Background Facts
The defendant law firm represented Doe in a medical malpractice action against a hospital and other medical staff. During that litigation, the evidence established that, after Doe was admitted to the emergency room of the hospital, he attempted suicide by stabbing himself multiple times. In the medical malpractice litigation, the hospital sought a qualified protective order under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d (2012); 45 C.F.R. §§ 160.103, 164.501 (2016)) to gain access to Doe’s protected health information. The hospital also requested a subpoena pursuant to HIPAA. During the trial, Doe testified in detail about his suicide attempt, his injuries therefrom, and his diagnosis. At the conclusion of the jury trial in the medical malpractice action, Doe was awarded $4.2 million. Subsequently, in May 2015, the defendants issued a press release related to the medical malpractice trial describing Doe’s suicide attempt, the resulting injuries, and his diagnoses. Additionally, the defendant law firm commented on the medical malpractice case and Doe’s history for an article published in the Chicago Daily Law Bulletin (Law Bulletin).
On May 5, 2017, Doe filed a multicount complaint against the defendants alleging that the defendants violated the Act by wrongfully disclosing confidential information about his diagnoses as well as his mental health. According to the complaint, at the time the defendant law firm disclosed confidential information about Doe (which was contained in the Law Bulletin article and other publications), the defendant lawyer did not have his informed consent. Doe alleged that the defendants’ wrongful disclosure of his confidential health information proximately caused the damages he sustained and, therefore, the defendants were liable.
The Supreme Court of the State of Illinois (“Illinois Supreme Court”) stated in its November 30, 2023 Opinion: “it is undisputed that Doe voluntarily testified in detail regarding his mental health information during the medical malpractice trial. Specifically, Doe testified about his history of depression and anxiety, his initial suicide attempt that resulted in his hospitalization, the suicide attempt that occurred during his hospitalization, his continued hospitalization and care at numerous institutions after his suicide attempts, his diagnosis and treatment for a brain injury following his suicide attempts, his ongoing cognitive difficulties that prevented his return to practicing law, and the medications he was taking to treat his mental health conditions. The information was shared during a public proceeding, and there is no indication in the record that an effort was made to seal the record from public view or access. Therefore, Doe’s public disclosure of his mental health information “took away its confidentiality,” and it cannot regain its confidentiality after disclosure.”
“Moreover, there is nothing in the HIPAA privacy rule that prevents legal counsel from discussing facts that were voluntarily revealed in a public trial. In fact, the public nature of the proceeding not only removes the confidentiality of the voluntarily disclosed mental health information (Novak, 106 Ill. 2d at 485), but it also exempts from punishment anyone who speaks about the publicly released information.”
The Illinois Supreme Court held: “Accordingly, we find that Doe waived confidentiality under the Act when he voluntarily and publicly testified to specific details regarding his mental health information, and we find that the qualified protective order did not shield him from waiver of that confidentiality.”
Furthermore, “Based on the plain language of the Act, a prerequisite to the protections afforded therein, a connection with providing “mental health or developmental disabilities services,” is necessary. In the case on review, Doe’s testimony during the public medical malpractice trial, the records and evidence connected to the trial, and Doe’s communications with the defendants are confidential communications and records that were made and kept in connection with the medical malpractice litigation, not in connection with providing mental health services to Doe.”
The Illinois Supreme Court summarized its conclusions: “We find that Doe waived his claims of confidentiality under the Act by voluntarily and publicly disclosing his private health information in a public trial, and the qualified protective order under HIPAA did not preclude such waiver. Novak, 106 Ill. 2d at 485. We also find that the defendants are not liable under the Act, as the evidence and testimony divulged during Doe’s medical malpractice trial were not records or communications made in the course of mental health services; therefore, the Act does not apply to the defendants’ posttrial discussion of said evidence, records, or communications. Next, we find that the amendment to section 3(a) of the Act does not apply retroactively. Lastly, we hold that the appellate court erred when it reversed the circuit court’s dismissal of Doe’s complaint pursuant to section 2-615 of the Code. Therefore, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.”
Source Doe v. Burke Wise Morrissey & Kaveny, LLC, 2023 IL 129097.
If you or a loved one may have been injured (or worse) as a result of mental health malpractice in Illinois or in another U.S. state, you should promptly find an Illinois medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your mental health malpractice claim for you and represent you or your loved one in a mental health medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.