First District Illinois Appellate Court rules that nursing home records of alleged assailant in resident-on-resident abuse case are privileged from production by the Illinois Mental Health and Developmental Disabilities Confidentiality Act

First District Illinois Appellate Court rules that nursing home records of alleged assailant in resident-on-resident abuse case are privileged from production by the Illinois Mental Health and Developmental Disabilities Confidentiality Act

In Stuckey v. The Renaissance at Midway, the defendants appealed the circuit court’s ruling requiring defendants to produce certain partially-redacted records regarding a nonparty nursing home resident who assaulted the plaintiff, and holding defense counsel in “friendly contempt” for refusing to produce those records. On December 18, 2015, the First District Appellate Court issued an opinion reversing both the discovery and contempt orders.

The complaint was filed by the sister and attorney-in-fact for Robert Holman. According to the complaint, Mr. Holman, a resident at the Renaissance at Midway (Renaissance), was physically assaulted by another resident, causing injuries. An IDPH complaint investigation report indicated that, prior to the incident at issue, the alleged perpetrator (referred to as “John Doe,”) who was suffering from Alzheimer’s disease, became physically aggressive toward staff and pushed staff on a bed. In light of the IDPH findings, Plaintiff propounded written discovery requests on defendants seeking, among other things, information about whether there were other prior incidents of aggression between John Doe and any other Renaissance residents or employees.

Renaissance objected to production of any records relating to John Doe, asserting they were protected by HIPAA, the patient-physician privilege, and the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act). Specifically with regard to the Confidentiality Act, Renaissance contended that John Doe was admitted there for “mental illness” and was being treated for “mental healthcare services” (as defined by the Confidentiality Act). Plaintiff did not dispute that John Doe was a “recipient” of “mental health or developmental disabilities services” while a resident at Renaissance.

After an in camera inspection, the circuit court concluded that the majority of John Doe’s records were medical records and therefore protected by the Confidentiality Act; but also ruled that a small portion of the records were discoverable in a partially redacted form that excluded personal, identifiable information. The circuit court explained, “[W]hat we left unredacted, principally from the nurse’s notes, are any account of any physical acting out by John Doe. We think that is nonmedical information but simply an account of what he did, and we believe the Plaintiff is entitled to receive that.”

The First District Appellate Court disagreed, concluding that the disputed records concerned John Doe and the services he was being provided while a resident at Renaissance, and therefore constituted “records” or “communications” which fell within the broad protection offered by the Confidentiality Act.

The Appellate Court further held that it is the plaintiff who has the burden of proving some exception to the Confidentiality Act applies. In so ruling, the Appellate Court relied upon the Illinois Supreme Court’s discussion of the Confidentiality Act in Reda v. Advocate Health Care, 199 Ill.2d 46, 60 (2002): “When viewed as a whole, the Act constitutes a strong statement by the General Assembly about the importance of keeping mental health records confidential. Exceptions to the Act are narrowly crafted. Consequently, anyone seeking the nonconsensual release of mental health information faces a formidable challenge and must show the disclosure is authorized by the Act.” In the instant case, the Court noted, the plaintiff never asserted the applicability of any statutory exception to the Confidentiality Act, instead focusing on her incorrect argument that the Confidentiality Act was inapplicable to the requested nursing home records. In the absence of any showing by the plaintiff at the trial court level that any exception applied, the Appellate Court concluded that the trial court’s discovery rules were improper.

As an aside, it should be noted, in August 2015, the Appellate Court filed an opinion in this case under Supreme Court Rule 23 (prohibiting parties from citing the opinion as precedent) in which the Court arrived at a slightly different conclusion. In the August 2015 opinion, the Appellate Court noted that John Doe died before the circuit court entered its orders requiring disclosure and holding defense counsel in friendly contempt. Although the plaintiff did not argue it at the trial court level, he asserted on appeal that John Doe’s records fell within an exception to the Confidentiality Act which allows a court to authorize disclosure after an in camera inspection and for good cause shown after the death of a recipient of mental health services. The Appellate Court therefore agreed that the records were discoverable. On the other hand, in its December 18, 2015, opinion, which was not filed under Rule 23, the Appellate Court declined to allow production of any part of John Doe’s records, notwithstanding his death, where the plaintiff failed to raise any possible exception to the Confidentiality Act at the circuit court level.

Takeaways:

1. The Stuckey decision can be cited for the proposition that nursing notes contained in a nursing home chart are considered “records” or “communications” under the Confidentiality Act;
2. long term care providers may cite the Stuckey decision in support of arguments that other parts of the nursing home chart likewise should be considered “records” or “communications” protected under the Confidentiality Act;
3. the party seeking production of records alleged to be protected by the Confidentiality Act has the burden of proving that the records fall within one of the exceptions to the Act; and
4. allegations of resident-on-resident abuse in a civil action may constitute “good cause” to allow for limited disclosure of a deceased person’s mental health records otherwise protected by the Confidentiality Act.

To obtain a copy of Stuckey v. The Renaissance at Midway, et al., 2015 IL App (1st) 143111 (December 18, 2015), you may contact Anne Nelson by telephone (312-673-7810) or email (anne.nelson@arandpartners.com).