author: PRESIDING JUSTICE UNVERZAGT

text:
    LINNEA PRITCHARD et al., Plaintiffs-Appellees, v. SWEDISHAMERICAN HOSPITAL, Defendant-Appellant (Richard Runstrom et al., Defendants; Jeffry S. Spears, Contemnor-Appellant).
    Second District
    No. 2—88—0731
    Opinion filed November 29, 1989.

      Diane I. Jennings, Hugh C. Griffin, and Lisa A. Jensen, all of Lord, Bissell & Brook, of Chicago (Jeffry S. Spears, of counsel), for appellants.
    Herbert I. Greene, of Greene, Bowman, Flaherty & McCarty, of Rockford (William M. Flaherty, of counsel), for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Linnea Pritchard and Edward Pritchard, brought an action for medical malpractice in the circuit court of Winnebago County against defendants, SwedishAmerican Hospital (the hospital), Dr. Richard Runstrom, Dr. W. Donald Jones, Dr. Novella A. Schafer, and Dr. Adrienne Butler. During discovery, the hospital objected to certain interrogatories submitted to it by plaintiffs. The hospital maintained the interrogatories sought information protected from disclosure by one or more of the following statutes: the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 8—2101 et seq.) (Medical Studies Act), the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987, ch. 91½, par. 801 et seq.), and the physician-patient privilege (Ill. Rev. Stat. 1987, ch. 110, par. 8—802). Following a hearing on plaintiffs’ motion to compel answers to the interrogatories in question, the trial court entered a written order on June 30, 1988, compelling the hospital to answer. Jeffry Spears, counsel for the hospital, refused to answer the interrogatories. On July 7, 1988, the court held him in contempt and fined him $25. This appeal ensued.

On appeal, contemner Jeffry Spears and defendant Swedish-American Hospital set forth four contentions of error: (1) that the trial court erred in ordering the hospital to disclose information that was privileged and confidential under the Medical Studies Act; (2) that the trial court erred in ordering the hospital to disclose any mental evaluations of defendant Dr. Runstrom, as such information was privileged under the Mental Health and Developmental Disabilities Confidentiality Act; (3) that the trial court erred in ordering the hospital to disclose information concerning the medical treatment of Dr. Runstrom, as the physician-patient privilege prohibited the discovery of that information; and (4) that the trial court erred in ordering the hospital to answer the interrogatories in question, as they were overly broad and sought information irrelevant to the issues in the instant case.

In their medical malpractice complaint, plaintiffs made numerous allegations of negligence against the physician defendants regarding the care rendered during Linnea Pritchard’s June 17 to June 30, 1984, confinement as a patient in SwedishAmerican Hospital, including failure to order proper tests and treatment, failure to obtain proper consultations with specialists, inadequate monitoring of her condition, allowing her to develop hyponatremia and central pontine myelinolysis, and negligent administration of hypertonic saline solutions instead of normal saline to correct her hyponatremia. Plaintiffs made many of the same allegations against the hospital, under a respondeat superior theory, and further alleged that the hospital negligently rendered hospital services, failed to intervene in Linnea Pritchard’s care, and allowed Dr. Richard Runstrom to maintain hospital privileges.

Plaintiffs engaged in substantial written and deposition discovery directed to their various theories against the defendants, including the hospital. Thus far, plaintiffs have discovered, among other things: the hospital’s bylaws; the bylaws, rules and regulations of the hospital’s medical staff; information concerning the hospital’s licensure and accreditation; and the forms used in the reappointment of physicians to the hospital’s staff. Plaintiffs have deposed or noticed the depositions of each defendant physician; the hospital’s president; various members of the hospital’s executive committee and credentials committee; all 17 nurses who were involved in Linnea Pritchard’s care; and Dr. Kenneth Skaar, who plaintiffs advised the circuit court is Dr. Runstrom’s brother-in-law and a fellow member of the hospital medical staff and who “has extensive information as to the physical and mental condition of Dr. Runstrom and other facts which might have a bearing upon Dr. Runstrom’s competency to practice medicine.”

Part of the deposition discovery focused on the general procedures and criteria established by the hospital in granting and reviewing a physician’s privileges. Plaintiffs disclosed to defendants that one of their expert witnesses, Dr. John Porterfield, would testify that the hospital deviated from the standard of care in the manner in which it reviewed and renewed Dr. Runstrom’s privileges.

Plaintiffs’ second set of interrogatories to the hospital is the subject of this appeal. These interrogatories, which were answered in part, sought information concerning: (1) the hospital’s suspension or restriction of Dr. Runstrom’s privileges; (2) the information relied upon and the investigations undertaken by the hospital’s peer review committee in reviewing Dr. Runstrom’s staff privileges and clinical competency; and (3) the medical care, including mental health care, that Dr. Runstrom received as a patient at the hospital.

The hospital answered in full interrogatory Nos. 1 and 2, which asked the effective dates of any suspension or restriction of Dr. Runstrom’s medical staff privileges, the nature of the restrictions, the conditions imposed upon the privileges by the restrictions, and the dates upon which any suspension or restriction ended. Specifically, the hospital disclosed that Dr. Runstrom’s staff privileges had been suspended on October 6, 1975, and reinstated on February 3, 1976. These privileges had been suspended a second time on October 25, 1984, and had not been reinstated.

Interrogatory No. 3 requested:

“If the answer to Interrogatory No. 1, above, is in the affirmative, please state what steps the defendant hospital took to supervise Dr. Runstrom when he was admitting patients and/or treating patients at the defendant hospital, following the termination or conclusion of each such period of suspension or restriction of his privileges as a member of the medical staff of defendant hospital.”

The hospital objected to interrogatory No. 3 on the ground that what the interrogatory actually sought was not the discoverable results of the internal review of Dr. Runstrom’s privileges and clinical competency, but the nature and content of the hospital’s peer review process itself. The hospital maintained that the information sought was privileged and confidential under the Medical Studies Act (Ill. Rev. Stat. 1987, ch. 110, par. 8—2101 et seq.).

Interrogatory No. 4 requested the hospital to state:

“(a) whether the defendant hospital *** [after any suspension] required Dr. Runstrom to submit any evidence of his men-
tal, emotional or physical condition other than and in addition to, the uniform application for reappointment to the medical-dental staff, and if so,
(1) the dates upon which the defendant hospital required Dr. Runstrom to do so;
(2) the nature of the evidence of his mental, emotional or physical condition which the defendant hospital required Dr. Runstrom to submit in each instance.
(b) whether the defendant hospital *** [after any suspension] required Dr. Runstrom to submit to any medical, or psychiatric examinations, tests or treatments, and if so,
(1) the dates upon which the defendant hospital required Dr. Runstrom to do so;
(2) the person or persons to whom Dr. Runstrom was required to submit himself for examinations, tests or treatments in each such instance;
(3) whether the defendant hospital required written reports to be made of the results of each such examination, test or treatment; and
(4) who chose the person or persons to whom Dr. Runstrom was required to submit himself for examinations, tests or treatment in each such instance.”

The hospital objected to this interrogatory on the ground that it requested information privileged and confidential, not only under the Medical Studies Act, but also under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987, ch. 91½, par. 801 et seq.) and the physician-patient privilege (Ill. Rev. Stat. 1987, ch. 110, par. 8—802). The interrogatory was also objected to as overly broad and seeking irrelevant information.

The hospital raised the same objections to interrogatory No. 6, which requested it to state the following:

“(a) on how many occasions Richard Runstrom was a patient at SwedishAmerican Hospital;
(b) on what specific dates was Richard Runstrom a patient at SwedishAmerican Hospital;
(c) on each such occasion, was Richard Runstrom admitted as an in-patient, or treated on an out-patient basis;
(d) on each such occasion, who was the admitting or principal treating physician;
(e) on each such occasion, what was the admitting or original diagnosis and what was the discharge or final diagnosis; and
(f) on each such occasion, what was the nature of all examinations, tests or treatment rendered.”

Subject to objections, the hospital answered this interrogatory in part by disclosing that Dr. Runstrom had been an inpatient at the hospital in December 1971, November 1972, and November 1973. The hospital refused to answer the balance of the interrogatory, incorporating by reference its objections to interrogatory No. 4, especially the physician-patient privilege and mental health privilege. The hospital further refused to identify each and every outpatient test or treatment Dr. Runstrom had ever received as a patient “because of the undue burden,” in examining all outpatient records of the various departments over a period of 63 years, Dr. Runstrom’s age at the time of the occurrence.

On May 2, 1988, plaintiffs moved to compel complete answers to interrogatory Nos. 3, 4, and 6. The hospital filed a written response in support of its objections. Included with that response was evidence, in the form of the hospital’s medical staff bylaws, portions of depositions taken of certain physicians on the hospital’s staff, and the affidavit of Dr. Robert Klint, chief executive officer of the hospital, demonstrating that information responsive to interrogatory No. 4 was an integral part of the hospital’s credentials committee’s review of a physician’s privileges. That evidence showed that the credentials committee had the authority to require a physician “to submit any evidence of his current health status requested by the executive committee of the medical staff.”

The hospital’s medical staff bylaws demonstrated that a physical or mental examination was required for use in the credentials review process when the circumstances warranted such investigation into a physician’s health status. The bylaws provided:

“When appropriate, the Credentials Committee may require an impartial physical or mental examination as part of the reapplication process or during the appointment year to aid it in determining whether clinical privileges should be granted or continued and shall require that the results be made available for the committee’s consideration.”

The bylaws also provided that during a physician’s term of appointment, if a specific question was raised as to his competency or his care of patients, the hospital’s credentials committee could institute an investigation and make recommendations for reduction, suspension, or revocation of his clinical privileges. The affidavit of Dr. Robert Klint, chief executive officer of the hospital, stated that all information required or considered in the process of reappointment or in a special investigation was considered and treated as confidential by the hospital.

The hospital also submitted evidence showing that the information requested by interrogatory No. 3 would disclose the nature and content of the various peer reviews of Dr. Runstrom, in addition to any investigations undertaken by the credentials committee during the doctor’s reappointment process or any special investigations. Dr. Klint’s affidavit set forth specific examples of peer review activities at the hospital, including reviews of patient deaths, utilization review, reviews of medical care, and reviews of patient charts. Dr. Klint stated that these activities were considered and treated as confidential by the hospital. Dr. Klint also stated that the disclosures sought in interrogatory Nos. 3 and 4 would invade the confidentiality of in-hospital review activities and, thus, “would severely hamper our ability to enlist the full cooperation and participation of the independent physicians on the medical staff in the review of their peers.”

On May 26, 1988, the circuit court heard argument on plaintiffs’ motion to compel. On June 16, 1988, the court orally granted plaintiffs’ motion and ordered the hospital to fully answer interrogatory No. 3, specifically requiring disclosure of information such as chart, medical care, and death reviews; interrogatory No. 4, requiring disclosure of any mental or physical examination or other evidence of health status that was requested in consideration of Dr. Runstrom’s privileges; and interrogatory No. 6, requiring disclosure of medical or psychiatric care and treatment Dr. Runstrom received. The court acknowledged that some of its rulings were not consistent with its previous rulings (e.g., in 1986, the court had quashed two subpoenas issued by plaintiffs’ counsel for medical and psychiatric records pertaining to Dr. Runstrom) but that the “case has to get over with somehow.” The court entered a written order on June 30, 1988, incorporating its oral ruling.

On June 30, 1988, Jeffry Spears, counsel for the hospital, filed a response to the court’s ruling, declining to furnish the requested information. The court found attorney Spears in contempt of court and assessed a fine in the amount of $25. The hospital and Spears appeal from the court’s ruling granting the plaintiffs’ motion to compel and from the order of contempt.

The hospital argues that the trial court erred in ordering the hospital to disclose information that was privileged and confidential under the Medical Studies Act (the Act) (Ill. Rev. Stat. 1987, ch. 110, par. 8—2101 et seq). It is the hospital’s position that the information to be disclosed, pursuant to plaintiffs’ interrogatory Nos. 3 and 4, would reveal the specific nature and content of any peer review conducted by hospital committees, particularly the credentials committee, concerning Dr. Runstrom’s privileges and work; the specific inquiries made by the committee reviewers; and the specific nature of information, data, and other materials considered by the committee reviewers. Such discovery, the hospital maintains, would invade the committee-peer-review process itself and is, therefore, prohibited by both the plain language of the Act and the Illinois cases construing the Act.

The Medical Studies Act provides in pertinent part:

“All information, interviews, reports, statements, memoranda or other data of the *** committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees *** used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 8—2101.)

Under the Act, both the discovery and the use, as evidence, of such information are prohibited. (Ill. Rev. Stat. 1987, ch. 110, par. 8—2102.) Moreover, the improper disclosure of such privileged information constitutes a Class A misdemeanor. Ill. Rev. Stat. 1987, ch. 110, par. 8—2105.

The purpose of the Act

“is to ensure the effectiveness of professional self-evaluation, by members of the medical profession, in the interest of improving the quality of health care. The Act is premised on the belief that, absent the statutory peer-review privilege, physicians would be reluctant to sit on peer-review committees and engage in frank evaluations of their colleagues.” (Jenkins v. Wu (1984), 102 Ill. 2d 468, 480.)

Since its original enactment in 1961, the Act has been repeatedly amended. Each amendment has broadened the statutory privilege, further restricting access to privileged information. See Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 845 (discussion of various amendments).

Although the Act might in some cases inconvenience medical malpractice plaintiffs in their ability to discover some information that may be relevant to their action, the Act does allow for the discovery of a patient’s own records. (Ill. Rev. Stat. 1987, ch. 110, par. 8—2101.) Additionally, medical malpractice plaintiffs not only have full and complete access to their own records but also can depose all persons involved in their treatment and engage experts to give opinions as to the quality of care received. Jenkins, 102 Ill. 2d at 479.

In the instant case, the plaintiffs have already discovered, among other things, the hospital’s bylaws; the bylaws, rules, and regulations of the hospital’s medical staff; information concerning the hospital’s licensure and accreditation; and the identity of the nurses involved in plaintiff Linnea Pritchard’s care. Plaintiffs have deposed or noticed the depositions of each defendant physician, the hospital’s president, and various members of the hospital’s executive committee and credentials committee. Additionally, the court granted plaintiffs leave to take the deposition of Dr. Kenneth Skaar, who, plaintiffs advised the court, was defendant Dr. Runstrom’s brother-in-law, as well as a fellow member of the hospital’s medical staff, and who had “extensive information as to the physical and mental condition of Dr. Runstrom and other facts which might have a bearing upon Dr. Runstrom’s competency to practice medicine.”

Further, plaintiffs disclosed to the hospital the identity of two physicians whom plaintiffs might call as expert witnesses at trial to testify regarding the medical standards of care applicable to the defendant doctors as well as to the hospital.

In light of the discovery which plaintiffs have already pursued, and can still pursue, as well as the experts they may call to testify, any denial of the information sought by plaintiffs in the interrogatories in question should have little impact, if any, on their ability to maintain their cause of action. Moreover, in light of the language of the Act, as well as the purposes to be served by the statute, we believe that the information sought in the interrogatories is protected by the Act.

Plaintiffs’ interrogatory No. 1 sought to determine if Dr. Runstrom’s privileges as a member of the medical staff of the hospital had ever been suspended or restricted. Subject to its objection that this interrogatory was overly broad and sought irrelevant information, the hospital answered in the affirmative. In response to plaintiffs' interrogatory No. 2 the hospital set forth the specific dates of any suspension or restriction of Dr. Runstrom’s privileges, the dates upon which such restriction or suspension was terminated, and the specific nature of the restrictions. The hospital refused, however, to answer interrogatory No. 3 because, the hospital maintained, the interrogatory sought information that was privileged and confidential under the Act.

Interrogatory No. 3 requested:

“If the answer to Interrogatory No. 1, above, is in the affirmative, please state what steps the defendant hospital took to supervise Dr. Runstrom when he was admitting patients and/or treating patients at the defendant hospital, following the termination or conclusion of each such period of suspension or restriction of his privileges as a member of the medical staff of defendant hospital.”

The Act makes confidential “all information, interviews, reports, statements, memoranda or other data” of hospital committees, such as the credentials committee, used for internal quality control or for improving patient care, including information used for limiting and revoking privileges. (Ill. Rev. Stat. 1987, ch. 110, par. 8—2101.) Under the plain language of the Act, the restrictions imposed by a hospital on a particular physician’s privileges to practice as a result of the internal review process are discoverable (see Richter v. Diamond (1985), 108 Ill. 2d 265, 269-70; Gleason v. St. Elizabeth Medical Center (1985), 135 Ill. App. 3d 92, 94-95), but the nature and content of the process itself, which is the type of information sought in plaintiffs’ interrogatory No. 3, is privileged and confidential. That the nature and content of the peer review process was the information sought by interrogatory No. 3 is evident from the court’s ruling. The court determined that interrogatory No. 3 required disclosure of any peer review of the medical care and charts of Dr. Runstrom’s patients, including any death cases, as well as disclosure of what type of information was considered by the hospital in supervising the doctor’s admission and/or treatment of patients at the hospital. The information, ordered by the court to be disclosed, fell well within the scope of section 8—2101 of the Act and was privileged.

Had the trial court limited the material to be discovered to that required in the Richter and Gleason cases we would have no trouble in affirming the trial court. However, in this case the trial court’s order exceeded the scope of the inquiry allowed in the cited cases and, therefore, fell in contravention of the statutory prohibition.

Likewise, the information sought in plaintiffs’ interrogatory No. 4, which the court stated was similar to, but more specific than, that sought in interrogatory No. 3, was also privileged. Interrogatory No. 4 requested the hospital to state:

“(a) whether the defendant hospital *** [after any suspension] required Dr. Runstrom to submit any evidence of his mental, emotional or physical condition other than and in addition to, the uniform application for reappointment to the medical-dental staff, and if so
(1) the dates upon which the defendant hospital required Dr. Runstrom to do so;
(2) the nature of the evidence of his mental, emotional or physical condition which the defendant hospital required Dr. Runstrom to submit in each such instance.
(b) whether the defendant hospital *** [after any suspension] required Dr. Runstrom to submit to any medical, or psychiatric examinations, tests or treatments, and if so
(1) the dates upon which the defendant hospital required Dr. Runstrom to do so;
(2) the person or persons to whom Dr. Runstrom was required to submit himself for examinations, tests or treatments in each such instance;
(3) whether the defendant hospital required written reports to be made of the results of each such examination, test or treatment; and
(4) who chose the person or persons to whom Dr. Runstrom was required to submit himself for examinations, tests or treatment in each such instance.”

Similarly to interrogatory No. 3, what plaintiffs requested in this interrogatory was not the end result of the peer review process but information regarding the workings of the process itself. The record establishes that disclosure of the information requested in interrogatory No. 4 would, if deemed appropriate, be requested and reviewed by the hospital’s credentials committee either as part of the reappointment process or as a special investigation affecting the physician’s privileges. As set forth in the affidavit of Dr. Robert Klint, chief executive officer of the hospital, evidence of the physical and mental health of a staff physician is something which may be required by the credentials committee in the context of reviewing a physician’s competence and deciding whether to continue the physician’s staff privileges. Moreover, this disclosure is specifically authorized by the hospital’s bylaws as part of the reappointment process.

In Mennes v. South Chicago Community Hospital (1981), 100 Ill. App. 3d 1029, the plaintiffs alleged that the defendant hospital was negligent in failing to adequately check and review the qualifications of two of its staff physicians. Plaintiff sought discovery of materials regarding the granting of privileges and reappointment of the defendant physicians to the hospital’s medical staff. The court held that despite plaintiffs’ allegations of negligence in the credential and reappointment process, such information was, nevertheless, protected by the Medical Studies Act. The court said:

“We agree with defendant hospital’s contention that if all staff appointment material could be obtained and used against the hospital whenever a patient urged a negligent staff appointment theory, the statutory goal of candid commentary would be compromised.
* * *
We will not subject hospital staff review committees to the ever impending threat of public or judicial scrutiny under the auspices of the discovery process. For us to rule otherwise would gravely hamper the effectiveness of such committees as well as defeat the legislative intent in this area.” 100 Ill. App. 3d at 1031-32.

Plaintiffs here seek to discover information relied upon by the hospital in reviewing Dr. Runstrom’s privileges and competency to practice medicine at the hospital. This is precisely the type of information the Mennes court determined the Act was designed to protect from public disclosure. We believe Mennes correctly states Illinois law and, therefore, find that the trial court’s ruling requiring the hospital in the instant case to produce the protected information in question had the effect of rendering the Act meaningless. We conclude that the court erred in ordering the hospital to answer plaintiffs’ interrogatory Nos. 3 and 4.

Furthermore, we find that the information requested in interrogatory No. 4, as well as interrogatory No. 6, was privileged under the Mental Health and Developmental Disabilities Confidentiality Act. (Ill. Rev. Stat. 1987, ch. 91½, par. 801 et seq.) Plaintiffs’ interrogatory No. 4 has been set out above. Interrogatory No. 6 requested the hospital to disclose:

“(a) on how many occasions Richard Runstrom was a patient at SwedishAmerican Hospital;
(b) on what specific dates was Richard Runstrom a patient at SwedishAmerican Hospital;
(c) on each occasion, was Richard Runstrom admitted as an in-patient, or treated on an out-patient basis;
(d) on each such occasion, who was the admitting or principal treating physician;
(e) on each such occasion, what was the admitting or original diagnosis and what was the discharge or final diagnosis; and
(f) on each such occasion, what was the nature of all examinations, tests or treatment rendered.”

The hospital answered this interrogatory in part, stating that Dr. Runstrom was admitted as an inpatient in 1971, 1972, and 1973. The hospital refused to disclose the identity of the attending physician on each occasion as well as the diagnoses and the nature of examinations, tests, or treatments rendered, as such information fell within the scope of the Mental Health and Developmental Disabilities Confidentiality Act (the Act) (Ill. Rev. Stat. 1987, ch. 9172, par. 801 et seq.).

The Mental Health and Developmental Disabilities Confidentiality Act provides that “[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act.” (Ill. Rev. Stat. 1987, ch. 9172, par. 803.) The “records” and “communications” made confidential under the Act refer to any communication made during or in connection with providing mental health or developmental disability services, any record kept in the course of providing such services, and any information which indicates that a person is a “recipient.” (Ill. Rev. Stat. 1987, ch. 9172, par. 802(1), (7).) “Mental health or developmental disabilities services” include “examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation.” (Ill. Rev. Stat. 1987, ch. 9172, par. 802(3).) A “recipient” is defined as a “person who is receiving or has received mental health or developmental disabilities services.” (Ill. Rev. Stat. 1987, ch. 9172, par. 802(6).) The exceptions to the Act, allowing disclosure by court order, are very narrow, and none of them apply here. Ill. Rev. Stat. 1987, ch. 91½, par. 810.

To meet the avowed statutory purpose of protecting the confidentiality of the records and communications of those receiving mental health services, the Act is premised on a general prohibition against the disclosure of such information, except where specifically provided for in the Act. (People v. Foskey (1988), 175 Ill. App. 3d 638, 644; Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 216.) The general prohibition against disclosure of recipient records and communications was enacted because:

“Presumably, the patient in psychotherapeutic treatment reveals the most private and secret aspects of his mind and soul. To casually allow public disclosure of such would desecrate any notion of an individual’s right to privacy. At the same time, confidentiality is essential to the treatment process itself, which can be truly effective only when there is complete candor and revelation by the patient. Finally, confidentiality provides proper assurances and inducement for persons who need treatment to seek it.” (74 Ill. App. 3d at 217.)

Nevertheless, the legislature recognized the existence of countervailing societal needs which demand disclosure in certain instances by creating nine exceptions to the nondisclosure mandate.

In the instant case, as the hospital points out, plaintiffs’ interrogatory Nos. 4 and 6 sought information which was privileged under the Act. In interrogatory No. 4 plaintiffs asked whether Dr. Runstrom had been required by the hospital to undergo psychiatric examinations, tests, or treatments, and, if so, what physician he saw and whether any records of such examinations, tests, or treatments were kept. This interrogatory required disclosure of whether Dr. Runstrom was a recipient of mental health services, information which is clearly privileged under the Act. Interrogatory No. 6, by its breadth, went even further, requiring specific information regarding Dr. Runstrom’s treating physicians and the mental health diagnosis, tests, and treatments rendered to the doctor.

Moreover, none of the statutory exceptions to the nondisclosure mandate applied in the instant case to permit disclosure. Section 10(a)(1) of the Act governs disclosure in civil actions and provides:

“Records and communications may be disclosed in a civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense ***.” (Ill. Rev. Stat. 1987, ch. 91½, par. 810(a)(1).)

Thus, the privilege against disclosure of communications between patient and therapist can only be waived expressly or affirmatively by placing in issue one’s own mental condition. (Bland v. Department of Children & Family Services (1986), 141 Ill. App. 3d 818, 826.) Such is not the case here where plaintiffs, rather than the “recipient,” Dr. Runstrom, have attempted to place the doctor’s mental condition in issue.

We conclude that the information sought in plaintiffs’ interrogatory Nos. 4 and 6 dealing with Dr. Runstrom’s mental condition was privileged and not discoverable under the terms of the Act and that, therefore, the trial court erred in compelling disclosure of this information.

Further, the physician-patient privilege (Ill. Rev. Stat. 1987, ch. 110, par. 8—802) prohibited disclosure of the confidential medical information sought in interrogatory Nos. 4 and 6. The interrogatories in question requested disclosure of information regarding the nature of the medical evaluations performed on Dr. Runstrom and specific information regarding diagnosis, examinations, tests, or treatment rendered.

The physician-patient privilege provides in relevant part:

“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 8—802.)

This privilege exists as to “any information” acquired by a physician in a professional capacity which is “necessary” to enable him to “serve” his patient. (Geisberger v. Willuhn (1979), 72 Ill. App. 3d 435, 437.) In creating the physician-patient privilege, the legislature recognizes that patients have a right to be free from the embarrassment and invasion of privacy that often accompany the disclosure of medical information. (Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 602-03.) Nevertheless, the statute contains several exceptions wherein the legislature determined that the protection afforded by the physician-patient privilege should give way to the public’s desire to ascertain the truth. (148 Ill. App. 3d at 603.) None of the statutory exceptions apply to the case at bar.

Of the exceptions set forth in the statute, only three pertain to civil actions of the nature brought here. (Ill. Rev. Stat. 1987, ch. 110, pars. 8—802(2), (3), (4).) Section 8—802(2) provides that a patient’s medical information is discoverable “in actions, civil or criminal, against the physician for malpractice.” (Ill. Rev. Stat. 1987, ch. 110, par. 8—802(2).) This exception, however, is “limited to only allow the disclosure of the records of the patient who is bringing the malpractice action.” (Parkson v. Central Du Page Hospital (1982), 105 Ill. App. 3d 850, 855; see also Petrillo, 148 Ill. App. 3d at 603.) Since the medical records of plaintiff Linnea Pritchard are not sought to be disclosed, this exception does not apply to the instant case.

Likewise, neither exception (3) nor exception (4) applies to allow disclosure here. These exceptions provide that disclosure of confidential medical information is allowed “with the expressed consent of the patient” (Ill. Rev. Stat. 1987, ch. 110, par. 8—802(3)), and “in all actions brought by or against the patient, *** wherein the patient’s physical or mental condition is an issue.” (Ill. Rev. Stat. 1987, ch. 110, par. 8—802(4).) As the hospital correctly points out, the plaintiffs do not contend that Dr. Runstrom or his estate has expressly consented to disclosure of confidential medical information pertaining to him and, thus, exception (3) cannot apply in this case.

On the other hand, plaintiffs do contend that medical information pertaining to Dr. Runstrom is discoverable under exception (4) since his physical condition has been placed in issue by virtue of plaintiffs’ complaint. However, plaintiffs ignore the fact that for this exception to apply, the patient, Dr. Runstrom, rather than plaintiffs, must have affirmatively placed his physical condition in issue. (See Petrillo, 148 Ill. App. 3d at 603.) Here, Dr. Runstrom has not affirmatively placed his condition in issue and, therefore, has not consented to the disclosure of this confidential medical information. Since none of the statutory exceptions to the physician-patient privilege apply in the case at bar, we find that the medical information sought by the plaintiffs fell within the scope of the physician-patient privilege and that the trial court erred in requiring its disclosure.

In light of our findings above, we find it unnecessary to discuss the hospital’s final issue that the interrogatories were overly broad and sought irrelevant information.

For all the foregoing reasons, the Winnebago County circuit court’s order compelling defendant hospital to disclose the information requested in the interrogatories in question and the contempt order imposing a sanction for failure to do so are reversed, and the cause is remanded for further proceedings consistent with this disposition.

Reversed and remanded.

DUNN and McLAREN, JJ, concur.


source: Caselaw Access Project

author: JUSTICE REINHARD JUSTICE McLAREN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENEE KERGER, Defendant-Appellant.
    Second District
    No. 2—88—1087
    Opinion filed December 1, 1989.

      McLAREN, J., dissenting.
    William E Linkul, of Glen Ellyn, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Michael L. Shevick, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the'opinion of the court:

Defendant, Renee Kerger, was charged by indictment in the circuit court of Du Page County with failure to report an accident involving death or personal injury. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—401(b).) Following a bench trial, defendant was found guilty and was sentenced to a one-year term of conditional discharge and a $400 fine.

On appeal, defendant raises two issues: (1) whether the evidence establishes beyond a reasonable doubt that defendant was “involved” in a motor vehicle accident within the meaning of section 11—401 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—401); and (2) whether, if defendant was involved in a motor vehicle accident, she complied with sections 11—401(b) and 11—403 of the Code.

The following relevant facts were adduced at defendant’s bench trial. On September 27, 1987, at approximately 11:30 p.m., defendant was driving east on Lake Street in Addison, Illinois. In the passenger seat was her boyfriend, Tim Jones. Defendant was followed by a friend, Richard Barsanti, who was approximately one car length behind defendant’s vehicle. Defendant, Jones, and Barsanti had previously been at a wedding reception. Barsanti was following defendant to Hillside, Illinois. Immediately behind Barsanti’s vehicle was a third vehicle with five occupants, one of whom was Lisa DeNittis, who was seated in the left rear passenger seat, and another was Rosemary Tucker, who was seated in the middle rear passenger seat.

Lake Street is a four-lane road at the location of the accident with two lanes in each direction. There is some street lighting along Lake Street at this location. Although there is some discrepancy between several witnesses as to whether the three vehicles were in the inside lane or the curb lane as they proceeded east on Lake Street, it is clear that the Barsanti vehicle was immediately behind defendant’s vehicle and followed closely by the vehicle containing DeNittis and Tucker.

While the various witnesses disagree as to certain details, the collective testimony establishes that a pedestrian attempted to cross Lake Street from north to south. Both DeNittis and Tucker testified that as the pedestrian attempted to cross the eastbound lanes of Lake Street, he was struck by the left side of defendant’s vehicle, appeared to tumble or fall, and was hit head on by Barsanti’s vehicle. The pedestrian, Richard Herman, died as a result of the injuries sustained in this incident.

Defendant testified that as she was driving east on Lake Street, she observed the pedestrian crossing Lake Street toward her vehicle. Defendant was forced to swerve sharply to the right to avoid hitting the pedestrian, and as she swerved, she heard a “thump” toward the rear of her vehicle. She immediately pulled over to the curb and stopped. She stated that she did not know if the pedestrian came in contact with her vehicle.

Jones, who had been sleeping, exited defendant’s vehicle and went back to Barsanti’s vehicle. Defendant also exited her vehicle and walked around it to see if it had sustained any damage, which, according to defendant, it had not. She then sat in the front passenger seat previously occupied by Jones.

The vehicle in which DeNittis and Tucker were passengers also pulled over and stopped. Rosemary Tucker testified that she went up to defendant, who was standing beside the passenger door of her vehicle, and observed defendant to be upset, crying, and hysterical. According to Tucker, defendant said “[M]y God, I hit him; I can’t believe I hit him.”

Although defendant’s and Jones’ testimony differs somewhat as to the subsequent events, it appears that defendant remained on or near the scene of the accident for between 45 minutes and two hours. Defendant apparently sat on a nearby porch for part of that time, and eventually Jones returned to her and told her to get into her vehicle, and he drove her home.

The evidence establishes that there were five or six police officers at the scene from time to time while defendant and Jones were present. Defendant did not talk to any police officers at the scene, nor did she contact the police within three hours after the accident. Jones testified that he attempted to approach the Barsanti vehicle and inquire as to Barsanti’s whereabouts and was told to “get out of here” by a police officer.

Sometime after driving defendant home, Jones went to the Addison police department, where he eventually gave a written statement to the police indicating that he had been driving defendant’s vehicle at the time of the accident. Jones admitted at trial that he falsified the statement to police as to who was driving defendant’s vehicle.

In finding defendant guilty, the court found that defendant did not actually contact the pedestrian with her vehicle. The court further ruled that contact was unnecessary to constitute involvement in an accident and that based on the other evidence defendant was involved in an accident within the meaning of section 11—401 of the Code.

Defendant contends that because there was no physical contact between her vehicle and the pedestrian nor “substantial implication or connection” between her vehicle and the pedestrian who was run over by another vehicle, she was not “involved” in a motor vehicle accident and had no responsibilities under sections 11—401 and 11—403 of the Code. As defendant notes, the Code does not define the term “involved.” Section 11—401 of the Code provides in pertinent part:

“(a) The driver of any vehicle involved in a motor vehicle accident resulting in personal injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until the requirements of Section 11—403 have been fulfilled.” Ill. Rev. Stat. 1987, ch. 95½, par. 11—401(a).

In construing a statute, the court must discover the intent of the legislature in order to give it effect. (People v. Parker (1988), 123 Ill. 2d 204, 209, 526 N.E.2d 135.) To do so, the court must consider the language of the statute, the purpose of the legislation, and the reason for its enactment. (People v. Haywood (1987), 118 Ill. 2d 263, 271, 515 N.E.2d 45.) Although criminal statutes must be strictly construed in favor of the defendant and may not be extended in their application to cases which do not, by the strictest construction, come under their provisions (People v. Parvin (1988), 125 Ill. 2d 519, 525, 533 N.E.2d 813, 815), they must not be so rigidly construed as to defeat the intent of the legislature. Haywood, 118 Ill. 2d at 271, 515 N.E.2d at 49.

Neither party cites, nor do we find, any Dlinois case interpreting the meaning of “involved in a motor vehicle accident.” We begin, therefore, by noting that the purpose of the statute is to inform those who have been injured or damaged by another driver or the proper authorities if necessary of that driver’s identity. (People v. Young (1982), 92 Ill. 2d 236, 240, 441 N.E.2d 641; People v. Lucus (1968), 41 Ill. 2d 370, 373, 243 N.E.2d 228.) In serving this purpose, the statute requires the driver of a vehicle involved in a motor vehicle accident to comply with the reporting requirements of section 11—403. We do not agree with defendant’s narrow interpretation that the language requires that there be actual contact before a driver will be considered to have been involved in a motor vehicle accident. We can readily identify numerous situations where the driver of a motor vehicle would be involved in a motor vehicle accident and yet not have contact with another vehicle or pedestrian. Such a narrow interpretation as urged by defendant would defeat the purpose of the statute in many situations where the statute’s purpose should otherwise be served.

In opinion No. S—1430 of the Illinois Attorney General (1979 Ill. Att’y Gen. Op. 57), the question addressed was whether there must be actual physical contact between vehicles before a driver is deemed to be “involved” pursuant to section 11—403. The example cited in the request for an opinion was where the first driver commits a driving error and the second driver reacts in a manner which avoids a collision with the first driver but still results in injury or damage to the second driver. It was asked whether the first driver is “involved” in an accident. The Attorney General stated that there does not have to be actual physical contact between the vehicles before a driver is deemed to be “involved.” The words “involved in an accident” within the statute were construed by the Attorney General to mean “implicated in an accident or connected with the accident in a substantial manner.” (1979 Ill. Att’y Gen. Op. at 59.) The Attorney General further concluded that, in the example cited, the first driver would be “involved,” but each case would depend upon its own facts.

Although an opinion of the Attorney General is not binding on this court, a well-reasoned opinion of the Attorney General is entitled to considerable weight in resolving a question of first impression in this State regarding the construction of an Illinois statute. (City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 130-31, 384 N.E.2d 310.) In this instance, the opinion of the Attorney General supports our conclusion that there need not be physical contact between a vehicle and, in this case, a pedestrian before a driver is deemed to be “involved in a motor vehicle accident.”

While we recognize that a variety of factual situations might arise absent any contact, some of which might not require a driver to comply with section 11—403, we need only concern ourselves with the facts of this case. Any future cases requiring interpretation of this language must necessarily depend upon the particular facts of the case in light of the purpose behind the statute. To hold otherwise would allow drivers of automobiles who do not come in contact with a pedestrian or another vehicle or who are otherwise arguably involved in a motor vehicle accident to escape detection and effectively circumvent the purpose behind the statute.

Here, the evidence establishes that defendant observed the pedestrian walking across the roadway toward her- vehicle. She swerved sharply to the right and heard a “thump” near the rear of her vehicle as she did so. While the trial court found that defendant’s vehicle did not contact the pedestrian, a finding not challenged on appeal, the two witnesses, DeNittis and Tucker, testified that the pedestrian was struck by defendant’s vehicle. At the very least, this testimony establishes that defendant’s vehicle came very close to the pedestrian. The pedestrian then either stumbled or fell, and Barsanti’s vehicle struck him immediately thereafter. Additionally, defendant stated to Tucker after the accident that she hit the pedestrian. Under these circumstances, we conclude that defendant was “involved in a motor vehicle accident.”

We emphasize that it is not necessary to determine, for purposes of deciding whether defendant was involved in a motor vehicle accident, whether defendant caused or was at fault for the accident as further urged by defendant. Such an inquiry is one for the police and the courts to undertake at a later time. This inquiry will of course be better undertaken if those who are involved in a motor vehicle accident are required to come forward and identify themselves so that the police may properly investigate the accident.

Of course, to show a violation of section 11—401 the prosecution is required to prove that the accused had knowledge that the vehicle he was driving was involved in an accident or collision. (People v. Nunn (1979), 77 Ill. 2d 243, 252, 396 N.E.2d 27.) That issue is not presented in this appeal.

We next address defendant’s contention that she substantially complied with the requirements of sections 11—401 and 11—403. Section 11—401(b) requires that any driver “who has failed to stop or to comply with” the requirements of section 11 — 403 “shall, within 3 hours after such motor vehicle accident *** report the place of the accident, the date, the approximate time, the driver’s name and address, the registration number of the vehicle driven, and the names of all other occupants of such vehicle, at a police station or sheriff’s office near the place where such accident occurred.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—401(b).) Section 11—401(a) requires the driver of a vehicle involved in a motor vehicle accident to stop and “remain at the scene of the accident until the requirements of Section 11—403 have been fulfilled.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—401(a).) Consequently, to avoid prosecution under 11—401(b), a driver involved in a motor vehicle accident must either comply with the requirements under 11—403 or comply with the requirements of 11—401(b). The evidence in this case establishes that defendant did neither.

Section 11—403 states in pertinent part:

“§11—403. Duty to give information and render aid. The driver of any vehicle involved in a motor vehicle accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give the driver’s name, address, registration number and owner of the vehicle the driver is operating and shall upon request and if available exhibit such driver’s license to the person struck or the driver or occupant of or person attending any vehicle collided with ***.
If none of the persons entitled to information pursuant to this Section is in condition to receive and understand such information and no police officer is present, such driver after rendering reasonable assistance shall forthwith report such motor vehicle accident at the nearest office of a duly authorized police authority, disclosing the information required by this Section.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—403.)

While it is undisputed that defendant stopped and remained at the scene of the accident for at least 45 minutes, it is equally clear that she did not provide nor attempt to provide the information required by section 11—403. While the person entitled to the information was in no condition to receive and understand it, there were at least five police officers present, any one of whom could have received the required information had defendant attempted to do so in conformance with section 11—403.

Furthermore, defendant did not, after leaving the scene without complying with the requirements of section 11—403, provide the required information within three hours under section 11—401(b). We are not persuaded by defendant’s argument that she was excused from compliance because she knew that her boyfriend, Tim Jones, went to the Addison police department, particularly where there is no evidence that he went there to provide the required information and, in fact, provided false information. The evidence establishes beyond a reasonable doubt that defendant failed to comply with section 11—401(b).

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

DUNN, J., concurs.

JUSTICE McLAREN,

dissenting:

Because I believe the majority opinion has interpreted section 11—401 too broadly, I must respectfully dissent. I agree with the majority that contact need not be made in order to be involved in an auto accident under section 11—401. However, I believe the interpretation given by the majority makes liable not only people who are “involved” in an accident but also people who are not “involved” in the accident but who are material witnesses.

There are sufficient facts in this case to support a finding that contact was made between the defendant’s vehicle and the deceased. However, since the trial court found that there was no contact between the defendant’s vehicle and the deceased, I believe the remaining facts presented by all the witnesses clearly establish that the car in which the plaintiff was driving was not the proximate cause nor a proximate cause of the accident which took the life of the pedestrian. Thus, the defendant is, at best, a material witness who is not involved in the auto accident. The court committed error when it found beyond a reasonable doubt that the defendant was “involved” in the accident.

Both defendant and the State argue that the reasoning of one of the cases cited by the Attorney General, People v. Bammes (1968), 265 Cal. App. 2d 626, 71 Cal. Rptr. 415, should apply to the instant case. In Bammes, the defendant’s car turned into the path of a station wagon. To avoid hitting the defendant’s car, the station wagon swerved to the left into the path of an oncoming truck. The station wagon and the truck collided head on. The station wagon was demolished and five of its occupants killed. The defendant saw the crash in her rearview mirror, but continued driving. Based on these facts, the California appellate court reasoned that the defendant’s action of turning in front of the oncoming station wagon “was an efficient cause of the latter’s colliding with the truck and that therefore defendant was ‘involved’ in the accident.” (Bammes, 265 Cal. App. 2d at 631, 71 Cal. Rptr. at 418.) The court noted that even if the “real cause” of the accident had been the station wagon driver’s error in attempting to pass instead of sharply braking, “nevertheless defendant was involved in the accident because it was her pulling out into the intersection in front of the oncoming station wagon which precipitated the necessity for some immediate action” by the driver of the station wagon. (Emphasis in original.) (Bammes, 265 Cal. App. 2d at 631, 71 Cal. Rptr. at 419.) The court concluded that one may be involved in an accident, yet not be at fault. (Bammes, 265 Cal. App. 2d at 632, 71 Cal. Rptr. at 419.) The Bammes definition of “involved” is that the driver precipitated or caused the vehicle or pedestrian to come into contact with something, even if the driver was not at fault. (Bammes, 265 Cal. App. 2d at 632, 71 Cal. Rptr. at 419.) The majority’s interpretation is in conflict with the rule that penal statutes should be strictly construed in favor of defendant. To define “involved” as covering a driver who was not responsible for an accident nor made contact with anything would impermissibly extend the statute to a situation which by strict construction, does not come under its provisions. One purpose of this statute in question is to facilitate victims or their families in identifying and seeking redress from tortious drivers. This interpretation is not furthered by the majority’s interpretation punishing material witnesses who did not precipitate or cause an accident.

If a driver’s car has collided with something or someone, or another car has collided with that of the driver, a reasonable person would know that he or she had been involved in an accident. However, if there is no contact such as the trial court found in this case, there must be something which would indicate to a reasonable person that he or she had been involved in an accident. Under Bammes, when there is no contact between a person or car and the defendant’s car, defendant is “involved” in the accident if he or she did something to cause or precipitate the accident. The trial court based its decision on the fact that the defendant believed she hit the pedestrian. However, her subjective belief is irrelevant, because if the evidence showed that the defendant was not involved in the accident, her belief that she was does not establish her involvement. If a defendant did not commit an offense, he cannot be convicted, even if he believed that he committed the offense.

The majority has stated, “We emphasize that it is not necessary to determine, for purposes of deciding whether defendant was involved in a motor vehicle accident, whether defendant caused or was at fault for the accident as further urged by defendant. Such an inquiry is one for the police and the courts to undertake at a later time. This inquiry will of course be better undertaken if those who are involved in a motor vehicle accident are required to come forward and identify themselves so that the police may properly investigate the accident.” (191 Ill. App. 3d at 410-11.) Such a declaration by the majority is tantamount to a statement that if one witnesses an accident one better stop and report and let the courts and the police at some other point in time determine whether or not one is “involved” in the accident regardless of cause or fault. Such an interpretation is overly broad and goes far beyond the intent of the legislature as it makes material witnesses, not parties who may or may not be subject to liability, subject to punishment for a felony. I believe the intent of the legislature was that any individual who drove a motor vehicle and who may have been the proximate cause or a proximate cause, or who made contact with any other vehicle, person, or other instrumentality which was involved in the auto accident is required to stop and give information as required under sections 11—401(b) and 11—403 of the Code.

Since I have determined that the defendant was not involved in the auto accident, I have not not addressed the aspect of the opinion relating to whether compliance with sections 11—401(b) and 11—403 was effectuated.

Based upon the above, I respectfully dissent.


author: JUSTICE INGLIS

text:
      In re J.K. III, a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.K. III, Respondent-Appellant).
    Second District
    No. 2—88—0347
    Opinion filed November 29, 1989.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Respondent, J.K., appeals from orders of the circuit court of Kane County adjudicating him a delinquent minor and a ward of the court and placing him on probation for one year. J.K. also appeals from the circuit court’s denial of his motion to suppress evidence and quash his arrest; however, because we agree with J.K.’s contention that the circuit court lacked subject-matter jurisdiction, we need not address his contentions directed to the motion to suppress.

The record reveals the following facts. On November 12, 1987, J.K. broke into a neighbor’s home and stole a handgun. On January 16, 1988, J.K. and a friend were detained by a Montgomery police officer who thought that the two boys were runaways: Upon discovery of the handgun, the officer arrested J.K. for unlawfully concealing a weapon. While in police custody, J.K. admitted to the theft. The State filed a petition for adjudication of delinquency which charged J.K. with, inter alia, theft and criminal damage to property. The petition, dated January 19, 1988, named both J.K.’s mother and father and stated their address. The family was intact, and J.K. and his parents resided at the same address. The record contains no indication that J.K. and his parents were ever served or otherwise formally notified of the petition for adjudication.

At the detention hearing held on January 19, 1988, J.K. appeared with his father, John K. J.K. appeared with his appointed counsel and his father at all other proceedings; however, Peggy K., J.K.’s mother, never appeared. The social investigation report prepared by a probation officer on January 21, 1988, indicated that Peggy K. had been contacted by the probation officer twice, once by telephone on January 19, 1988, and once in person on January 20, 1988.

On appeal, J.K. contends that the circuit court lacked jurisdiction to conduct its delinquency proceedings because his mother was never properly notified of the delinquency petition pursuant to the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801—1 et seq.). J.K. correctly notes that the Act requires a petition for adjudication of delinquency to set forth the names and addresses of the minor, his parents, his legal guardian, or the person or persons having custody or control of the minor. (Ill. Rev. Stat. 1987, ch. 37, par. 805—13(2).) The Act further provides:

“When a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached. The summons shall be directed to the minor’s legal guardian or custodian and to each person named as a respondent in the petition.” (Ill. Rev. Stat. 1987, ch. 37, par. 805—15(1).)

The summons is to be served personally or left at the respondent’s usual place of abode (Ill. Rev. Stat. 1987, ch. 37, par. 805—15(5)); however, the Act provides for notice by certified mail or publication under certain limited circumstances (Ill. Rev. Stat. 1987, ch. 37, par. 805—16). As this court has previously noted, “[t]he method of notice appropriate to a particular respondent depends heavily on the State’s ability to identify and locate that person; only service by publication is excused under certain conditions, and if personal or abode service or service by certified mail is possible, the statute requires it.” In re J.M. (1988), 170 Ill. App. 3d 552, 565.

As J.K. correctly observes, the petition in the instant matters named him, his father, and his mother as respondents. Further, the petition noted the same address in Montgomery, Illinois, for all three respondents. Although J.K., his counsel and his father appeared at all proceedings, his mother did not attend any of the proceedings. J.K. urges this court to hold all of the proceedings before the circuit court void for lack of jurisdiction due to the lack of notice to his mother. We determine that the instant matter is controlled by People v. R.S. (1984), 104 Ill. 2d 1, wherein our supreme court held that the State, in neglecting to notify a named respondent with a known address of juvenile proceedings against her son, failed to invoke the circuit court’s jurisdiction, thus rendering all of the circuit court’s orders void. 104 Ill. 2d at 6.

It is well established that due process requires adequate notice to a minor and his parents in juvenile proceedings. (In re Application of Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428; see also In re J.M., 170 Ill. App. 3d at 564.) Further, it has been held that an adjudication of wardship of a minor without notice to a known parent of a known address constitutes a violation of both the parent’s and the minor’s due-process rights as well as a violation of the Act. (In re D.L.F. (1985), 136 Ill. App. 3d 873, 875.) In D.L.F., the State named as respondents the minor, the minor’s natural parents and foster parents, the minor’s guardian, the Department of Children and Family Services and the Juvenile Detention Center. The State’s petition noted the natural father’s address as “unknown,” and the trial court proceeded with the adjudication in the absence of service to the father. The minor appealed, claiming that the State’s failure to use diligence in locating his father violated the Act, deprived him of his due-process rights and failed to invoke the jurisdiction of the court. The appellate court agreed that both the Act and due process require notice to natural parents; however, the court stated that the “failure to provide notice to an absent parent does not always deprive a court of subject matter jurisdiction.” (D.L.F., 136 Ill. App. 3d at 875.) The appellate court held that because the father’s address was unknown, R.S. was not controlling. 136 Ill. App. 3d at 876.

The holding in D.L.F. relies on an earlier supreme court decision, In re J.W. (1981), 87 Ill. 2d 56, in which the minor’s mother was the sole actual custodian. In J.W., the minor’s mother did not receive formal notice or service of summons, although she did have actual notice of the juvenile proceedings, and she did appear and participate at all times. The supreme court held that the mother waived formal service and submitted herself to the court’s jurisdiction. (J.W., 87 Ill. 2d at 62.) The court further held that the minor’s father, whose identity and whereabouts were unknown, was not an indispensable party and it was not improper for the circuit court to proceed with the delinquency hearing in the father’s absence. 87 Ill. 2d at 59.

The facts presented in J. W. are clearly distinguishable from those presented in R.S. In the former, the State failed to notify an unknown parent at an unknown address, while in the latter, the State failed to notify a known parent at a known address. In the latter situation, the failure to notify such a parent constituted a violation of the Act and of the minor’s and the parent’s due-process rights. More significant, however, is the supreme court’s holding that a petition for delinquency which fails to notify such a parent fails to invoke the circuit court’s jurisdiction. R.S., 104 Ill. 2d at 6.

The applicability of the R.S. holding to the case at bar is obvious. Although J.K.’s mother’s name and address were known and were stated on the petition, the record lacks any indication that she was ever served or otherwise formally notified of the pendency of the petition. Further, although J.K.’s mother may have had actual notice of the State’s petition, a conclusion we decline to make on the record before us, the fact remains that she never appeared at any of the proceedings. Thus, J.K.’s mother never waived formal service under the Act, nor did she submit to the circuit court’s jurisdiction. Cf. J.W., 87 Ill. 2d at 62.

The State argues that J.K. has waived the issue of notice to his mother by raising it for the first time on appeal. The State relies on In re J.P.J. (1985), 109 Ill. 2d 129, in which the supreme court held that a minor waived the issue of notice by failing to raise any question in the circuit court regarding the State’s diligence in attempting to locate and serve a noncustodial parent with an unknown address. (J.P.J., 109 Ill. 2d at 136-37.) The State contends “that J.P.J. should be read as authority to find that the failure to serve notice on a custodial parent may also be waived if not raised below.” We do not believe J.P.J. can be extended so far. It is an inescapable fact that J.K.’s mother lived at the same address as J.K. and his father; she is a known custodial parent at a known address. Thus, J.P.J. is inapplicable. Further, as we have previously noted, “State intervention *** which has a divisive impact on family relations requires strict adherence to the requirements of procedural due process.” (J.M., 170 Ill. App. 3d at 565.) The State concedes that Peggy K. is a custodial parent; thus, she is an indispensable party to a delinquency proceeding concerning her son, J.K. (See J.W., 87 Ill. 2d at 59.) The State offers no excuse for its failure to properly notify her of the pendency of these proceedings, and under the circumstances presented here, we have no choice but to reverse the circuit court’s orders for lack of jurisdiction. In view of this holding, we need not address J.K.’s additional contentions on appeal.

Accordingly, the judgment of the circuit court of Kane County is reversed.

Reversed.

UNVERZAGT, P.J., and REINHARD, J., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY AGRIESTI, Defendant-Appellant.
    Second District
    No. 2—88—1190
    Opinion filed December 1, 1989.

      Carl M. Walsh, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Robert J. Huguelet, Jr., of Thomás F. Courtney & Associates, of Palos Heights (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Following a stipulated bench trial, defendant, Anthony Agriesti, was convicted of conspiracy (gambling) (Ill. Rev. Stat. 1987, ch. 38, pars. 8—2, 28—1(a)(3)), sentenced to two years’ conditional discharge, and fined $1,000 and costs. On appeal, defendant contends that the classification of conspiracy (gambling) as a Class 3 felony, when gambling itself is only a Class A misdemeanor, violates the constitutional requirements of due process and proportionality of punishment. We affirm.

Defendant was charged in a two-count indictment with gambling and conspiracy (gambling). Prior to trial, the State nol-prossed the gambling charge, and defendant went to trial on stipulated evidence. The stipulated evidence established that defendant owned certain slot machines which he installed in the Addison VFW post. VFW members had access to the machines for gambling. Walter Moeller, quartermaster of the VFW post, had a key to the machines and was in charge of collecting the money from the machines. Defendant would perform any needed repairs to the machines, and he would come to the VFW post every Friday to collect the proceeds of the machines. Defendant would divide the proceeds: half for defendant, half for the VFW bar. Defendant was convicted of conspiracy (gambling) and sentenced to two years’ conditional discharge and fined $1,000 and costs.

On appeal, defendant first contends that the classification of conspiracy (gambling) as a Class 3 felony violates the due-process clause of the Illinois Constitution (Ill. Const. 1970, art. I, §2). Defendant points out that the constitutionality of the sentencing scheme at issue here has been challenged before. In People v. Roberts (1980), 83 Ill. App. 3d 311, the appellate court determined that the classification of conspiracy (gambling) as a Class 3 felony withstood an equal protection challenge. Here, defendant challenges the classification on due-process grounds and asserts that Roberts is not dispositive.

Defendant has not presented a reasoned analysis in support of his claim that the sentencing scheme violates due process. However, defendant has cited certain cases which do present reasoned analyses of due-process challenges to the classification of other types of offenses. Specifically, defendant cites People v. Bradley (1980), 79 Ill. 2d 410 (possession of a controlled substance), and People v. Wagner (1982), 89 Ill. 2d 308 (delivery of a substance represented to be a controlled substance). In light of defendant’s citation to these cases, we will assume that defendant accepts the due-process analyses set forth in those cases. Although defendant’s argument suggests that the standards may differ, in analyzing a possible due-process violation, the standard of review is identical to that used for equal protection. (People v. R.G. (1989), 131 Ill. 2d 328, 362.) The equal protection test the appellate court applied in Roberts is whether the legislative classification is rationally designed to further a legitimate State purpose. The due-process test the supreme court applied in Bradley and Wag ner is whether the statute is reasonably designed to remedy an evil which the legislature has determined to be a threat to the public. Therefore, as the State pointed out in its brief, the Roberts equal protection analysis and reasoning are, in fact, relevant to the due-process challenge presented here.

In Roberts, the court, relying heavily on the committee comments to the conspiracy statute (Ill. Ann. Stat., ch. 38, par. 8—2, Committee Comments, at 472-75 (Smith-Hurd 1989)), determined that the goal of the conspiracy statute is to prohibit agreement to do certain acts as evils in and of themselves, distinct from the offenses which are the objects of those agreements. The court concluded that the legislative classification is rationally designed to further that State goal because prosecuting conspiracies has a preventative aspect: that is, the discouragement of the more dangerous criminal activity of several persons by punishing the preliminary agreement to engage in such activity. Roberts, 83 Ill. App. 3d at 319.

We agree with Roberts that the legislature has identified an evil (group criminal activity) which it has determined to be a threat to the public, and, in light of the fact that group criminal activity is deemed more dangerous than solo activity, the enhanced punishment for conspiracy is rationally designed to remedy that evil.

Defendant also argues that the classification is fatally flawed because if defendant had been charged with both gambling and conspiracy (gambling), and he had been convicted of both offenses, the inchoate offense would have merged into the principal offense of gambling and defendant would have been subject to only a Class A misdemeanor conviction. Defendant cites section 8—5 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1987, ch. 38, par. 8—5), which prohibits convictions of both the inchoate and the principal offense.

Initially, we note that defendant was not convicted of both conspiracy and gambling; therefore, the point is moot. Furthermore, defendant’s conclusion that section 8—5 provides that the inchoate offense will merge into the principal offense is incorrect.

The crime of conspiracy is separate and distinct from the crimes committed pursuant to it. (People v. Bolla (1983), 114 Ill. App. 3d 442, 448.) Section 8—5 of the Criminal Code provides that no person shall be convicted of both the inchoate and the principal offense; however, the committee comments to this section state that the statute “is intended to limit conviction and punishment to either the inchoate or the principal offense (where the principal offense is accomplished).” (Emphasis added.) (Ill. Ann. Stat., ch. 38, par. 8—5, Committee Comments, at 584 (Smith-Hurd 1989).) Although both offenses may be prosecuted in the same trial, if a guilty verdict is entered on both counts, a judgment of conviction and sentence shall be entered on only one offense. (Ill. Ann. Stat., ch. 38, par. 8—5, Committee Comments, at 584-85 (Smith-Hurd 1989).) Nothing in the statute, or the committee comments, suggests that, where a defendant is found guilty of both the inchoate and the principal offense, the court must enter judgment of conviction on the principal offense and dismiss the inchoate charge. In fact, the court has the discretion to enter judgment on either verdict. Common sense dictates that judgment would typically be entered on the more serious offense. See People v. Jackson (1986), 145 Ill. App. 3d 626, 647 (defendant convicted of murder (Class X felony) and conspiracy (murder) (Class 2 felony); conspiracy conviction vacated).

Defendant also suggests that the classification of conspiracy (gambling) as a Class 3 felony violates the constitutional requirement of proportionality of punishment (Ill. Const. 1970, art. I, §11). Defendant’s entire argument on this issue is premised on his belief that conspiracy (gambling) is a lesser-included offense of gambling. We disagree.

A lesser-included offense is an offense which contains some but not all of the elements of the greater offense and which contains no elements not included in the greater. (People v. Pumphrey (1983), 115 Ill. App. 3d 1031, 1033.) In count I of the indictment against defendant, which was later nol-prossed, defendant was charged with gambling in violation of section 28—1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 28—1(a)(3)). This section provides that a person commits gambling when he operates, keeps, owns, uses, purchases, exhibits, rents, sells, bargains for the sale or lease of, manufactures or distributes any gambling device. Section 8—2 of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 8—2) provides that a person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense and an act in furtherance of such agreement is committed. Clearly, therefore, the crime of conspiracy includes elements of intent and agreement with another, and these elements are not part of the offense of gambling under this subparagraph. Because the offense of conspiracy (gambling) contains elements not included in gambling, it is not a lesser-included offense of gambling.

Section 11 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §11) provides that all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. The constitutional command that penalties be proportioned to the nature of the offense would justify interference with the legislative judgment only if the punishment was cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. (People v. Gonzales (1962), 25 Ill. 2d 235, 240.) Here defendant was sentenced to conditional discharge. Pursuant to section 5—6—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—2), the maximum sentence of conditional discharge for a misdemeanor is one year, and the maximum sentence of conditional discharge for a Class 3 felony is 30 months. We do not consider the penalty for conspiracy (gambling) to be so disproportionate to that of gambling that it could be considered cruel, degrading or shocking to the moral sense of the community. Because the legislature has determined that group criminal activity is a more serious evil, the application of a more stringent penalty to combat that evil is reasonable.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

DUNN and WOODWARD, JJ., concur.