Trial News

The prior mental health records of a girl alleging that medical negligence caused a traumatic brain injury are protected from disclosure by a state law confidentiality privilege, an Illinois appellate court has ruled. Although part of the evidence in the case involved a change in the girl’s personality and emotional behavior after the injury, that is not sufficient to overcome the privilege: A neurological injury is not synonymous with a psychological one, and the claim for damages stemmed from a physical injury rather than an emotional one. (Sparger v. Yamini, 2019 WL 5543632 (Ill. Ct. App. Oct. 28, 2019).)

Jeff Sparger sued physician Bakhtar Yamini and the University of Chicago Medical Center after his daughter, Kiersten, contracted meningitis following spinal cord surgery. The plaintiff alleged that the doctor’s failure to properly and timely repair a spinal fluid leak after surgery led to Kiersten contracting meningitis, which resulted in brain damage. A neuropsychologist who examined Kiersten post-surgery concluded that she was exhibiting signs of a traumatic brain injury that affected her cognitive abilities and led to personality changes. The neuropsychologist noted that Kiersten had become emotionally volatile, that she had lost friends because of her outbursts and anger, and that her attention span and ability to concentrate, among other cognitive abilities, decreased after her injury.

During discovery, the defendants requested Kiersten’s pre-surgery mental health records, which the plaintiff refused to disclose as privileged under Illinois’s Mental Health and Developmental Disabilities Confidentiality Act. The defendants moved to compel production, arguing that Kiersten’s mental health history was relevant because her emotional state was at issue in the case. After an in camera inspection of the records, the trial court granted the motion and proceeded to read portions of Kiersten’s records in open court. It concluded that Kiersten had exhibited “emotional symptomology” before her injury and that the records were relevant to determining whether this affected her post-surgery condition. The plaintiff refused to disclose the records, and the trial court held plaintiff counsel in “friendly contempt,” which allowed counsel to appeal the contempt order and have the appellate court review the discovery order as part of that appeal.

The appellate court overturned the ruling and vacated the contempt order, concluding that the records were not relevant simply because the plaintiff alleged that Kiersten suffered a neurological injury. The court also held that the records were not probative and were unduly prejudicial to the plaintiff because they did not reflect Kiersten’s mental health status or her behavior at the time she was allegedly injured.

Section 10(a) of Illinois’s mental health act enumerates exceptions to the confidentiality provision, including that a person’s records may be disclosed in a civil proceeding “in which the [plaintiff] introduces his mental condition or any aspect of his services received for such condition as an element of his claim.” The exception requires the court to perform an in camera review of the records to determine whether the evidence is relevant, probative, and not unduly prejudicial; that the same information cannot be obtained from other admissible evidence; and that its disclosure serves the interests of substantial justice over the potential harm to the plaintiff.

Drawing the Illinois Supreme Court’s ruling in Reda v. Advocate Health Care (199 Ill. 2d 47 (2002)), the court explained that claiming damages for a neurological injury does not in and of itself place a plaintiff’s mental health at issue. Finding otherwise would make the confidentiality privilege pointless because any case involving a physical injury to the brain would automatically remove the privilege and allow disclosure. The appellate court reasoned that Kiersten’s situation fell within Reda ’s bounds—her claim involved a traumatic brain injury, she was not claiming emotional damages, and a neurological injury is not synonymous with a psychological one.

The court also distinguished Kiersten’s situation from a car crash case where a woman’s pre-injury medical records were released because she included psychological and emotional injuries in her claim for damages, including being treated for psychological harm after the crash. Kiersten’s claims are limited to the physical injuries she suffered. She did not seek treatment from the neuropsychologist after her injury for emotional or psychological issues but for a neurological injury, the court said.

Chicago attorney Timothy McArdle, who represents the plaintiff, explained that “the strong protections [for confidentiality] are evinced by the language of the act and how our courts have interpreted the act, which protects mental health records from disclosure, subject only to thinly tailored and specifically enumerated exceptions. Recipients of mental health services must place their mental health at issue, or disclosure is not permitted. The Illinois Supreme Court has consistently held that the relevance of mental health is not an issue you arrive at unless and until a plaintiff has affirmatively made a claim of mental health as part of the damages.”