Panel OKs judge's order requiring man to undergo exam in case alleging he gave STD to date

A Cook County judge did not abuse his discretion when he ordered a physical examination and blood test for a Chicago doctor accused of giving a sexually transmitted disease to a woman he met through a matchmaking service in 2011, an Illinois appeals panel ruled this week.

In its Feb. 25 ruling, the First District Appellate Court upheld Cook County Circuit Judge Jeffrey Lawrence's decision to grant the woman's request to make Norman Weinzweig undergo an exam under Supreme Court Rule 215, but vacated the pair of contempt orders he issued in the case.

Justice Laura C. Liu wrote the panel's 17-page opinion, with Justices P. Scott Neville and Daniel J. Pierce concurring.

The ruling comes in a case a woman using the Jane Doe pseudonym brought in June 2012 against Weinzweig and IJL Will Do, doing business as It's Just Lunch, a matchmaking service that arranged a dinner date for the two.

The plaintiff and Weinzweig went on another date on July 3, 2011, when she claims they had sex after both affirmed neither had any sexually transmitted diseases (STDs). Shortly after that encounter, the woman alleges she began experiencing symptoms of the Herpes II virus, which she asserts she did not have before she met Weinzweig.

Saying she wouldn't have had sex with the defendant had he not confirmed he was disease free, the plaintiff sued for battery, intentional inflection of emotional distress, negligence, fraud/concealment and intentional misrepresentation.

Weinzweig filed a motion to dismiss, to which he attached medical records with a lab report and signed declaration. His lab report, according to the panel's opinion, showed a negative test result for herpes and his declaration attested that based on the lab results and his knowledge as a doctor, he believed he was not infected with herpes on July 3, 2011.

After the woman filed an amended complaint, the trial court continued Weinzweig's dismissal request to allow for discovery. In his answer to her suit, he denied he had or exposed her to a STD.

During discovery, the woman requested the defendant admit any STD testing he had before their 2011 date and produce medical records about any STDs he may have had from 2007 to the present. He objected, questioning the request's relevance and asserting physician-patient privilege.

After Lawrence, the trial judge, sustained Weinzweig's objection on the basis of physician-patient privilege, the plaintiff filed a motion under Supreme Court Rule 215 that asked the court to order the defendant to undergo an exam and take a blood test.

Rule 215 allows courts to order a party to submit to a physical or mental exam in an action when that party's physical or mental condition is in controversy and such an exam will aid the court in determining the case.

Saying his denial of her allegations didn't put his physical condition in controversy, Weinzweig argued that the woman failed to show good cause to justify an order making him undergo testing. He claimed her Rule 215 motion was an attempt to get around physician-patient privilege and would violate his constitutional right to privacy.

In September 2013, the trial court granted the woman's Rule 215 request and ordered the parties to schedule an exam for the defendant. The parties failed to do so, spurring Weinzweig to seek the certification of questions on the motion and the plaintiff to file to a motion to compel him to submit to the exam.

The judge denied Weinzweig's motion and granted the woman's on Oct. 29, 2013. After defense counsel suggested a friendly contempt order so Weinzweig could appeal the grant of the Rule 215 request, the trial court found him in indirect civil contempt, imposed a $1,000 sanction and ordered him to schedule the exam.

He appealed the next day. The plaintiff then sought sanctions against him for failing to comply with the Rule 215 order and the entry of a default judgment against him. Weinzweig objected, saying the judge lacked jurisdiction to consider her sanctions motion because his appeal over the contempt order was pending.

On Nov. 14, 2013, the trial court found the defendant in indirect civil contempt and again slapped him with $1,000 in sanctions, granting the plaintiff's request and awarding a default judgment. Weinzweig appealed the same day.

He claimed the trial judge abused his discretion in handing down the two civil contempt orders because the underlying Rule 215 order was improper since the rule was designed to give courts discretion to order plaintiffs in personal injury cases to submit to exams, not defendants like him.

He also argued that even if he submitted to a physical exam ordered under Rule 215, a blood test wouldn't be able to establish if he had a STD at the time of the parties' 2011 encounter at the crux of the case.

The plaintiff, however, asserted that the Rule 215 order was proper because Weinzweig made his physical condition an issue when he voluntarily submitted a lab report and declaration saying he was not infected with herpes at the time of their encounter.

Because he offered testimony and records that conflicted with the plaintiff's allegation he gave her a STD, Liu wrote for the panel that Weinzweig placed his physical condition "squarely" at issue and as such, the trial judge had discretion under the rule to order tests to help him reach a determination in the case.

In regards to his argument that an exam and testing wouldn't be able to show if he was infected in 2011 or if he was the sources of the plaintiff's herpes, the panel said Weinzweig didn't raise the argument at the trial court level and thus, forfeited the argument.

"This does not mean, however, that defendant cannot raise this argument at a later date when the results of his physical examination are known," Liu noted.

The appellate justices also rejected Weinzweig's argument that the woman sought an exam under Rule 215 as a way to get around the patient-physician privilege.

Saying the First District has "repeatedly held that the physician-patient privilege does not apply to Rule 215 examinations," Liu explained the privilege does not attach in cases "[w]here the relationship between an examining physician and a party in a lawsuit is created by litigation."

The panel, however, agreed with Weinzweig when it came to his arguments over the trial court's contempt orders, including his contention he refused to comply with the Rule 215 order so he could get an interpretation of the rule via interlocutory appeal.

Although the trial judge did not say his Oct. 29 order was based on friendly contempt, the justices said the lack of that specific language doesn't change the fact the judge acknowledged that is what defense counsel asked for and noted on at least three occasions the contempt order would let Weinzbeig appeal the Rule 215 order.

"Thus," Liu wrote for the panel, "we find that defendant's noncompliance was based on 'a good-faith effort to secure an interpretation of an issue without direct precedent.' We therefore vacate the October 29 contempt order."

The panel also vacated the trial judge's Nov. 14 order and remanded for him to vacate all orders entered after that, including the default judgment, saying "the circuit court lost jurisdiction over the Rule 215 issue when defendant filed his notice of appeal."