IL Supreme Court: 'Hearsay' Facebook post not enough to force car crash defendant to reveal medical history

By D.M. Herra | Dec 17, 2018

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The Illinois State Supreme Court ruled that a plaintiff in a personal injury lawsuit arising from a traffic crash is not entitled to the defendant’s medical records when the defendant’s health is not part of the allegations.

Attorney Karl Bayer had been held in contempt of court for refusing to respond to two interrogatories seeking detailed medical records about his client, the defendant in a personal injury lawsuit. The lawsuit was filed by a pedestrian who was struck by the vehicle Bayer’s client was driving as she crossed the street in downstate Lacon in Marshall County, about 30 miles north of Peoria.

The personal injury complaint charged the man with negligence, alleging he either failed to keep a proper lookout, failed to stop at a stop intersection, failed to yield the right-of-way to a pedestrian, or some combination of the three. The defendant denied the allegations and filed an affirmative defense.

The plaintiff served three interrogatories, asking the defendant if he required medical clearance to legally drive. The plaintiff further requested five years of eye exam records and 10 years of general health records. Bayer responded to the first interrogatory, saying his client was a diabetic and providing information on the doctor who cleared him to drive. He refused to answer the other two, saying the questions violated the federal Health Insurance Portability and Accountability Act (HIPAA).

The plaintiff argued the defendant’s vision was at issue because he had struck a pedestrian in broad daylight and because a person who knew the defendant had posted on Facebook that he was legally blind and had been involved in previous unreported traffic collisions. The plaintiff’s attorneys believed the defendant was “shopping around” for an eye doctor who would clear him to drive. The circuit court granted the plaintiff’s motion and held Bayer in contempt when he continued to refuse to comply with the two interrogatories.

Bayer appealed. The Illinois Third District Appellate Court reversed the circuit court’s decision and said the plaintiff’s counsel was not entitled to any of the defendant’s medical records.

The Supreme Court analysis turned on a single phrase – “at issue.” It is that phrase in the law that determines whether a defendant’s medical history is privileged – if the defendant’s health or medical condition are “at issue” in a case, then his or her medical records can be part of the court record. The plaintiff argued that the defendant’s ability to see was at issue; the defendant maintained his medical records were confidential unless he made his health or medical condition a part of his defense.

Justice Robert R. Thomas authored the Supreme Court’s unanimous opinion in  case.

Thomas said it is unclear whether lawmakers intended a plaintiff to be able to waive a defendant’s privilege for him, and noted that case law has been inconsistent in the law’s application. The justices went further, however, saying they believe the question is irrelevant.

“We need not resolve whether a plaintiff may put a defendant’s medical condition at issue so as to waive a defendant’s privilege … because, on the record before us, plaintiff has not put defendant’s medical condition at issue,” Thomas wrote.

The justices examined both the plain and legal meaning of the word “issue” and found it is defined as “a single, certain and material point arising out of the allegations and contentions of the parties.” Noting that the lawsuit was a routine negligence complaint, the justices said neither the plaintiff nor defendant asserted anything about the defendant’s health in their allegations and counter-allegations.

“It is important to remember how the information about defendant’s alleged vision problem came to light,” Thomas wrote. “However something may become ‘an issue’ in a case it is clearly not through an oral representation about a hearsay statement someone posted on Facebook.”

The justices ruled the plaintiff’s counsel was entitled to the information about the defendant’s clearance to drive, but not to the information requested in the remaining interrogatories. The Supreme Court affirmed the appellate court’s decision to vacate the finding of contempt.

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