed that Colleen was likely to be successful on the merits of her claim. She also argued that 

no adequate legal remedy existed, because the matter involved family visitation and 

communication, Diane’s decision-making, and Patricia’s diagnoses and declining health. 
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¶ 8 Colleen sought an order: (1) preliminarily enjoining Diane from preventing or hindering 

Patricia from reasonable access, visitation, and communication with Colleen and her 

grandchildren; (2) directing Diane to allow Colleen reasonable access to, visitation, and 

communication with Patricia (and vice versa); (3) finding that Diane breached her fiduciary duties

(as agent) to Patricia and failed to appropriately act as Patricia’s agent pursuant to section 2-10 of 

the Act; (4) removing Diane as Patricia’s agent; (5) granting judgment in Colleen’s favor; (6) 

permanently enjoining Diane from prohibiting, preventing, or otherwise hindering Patricia from 

reasonable access, visitation and communication with Colleen; and (7) attorney fees and costs. 

¶ 9 In her answer, Diane asserted that the decision to move to her home was Patricia’s. She 

also denied that she was Patricia’s decisionmaker and denied that Patricia lacked capacity to handle 

her personal and financial affairs. Diane also asserted that she had not hindered Patricia from 

communicating with Colleen, argued that Patricia’s deposition testimony was taken out of context, 

and denied that Patricia desired to communicate with Colleen. 

¶ 10 On June 22, 2018, Diane moved for summary judgment, asserting that, since January 15, 

2018, Patricia no longer resided in Illinois and, on May 29, 2018, Patricia had discharged Diane 

as agent under her healthcare power of attorney. (She attached her affidavit attesting to this, along 

with a copy of a letter purportedly from Patricia informing her that her power of attorney had been 

revoked and a new agent assigned. She did not attach a copy of any new power of attorney for 

healthcare.) Diane argued that, pursuant to section 2-10 of the Act, the court had jurisdiction to 

adjudicate the case only if a principal had appointed an agent and the principal either cannot control 

or revoke the agency. Based upon the termination of the healthcare power of attorney, she 

contended, there was no genuine issue of material fact but that Patricia had the ability to terminate 

the power of attorney and had done so. 
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¶ 11 On March 12, 2019, the court denied Diane’s summary-judgment motion “for the reasons 

stated on the record.” The record on appeal does not contain a report of proceedings from the 

hearing. 

¶ 12 Subsequently, on August 1, 2019, Colleen moved for entry of a protective order pursuant 

to Illinois Supreme Court Rule 201(c)(1) (eff. May 29, 2014) (allowing courts to regulate 

discovery “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or 

oppression”) and the HIPAA rules addressing disclosure of protected health information (45 

C.F.R. § 164.512(e) (2016) (authorizing production of records containing protected health 

information if the party seeking production requests a protective order)). She asserted that 

assessment of Patricia’s capacity to revoke or control Diane’s conduct as her agent was required 

in assessing whether Diane breached her duties to Patricia. Colleen argued that Patricia’s medical 

records would likely lead to the discovery of admissible evidence concerning her capacity to 

control her agent’s conduct. Colleen asserted that she intended to issue subpoenas for the 

production of records related to Patricia’s medical treatment, which would include protected health 

information under HIPAA, and desired a protective order to comply with the statute and protect 

against unauthorized disclosure of private and/or confidential medical information and to prevent 

abuse of any information by the subpoenaed entities. 

¶ 13 Colleen served Diane’s counsel with a copy of the motion and a notice of motion, setting 

the matter for presentation on August 6, 2019, but Patricia was not served with a notice or a copy 

of the motion. Diane did not file a response to the motion. 

¶ 14 On August 6, 2019, the trial court, noting in its written order that Patricia’s counsel had 

approached but did not file an appearance, granted Colleen’s motion for a qualified HIPAA order, 

set October 11, 2019, as the discovery cutoff, and continued the case for status on October 15,
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2019. On August 8, 2019, the trial court entered the qualified HIPAA protective order, pursuant 

to Rule 201(c)(1), federal regulations, and the Mental Health and Developmental Disabilities 

Confidentiality Act (740 ILCS 110/1 et seq. (West 2018)). The order authorized the parties to 

receive, subpoena, and transmit Patricia’s protected health information in a manner reasonably 

connected with this case. The following day, Patricia retained counsel, Douglas Drenk. 

¶ 15 On August 20, 2019, Colleen served Diane with a notice of subpoenas, noting that 

subpoenas of Patricia’s healthcare providers were being served that day via certified mail. Notice 

was apparently not sent to Patricia. On August 21, 2019, Drenk filed on Patricia’s behalf a notice 

of limited scope appearance pursuant to Illinois Supreme Court Rule 13(c)(6) (eff. July 1, 2017) 

for the purpose of protecting the privacy of Patricia’s medical records. (Patricia’s son, Mark, 

signed the notice as agent for legal matters on Patricia’s behalf.)

¶ 16 Also on August 21, 2019, Patricia (through Drenk) moved to enjoin Colleen from seeking 

the issuance of any subpoenas relating to her medical records. Patricia asserted her physicianpatient privilege (735 ILCS 5/8-802 (West 2018)), which, she argued, applies to nonparties, and 

further maintained that the privilege was not preempted by HIPAA because she was a non-party 

to the litigation. Patricia sought an order “[d]ismissing” Colleen’s motion for a protective order 

over her medical records and an order that enjoined Colleen from issuing subpoenas for her 

medical records.

¶ 17 In response, Colleen asserted that the court had already ruled on the issue when (on August 

6, 2019) it granted Colleen’s motion for protective order and subsequently (on August 8, 2019)

entered the HIPAA order, authorizing the issuance of subpoenas. She noted that Patricia never 

pursued a motion to reconsider (or an appeal) and never moved to quash the subpoenas previously 

issued; thus, her argument was forfeited. She also asserted that arguments concerning Patricia’s 
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medical privacy were sufficiently covered by the court’s protective order. Colleen also argued 

that equity demanded that Patricia’s motion be denied, because she remained in contempt of court 

in separate guardianship proceedings (in Du Page County). She further argued that Patricia’s 

medical records were relevant, because her medical condition was an issue in this case. Finally, 

Colleen offered to withdraw the subpoenas if Patricia sat for a deposition. 

¶ 18 On October 10, 2019, the trial court held a hearing on several matters and entered an order 

that: (1) denied Patricia’s motion to enjoin Colleen from seeking issuance of subpoenas relating to 

her medical records3

; (2) granted Colleen’s motion to extend time for discovery, which was 

extended to December 6, 2019; and (3) took under advisement Colleen’s petition for rule to show 

cause against Patricia (for failure to comply with a subpoena for a deposition). The court continued 

the case to December 12, 2019, for status. In denying Patricia’s motion to enjoin Colleen from 

subpoenaeing her medical records, the court noted at the hearing, “We entered a protective order 

some time ago. I understand your arguments. Most of them, if not all of them, are that she’s a 

non-party. There’s a physician-patient privilege involved. But the issue in this case, the medical 

records may be relevant and we have a protective order. So I’m denying your motion.” The court 

also noted that the sole issue in the case is whether Diane exercised authority as an agent. Patricia 

appeals.4

3 Colleen served seven subpoenas via certified mail on August 20, 2019. Patricia filed her 

motion to enjoin the following day. As noted, the court did not rule on Patricia’s motion until 

October 10, 2019. 

4 On November 12, 2019, the trial court denied Patricia’s motion, filed November 4, 2019, 

for a stay pending appeal. On November 14, 2019, Patricia moved in this court for a stay pending 
2020 IL App (2d) 190926-U 

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¶ 19 II. ANALYSIS

¶ 20 We first review our jurisdiction over this appeal. Patricia filed this appeal pursuant to 

Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017) (interlocutory appeals as of right; appeal 

from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or 

modify an injunction”) within 30 days of the trial court’s order denying her motion to enjoin

Colleen from seeking the issuance of subpoenas relating to her medical records (and wherein she 

had requested dismissal of Colleen’s motion for a protective order over her medical records and 

an order that enjoined Colleen from issuing subpoenas for her medical records). The HIPAA 

protective order limits the use of Patricia’s protected health information to this litigation and 

requires the return or destruction of the records at the end of the litigation.

¶ 21 In her appellee’s brief, Colleen argues that the October 10, 2019, order denying Patricia’s 

motion is not an injunctive order, but a discovery order from which interlocutory appeal cannot be 

taken; thus, in her view, this court lacks jurisdiction to hear Patricia’s appeal. Colleen contends 

that, regardless of how Patricia labeled her motion, it substantively sought to quash subpoenas 

Colleen issued to Patricia’s medical providers. Orders regarding preliminary discovery, she notes, 

such as the denial of a motion to quash, are not final orders and, therefore, are not appealable. 

Kmoch v. Klein, 214 Ill. App. 3d 185, 191 (1991). Colleen argues that, notwithstanding Patricia’s 

attempt to couch the denial of her motion as injunctive in order to fall under Rule 307’s scope, it 

remains that discovery orders are not appealable under Rule 307. Id. at 192. 

¶ 22 In Kmoch, this court dismissed, for lack of jurisdiction, an appeal from two interlocutory 

orders denying the defendant’s motions to quash deposition subpoenas sought pursuant to a 

appeal. We granted the motion on December 3, 2019. 
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mental-health confidentiality statute. Id. at 192. The individuals whose depositions the plaintiff 

sought to take had treated the defendant in relation to another court proceeding. This court held 

that the orders were not final, but interlocutory, “made as preliminary discovery orders in a pending 

suit.” Id. at 191. They were not appealable, “because they are reviewable on appeal from the final 

order.” Id. The treaters could either obey or defy the order and, if it resulted in a contempt finding, 

such judgment would be a final and appealable order. Id. Turning to Rule 307, this court declined 

to follow In re Marriage of Lombaer, 200 Ill. App. 3d 712, 721 (1990), a case on which Patricia 

relies, which had held that the reviewing court had jurisdiction under Rule 307 to address an appeal 

from orders directing the discovery deposition of a medical provider pursuant to a mental-health 

confidentiality statute. The Lombaer court had characterized the orders as effectively enjoining a 

party and her physician from asserting their privilege. Id. at 192 (quoting Lombaer, 200 Ill. App. 

3d at 721). In Kmoch, this court instead followed supreme court precedent that, addressing the 

rules for interlocutory orders, determined that “ ‘[d]iscovery orders are not made appealable under 

the provisions of these rules.’ ” Id. (quoting People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171 

(1981)). We also found support for our conclusion in the practice notes to Rule 307, which 

provided that, even though they have injunctive qualities, discovery orders are not reviewable 

under the rule. Id. at 192-93 (quoting Ill. Ann. Stat., ch. 110A, par. 307, Historical & Practice 

Notes, at 263 (Smith-Hurd 1985)). 

¶ 23 In her reply brief, Patricia maintains that this court has jurisdiction to review the denial of 

injunctive relief to prohibit disclosure of her medical records protected under the physician-patient 

privilege. She argues that Kmoch is distinguishable because it involved a party defendant’s appeal 

under a mental-health confidentiality statute and that she, in contrast, is a non-party. She also 

argues that we should decline to follow Kmoch, where it does not state that a non-party is 
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prohibited from seeking interlocutory appeal from the denial of injunctive relief to prevent 

unauthorized disclosure of the non-party’s private medical records protected from disclosure by 

the non-party’s invocation of the statutory physician-patient privilege. Patricia also contends that 

she cannot refuse to comply with or defy the discovery order granting Colleen’s motion for a 

protective order (or the resulting HIPAA order) in order to be held in contempt as a means of 

seeking immediate appellate review prior to a final judgment after trial. She also asserts that she 

herself cannot defy the subpoenas issued to her healthcare providers. Her privilege, she notes, 

cannot be restored on review from a final judgment after trial.

¶ 24 We agree with Colleen that we lack jurisdiction over this appeal. In Almgren v. RushPresbyterian-St. Luke’s Medical Center, 162 Ill. 2d 205 (1994), the supreme court reaffirmed the 

holding in Silverstein that pretrial discovery orders are not appealable under the Illinois Supreme 

Court Rules governing interlocutory appeals. Id. at 211. “Although such orders may have the 

qualities of an injunction in the sense that they compel the parties to do or not do a particular thing, 

they are considered noninjunctive ‘because they [do] not form part of the power traditionally 

reserved to courts of equity, but, instead, [are] part of the inherent power possessed by any court 

to compel witnesses to appear before it and give testimony.’ ” Id. (quoting In re A Minor, 127 Ill. 

2d 247, 262 (1989)). Discovery orders “are subject to review, but they are not immediately 

appealable because they are reviewable on appeal from the final judgment.” Id. Almgren was a 

medical malpractice case brought against a hospital, and the hospital’s counsel sought to conduct 

an ex parte interview with one of the plaintiff’s treating physicians. The supreme court rejected 

the appellate court’s reasoning that the trial court’s order had the effect of enjoining the plaintiff 

from asserting her patient-therapist privilege under a mental-health confidentiality statute. Id. at 

210-11. Specifically, it rejected the court’s attempt to ignore Silverstein on the basis that, once the 
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interviews were conducted and confidential information about the plaintiff was disclosed, any 

post-judgment appeal would be meaningless. Id. at 211. According to the supreme court, the 

plaintiff’s right to complete confidentiality was lost when she filed her suit. Id. Also, the supreme 

court noted that Silverstein also involved a privilege (a newspaper reporter’s assertion of the 

reporter’s privilege statute). Id. at 212. The court agreed with this court’s conclusion in Kmoch

that the same result as in Silverstein applied in the case before it, which involved a mental-health

confidentiality statute. Id.

¶ 25 Although Silverstein involved motions to quash a discovery deposition subpoena and a 

document-production request, it is relevant here for two reasons. First, it involved a non-party, 

which is the same as this appeal. Second, Patricia’s motion to enjoin Colleen from seeking the 

issuance of subpoenas relating to her medical records is, in essence, a motion to quash subpoenas 

of documents, the same scenario as in Silverstein, and, we believe, warranting the same result in 

this case. 

¶ 26 Furthermore, we believe that Patricia is not so removed from this litigation as to accurately 

be characterized as a non-party. Colleen brought her suit under the Act so that the trial court could 

assess Diane’s execution of her agency over Patricia. 755 ILCS 45/2-10(a) (West 2018) (allowing 

an interested person, including a descendant, to petition for a finding that the principal lacks 

capacity to control or revoke the agency, and allows the trial court to construe a power of attorney 

and review the agent’s conduct). But the statute further requires the trial court to first determine 

“that the principal lacks either the capacity to control or the capacity to revoke the agency.” Id. 

Thus, the litigation concerns not only Diane, but also Patricia (more specifically, Patricia’s 

capacity as to the agency). Patricia’s argument that her status as a non-party should render 

appealable the court’s interlocutory discovery order fails. The trial court’s denial of Patricia’s 
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motion was a pretrial order concerning discovery, which the case law holds is not appealable under 

the rules governing interlocutory appeals. 

¶ 27 We also reject Patricia’s argument that she herself cannot disobey the subpoenas, which 

were issued to her healthcare providers, so as to trigger a contempt finding, which, in turn, would 

be appealable. Patricia’s inability to seek immediate appeal from a contempt finding is not a reason 

to ignore supreme court precedent. 

¶ 28 In summary, we lack jurisdiction over this appeal. 

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we dismiss this appeal for lack of jurisdiction. 

¶ 31 Appeal dismissed.