People v. Florendo

JUSTICE MORAN delivered the opinion of the court: On July 10, 1979, the circuit court of Cook County found defendant, Dr. Regalado Florendo, in contempt of court for failure to comply with a subpoena, duces tecum issued by the March 1979 grand jury. The court ordered defendant incarcerated until he purged himself of contempt and then stayed the order pending appeal. The appellate court affirmed (95 Ill. App. 3d 601), and we granted the defendant leave to appeal. The primary issue for review is whether disclosure of a patient’s identity, pursuant to a grand jury subpoena, violates the physician-patient privilege. On February 21, 1979, the grand jury issued a subpoena requesting that defendant, as president of the Michigan Avenue Medical Center (Medical Center), produce medical, billing and receipt records for 34 listed “case numbers” and 13 named individuals. The information sought concerned public-aid-recipient patients of defendant’s clinic. Pursuant to defendant’s motion to quash, the trial court limited the scope of the subpoena. The court required only that defendant turn over to the grand jury photocopies of the patients’ identification cards, thereby disclosing their names. Defendant failed to do so, and the State petitioned for a rule to show cause why he should not be held in contempt. Defendant filed a motion to strike the State’s petition, and a hearing was held thereon. Subsequently, the trial court denied defendant’s motion and issued the following “impounding” order: “[T]hat transcripts of all testimony given in respect to [the subpoena] be impounded by this Court until further order. It is further ordered that all documents subpoenaed by the [grand jury] and the contents thereof not be released or revealed to anyone other than the Grand Jury. It is further ordered that all witnesses disclosed by virtue of testimony before or delivery of documents to the Grand Jury are not to be inquired of other than before the Grand Jury unless there is a specific and full waiver of the physician-patient privilege by the witness.” In affirming the trial court’s ruling, the appellate court concluded that “the public’s interest in maintaining the power of the grand jury” outweighed the patients’ interest in avoiding revelation of their identities. (95 Ill. App. 3d 601, 605.) The court rejected defendant’s arguments that disclosure of the women’s names violated section 5.1 of “An Act in regard to evidence and depositions” (Act) (Ill. Rev. Stat. 1979, ch. 51, par. 5.1) and the Illinois Abortion Law of 1975 (Ill. Rev. Stat. 1979, ch. 38, par. 81 — 21 et seq). Section 5.1 of the Act, commonly referred to as the physician-patient privilege, provides: “No physician or surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 51, par. 5.1.) The statute then lists a number of exceptions to the privilege, none of which are applicable here. The plain meaning of section 5.1 of the Act limits privileged information to that which is necessary to enable the physician to render professional services. Defendant concedes that a patient’s identity is not required for treatment. He also agrees that the mere identification of a patient is not typically considered a privileged communication. However, he argues that, here, disclosure of the patients’ names would inevitably associate them with the treatment received. It is asserted that the Medical Center renders only abortion-related services. Therefore, disclosing the women’s identities necessarily reveals the privileged information that they received abortions. We recognize this possibility and must therefore determine whether, under the circumstances in this case, the privilege should be construed to extend to a patient’s identity. As noted by the appellate court, resolution of this issue depends upon a balancing of competing interests. On the one hand the patient has an interest, recognized by the legislature, “in maintaining confidentiality in his or her medical dealings with a physician.” (People v. Bickham (1982), 89 Ill. 2d 1, 6.) However, the public also has an interest in maintaining the breadth of the grand jury’s power to conduct investigations necessary to ferret out criminal activity. (People v. Bickham (1982), 89 Ill. 2d 1, 5-6; People v. Dorr (1970), 47 Ill. 2d 458, 462, cert. denied (1971), 402 U.S. 929, 28 L. Ed. 2d 863, 91 S. Ct. 1527. See United States v. Calandra (1974), 414 U.S. 338, 344, 38 L. Ed. 2d 561, 569, 94 S. Ct. 613, 618; Branzburg v. Hayes (1972), 408 U.S. 665, 700, 33 L. Ed. 2d 626, 650, 92 S. Ct. 2646, 2666.) This power should be accorded “the broadest scope possible” consistent with constitutional limitations. (People v. Dorr (1970), 47 Ill. 2d 458, 462.) We believe that, under the circumstances of this case, the balance should be struck in favor of the public. This holding does not, as defendant suggests, conflict with the recent decision in People v. Bickham (1982), 89 Ill. 2d 1. In Bickham, the grand jury issued two subpoenas requesting the production of medical records pertaining to 63 named patients of an abortion clinic. Subpoena No. 200 identified 62 patients, none of whom consented to disclosure of their records. Subpoena No. 208 sought the medical records of a deceased woman. The administratrix of her estate executed a waiver of the physician-patient privilege. The court held that, pursuant to this privilege, respondent was not compelled to comply with subpoena No. 200. However, the court required that the records sought pursuant to subpoena No. 208 be turned over to the grand jury, as there was a valid consent to their disclosure. (See Ill. Rev. Stat. 1979, ch. 51, par. 5.1(3).) In so concluding, this court stated: “We note that the grand jury has been supplied with the names of the 62 women whose records it is seeking. There has been no consent for disclosure of medical records by any of the 62 women, as there was by the personal representative of the estate of Sherry Emry. As the appellate court observed, if the State obtains expressed consent from these women, whose identities it knows, exception (3) to the physician-patient privilege would be applicable. Respondent then could be compelled to produce their medical records.” (Emphasis added.) People v. Bickham (1982), 89 Ill. 2d 1, 6. In contrast, the subpoena involved herein, as limited by the trial court, did not request the confidential medical records of the patients. These records, as indicated in Bickham, could only be obtained pursuant to the patient’s consent. (Unless, of course, another exception to the physician-patient privilege is applicable.) Further, as the court emphasized in Bickham, the State was aware of the women’s identities and yet failed to obtain consent for disclosure of the records. In the instant case, the patients’ names were unknown. Consequently, it was impossible for the State to even attempt to obtain waivers of the privilege. The tremendous burden this situation imposes upon the grand jury investigation is clear. Also evident is the enhanced opportunity for a physician to invoke the privilege in order to conceal his own misconduct. “[T]he privilege should not be used as a shield by the physician; rather, it is for the benefit of the patient.” People v. Bickham (1982), 89 Ill. 2d 1, 6. Defendant contends that other jurisdictions consider a patient’s identity privileged where disclosure thereof inevitably reveals the treatment received. (E.g., Rudnick v. Superior Court (1974), 11 Cal. 3d 924, 523 P.2d 643, 114 Cal. Rptr. 603 (en banc); Marcus v. Superior Court (1971), 18 Cal. App. 3d 22, 95 Cal. Rptr. 545; Osterman v. Ehrenworth (1969), 106 N.J. Super. 515, 256 A.2d 123.) We find these cases distinguishable. Both Marcus and Osterman involved discovery proceedings in a medical malpractice action. Further, in these cases, information concerning the identity of other patients of the doctor and the nature of their treatment was sought. The Rudnick court, in a footnote, did indicate that if “disclosure of the patient’s name inevitably in the context of such disclosure reveals the confidential information, namely the ailments, then such disclosure violates the privilege.” (11 Cal. 3d 924, 933-34 n.13, 523 P.2d 643, 651 n.13, 114 Cal. Rptr. 603, 611 n.13.) Again, at issue were discovery proceedings in connection with a civil trial. (See Annot., 74 A.L.R.Sd 1055 (1976).) The public’s interest in the investigation of criminal activities, previously related, is simply not present. Nor is the secrecy attendant to grand jury proceedings. For these reasons, we do not find relevant the cases cited by defendant. Defendant further argues that disclosure of the information sought would impermissibly infringe on the women’s constitutional right to privacy. We believe that any intrusion on their privacy is minimal. The only aspect of the subpoena, with which defendant must comply, is that which requested identification of the patients. As previously indicated, this information was subject to the court’s impounding order, which prohibited revelation of the subpoenaed documents to anyone other than the grand jury. All witnesses whose identity was disclosed could not “be inquired of other than before the Grand Jury unless there is a specific and full waiver of the physician-patient privilege by the witness.” In addition, the appellate court was informed, during oral argument, that the patients used funds of the Department of Public Aid to pay for their treatment. Consequently, their names must have already been revealed to that agency. Finally, defendant briefly asserts that sections 10 and 11 of the Illinois Abortion Law of 1975 (Ill. Rev. Stat. 1979, ch. 38, pars. 81 — 30, 81 — 31) prohibit disclosure of an abortion patient’s identity. Section 10 requires a report of each abortion performed to be made to the Department of Health. The report may not identify the patient by name. Section 11(c) provides: “Any hospital, licensed facility or physician who fails to submit a report to the Department *** and any person who fails to maintain the confidentiality of any records or reports required under this Act is guilty of a Class B misdemeanor.” Ill. Rev. Stat. 1979, ch. 38, par. 81 — 31(c). We agree with the appellate court that sections 10 and 11 relate to reports and records which are required to be filed with the Department of Health. There is no indication that these statutory provisions are intended to apply to other matters, so as to extend the physician-patient privilege. For the above-stated reasons, the judgment of the appellate court is affirmed. Judgment affirmed.