Illinois Court of Appeals Draws Careful Distinctions for Access to Mental Health Records

ABSTRACT: The Illinois Court of Appeals recently weighed in on the distinction between neurological injury and psychological damage as applied to the Illinois Mental Health and Developmental Disabilities Confidentiality Act in Sparger v. Yamini.

In Sparger v. Yamini, plaintiff, on behalf of his minor-daughter, filed a medical malpractice lawsuit against a Chicago-area hospital and a neurosurgeon (collectively “defendants”). Plaintiff alleged that the surgeon’s negligence in repairing the minor-plaintiff’s spinal fluid leak caused her to subsequently develop meningitis. Plaintiff’s Complaint included a claim for compensation for brain damage suffered by minor-plaintiff, including a detrimental effect on the minor plaintiff’s “cognitive, emotion[al], and behavioral presentation.”

Defendants sought minor-plaintiff’s medical records from two hospitals predating the medical care at issue. Plaintiff’s counsel declined to produce the records, asserting that they were privileged and non-discoverable under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (“MHA”) as containing information pertaining to the minor-plaintiff’s mental health treatment. In lieu of production, plaintiff’s counsel provided a limited and redacted version of one of the records sought, while declining entirely to produce the records pertaining to a different hospitalization.

Defendants argued that the minor-plaintiff placed her mental health at issue by claiming the alleged injury affected her cognitive, emotional, and behavioral presentation and that the records sought were relevant to her presentation before the alleged injury, thereby falling into a narrow exception to the MHA regarding mental condition. The circuit court granted defendants’ Motion to Compel ordered plaintiff’s counsel to produce the entirety of the records withheld.

Plaintiff’s counsel refused to produce the records and was placed in “friendly” contempt of court for violation of the discovery order. Plaintiff’s counsel appealed the finding of contempt (a finding of which is final and appealable under Illinois case law (see Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002)). On appeal, plaintiff’s counsel argued that because plaintiff was not seeking compensation for any emotional injuries to minor-plaintiff, her mental health had not been placed at issue.

On review, the Illinois Appellate Court for the First District reversed the trial court’s ruling and stated that plaintiff had not placed minor-plaintiff’s mental condition at issue by claiming brain damage and cited the prior decision of the Illinois Supreme Court in Reda v. Advocate Health Care, 199 Ill. 2d 47, 50 (2002). 

In Reda, plaintiff alleged medical negligence in diagnosis and treatment of an acute thrombosis in his right leg which allegedly resulted in a subsequent stroke. Id. at 50-51. Plaintiff’s treating healthcare providers refused to provide records, citing their protection under MHA. Id. at 51. The trial court ordered production of the records, and the Appellate Court affirmed. The Supreme Court reversed both lower courts, stating “neurological injury is not synonymous with psychological damage…[n]or does neurological injury directly implicate psychological damage.” Id. at 58.

The Appellate Court further distinguished a case from the Appellate Court for the Third District, Phifer v. Gingher, 2017 IL App (3d) 160170.  In Phifer, plaintiffsought damages for “psychiatric, psychological, and/or emotional injuries” resulting from an automobile collision.  Defendant requested medical records prior to the collision, plaintiff refused, and the trial court granted defendant’s Motion to Compel. Id. at 13-19.  The Phifer Court, distinguishing Reda, held that plaintiff placed her mental condition at issue by alleging that she was caused “great pain and anguish both in mind and body.” Id. at 28.

The Appellate Court distinguished the facts of the current case from Phifer because plaintiff specifically stipulated that he was “not seek[ing] damages based on psychiatric, psychological and emotional damages and did not allege [minor-plaintiff] suffered pain and anguish in mind and body, nor [that he claimed] psychiatric or psychological injuries.”

The Appellate Court also rejected defendants’ argument that fundamental fairness required disclosure of the records and distinguished another case cited by defendants, D.C v. S.A., 178 Ill. 2d 551 (1997). In D.C v. S.A., the Illinois Supreme Court held that an exception to the MHA privilege may exist in certain circumstances where the medical records sought have the potential to absolve defendant of all liability and fully negate plaintiff’s claim. Id. at 570. Such an exception included those records establishing that the plaintiff suffered an injury as a result of an attempted suicide, and not an unrelated negligent act, as the plaintiff had initially contended. In distinguishing the present case, the Appellate Court found that the records sought here did not pertain to the absolution of defendants’ liability, but rather to minor-plaintiff’s damages.

The Sparger opinion is notable not only in its ruling regarding the narrow exceptions prescribed by the MHA, but also in the fact that none of the courts and their respective opinions referenced herein attempted to define what specific claims constitute a “neurological injury” versus a “psychological injury.” Instead, the Appellate Court in the instant case held that because the plaintiff’s neuropsychology expert concluded that minor-plaintiff experienced a traumatic brain injury as a result of the alleged negligence, the claims were neurological rather than psychological. 

Defense counsel should expect plaintiffs’ attorneys to continue pursuing the argument that plaintiffs’ alleged injuries are neurological as opposed to psychological, even in light of alleged emotional and behavioral effects, in an effort to conform their cases to this decision and attempt to prevent access to relevant mental health records.

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