author: JUSTICE LaPORTA

text:
    RICHARD GOLDBERG, Petitioner-Appellee, v. JUDITH DAVIS, Respondent-Appellant.
    First District (6th Division)
    No. 1—90—0392
    Opinion filed June 14, 1991.
    Rehearing denied July 12, 1991.

      Coffield, Ungaretti, Harris & Slavin, of Chicago (Daniel J. Pope, J. Timothy Eaton, and William D. Shaver, of counsel), for appellant.
    Sandra G. Nye & Associates, of Chicago (Sandra G. Nye and Randy Wayne Franklin, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 307 (134 Ill. 2d R. 307) brought by respondent, Judith Davis, M.D., from a circuit court order directing Davis to produce the past psychiatric records of C.B., her patient, in response to the subpoena duces tecum issued by the Illinois Department of Professional Regulation. Both petitioner Goldberg and respondent Davis are physicians licensed to practice psychiatry in this State and are currently practicing in the Chicago area.

The Illinois Department of Professional Regulation filed a complaint pursuant to the provisions of the Illinois Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400-22) on July 25, 1988, in a disciplinary proceeding seeking to revoke or suspend the license of petitioner, Richard Goldberg, as a physician, alleging improper treatment of his former patient, and that he engaged in unethical and improper physical acts with her in October 1987 while treating her as a patient for depression and an eating disorder known as bulimia.

Specifically, the statutory grounds on which the complaint is based are alleged violations of section 22 of the Illinois Medical Practice Act, which provides:

“A. The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license *** of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon any of the following grounds:
* * *
4. Gross negligence in practice under this Act;
5. Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public; [and]
* * *
20. Immoral conduct in the commission of any act related to the licensee’s practice.” Ill. Rev. Stat. 1987, ch. 111, pars. 4400 — 22(AX4), (A)(5), (AX20).

The patient testified at the December 7, 1988, hearing before the administrative hearing officer. At the request of the Department, the respondent, Davis, testified as C.B.’s present psychiatrist.

Thereafter, on March 27, 1989, petitioner Goldberg filed in the circuit court of Cook County “an action to compel production of relevant papers in an administrative proceeding” seeking records in Davis’ possession concerning treatment of the patient by other therapists which occurred from 4 to 10 years prior to her treatment by Goldberg. The petition alleged that the patient had waived the privilege to refuse disclosure by her testimony and by allowing Davis to testify concerning the records.

At the same time, Goldberg sought to compel the Department to issue a subpoena to Davis for the records, and on June 29, 1989, the hearing officer issued a subpoena for the records in Davis’ possession of the patient’s treatment prior to her treatment by Goldberg. Davis’ motion to quash the subpoena based on privilege was heard and denied by a new hearing officer on October 13, 1989. The hearing officer found that Davis’ testimony and the patient’s testimony constituted a waiver of the patient’s privilege of nondisclosure but held that there was a question of the relevancy of the records which should be addressed by the circuit court.

On November 17, 1989, Goldberg amended the petition pending in the circuit court to “an application for order compelling production of records in an administrative proceeding” seeking to compel Davis to comply with the outstanding subpoena. Davis made the same response as she had argued before the hearing officer.

On January 9, 1990, the trial judge granted Goldberg’s application for an order compelling production of records in an administrative proceeding and ordered Davis to produce the records on February 7 for an in camera inspection as to relevancy only. On February 6, Davis filed a notice of interlocutory appeal of the January 5 order of the trial judge seeking its reversal and an order of this court denying Goldberg’s petition and quashing the subpoena or, in the alternative, for a reversal with remand for further proceedings consistent with its opinion.

Respondent Davis raises three issues on appeal: (1) whether the psychiatric records ordered to be produced are privileged under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Act) (Ill. Rev. Stat. 1987, ch. 911/2, pars. 801 through 817); (2) whether there is an exception in the Act which can be invoked to force respondent to disclose prior psychiatric records of other treatment providers; and (3) whether respondent has waived the privilege to refuse disclosure by her testimony at the administrative hearing. Goldberg adds a fourth issue: whether the patient has waived her privilege to refuse disclosure of her psychiatric records by bringing an administrative complaint and by her testimony at the administrative hearing.

Petitioner Goldberg contends on appeal that the records sought are no longer privileged and must be disclosed since Davis has no statutory privilege to refuse disclosure and the Illinois Administrative Code, as well as the Mental Health and Developmental Disabilities Confidentiality Act, requires their disclosure and production where the propriety of his treatment of the patient is at issue. Petitioner also argues on appeal that the patient waived any privilege she may have had by bringing her complaint against Goldberg and by testifying, that Davis could and did waive any privilege she may have had, and that Davis relied on the past records as a basis for her testimony and opinion.

C.B. is currently and, since approximately December 1987, has been under psychiatric treatment as a patient of respondent Davis. From approximately June to October of 1987, C.B. was a psychiatric patient of petitioner Goldberg for treatment of depression and eating disorder problems.

On June 25, 1988, the Department filed a complaint against Goldberg seeking to revoke or suspend his license as a physician based on allegations of improper treatment to his patient C.B. and on the specific allegation that petitioner engaged in a sexual relationship with her while she was his patient.

On December 5, 1988, the administrative hearing on the complaint commenced before the hearing officer for the Medical Disciplinary Board and at the time of this appeal was ongoing. The patient testified about her treatment while Goldberg’s patient and about sexual incidents which occurred during her treatment as his patient.

The Department called respondent Davis as a witness at the hearing. Davis stated that she did not agree to testify as an expert in eating disorders but that she did agree to testify for the purpose of supporting her patient. She stated she was not compensated for her testimony nor was she there in response to subpoena. Davis testified in general terms about her diagnosis of the patient, her opinion concerning the propriety of Goldberg’s treatment and standards of conduct of a physician to his patient. During her cross-examination Davis referred to records in her possession of the patient’s psychiatric treatment prior to her treatment by petitioner Goldberg. The record discloses no reference on direct examination as to the specifics of patient’s treatment prior to Dr. Goldberg’s services.

Following this hearing petitioner sought to obtain copies of the records of patient’s prior treatment by filing in the circuit court its petition for production of the records, later amended, and subsequently ordered produced by the circuit judge on January 9, 1990, while simultaneously petitioning for and obtaining the issuance of a subpoena duces tecum, by the administrative hearing officer on June 29, 1989. Davis refused to comply with the subpoena and appealed the interlocutory order of the trial judge ordering her to comply.

Before ordering Davis to produce the prior records for an in camera inspection, the trial judge stated that he had reviewed Goldberg’s application to compel production, Davis’ response, Goldberg’s reply, Davis’ motion to quash subpoena, Goldberg’s answer thereto and Davis’ reply, and copies of various transcripts. He heard arguments of the respective parties. The court then stated:

“The patient testified and Dr. Davis testified, and I believe Dr. Davis alluded to the fact that [she] had referred to her past records. *** Now in all fairness and to see that we have due process, if Dr. Davis relied on this in formulating her opinion *** [i]f Dr. Davis relied on those records in all fairness to Dr. Goldberg, he should have those documents to review. The privileged [sic\ was waived by that testimony. The motion to quash will be, the subpoena duces tecum will be denied. I believe the second hearing officer said that you should produce them *** I will affirm him. In all fairness Dr. Goldberg is entitled to that. There is a waiver of the privilege.”

The trial judge then found there was still a question on the issue of relevance. He again reiterated:

“Davis used them to formulate an opinion and Goldberg has a right to see the basis of that opinion.”

He then ordered the records produced for the court’s in camera inspection.

We first consider the relevant statutory provisions of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987, ch. 9IV2, pars. 801 through 817) as they address the issues of confidentiality, privilege and disclosure. Respondent refers us to sections 10(a), 10(a)(1), 3, and 9 as controlling, while petitioner additionally cites sections 4 and 5. The Act provides in pertinent part:

“10. (a) Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.
(1) 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, if and only to the extent the court in which the proceedings have been brought, or, in the case of an administrative proceeding, the court to which an appeal or other action for review of an administrative determination may be taken, finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm. Except in a criminal proceeding in which the recipient, who is accused in that proceeding, raises the defense of insanity, no record or communication between a therapist and a recipient shall be deemed relevant for purposes of this subsection, except the fact of treatment, the cost of services and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes in the trial court a compelling need for its production.” Ill. Rev. Stat. 1987, ch. 91 xlz, par. 810(a)(1).
“3. (a) All records and communications shall be confidential and shall not be disclosed except as provided by this Act.
(b) A therapist is not required to but may, to the extent he determines it necessary and appropriate, keep personal notes regarding a recipient. Such personal notes are the work product and personal property of the therapist and shall not be subject to discovery in any judicial, administrative or legislative proceeding or any proceeding preliminary thereto.” Ill. Rev. Stat. 1987, ch. 911/2, par. 803.
“9. In the course of providing services and after the conclusion of the provision of services, a therapist may disclose a record or communication without consent to:
***
(2) persons conducting a peer review of the services being provided[.]
* * *
Information may be disclosed under this Section only to the extent that knowledge of the record or communication is essential to the purpose for which disclosure is made and only after the recipient is informed that such disclosure may be made. A person to whom disclosure is made under this Section shall not redisclose any information except as provided in this Act.” Ill. Rev. Stat. 1987, ch. 911/2, par. 809.
“4. (a) The following persons or entities shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof:
***
(2) the recipient if he is 12 years of age or older.” Ill. Rev. Stat. 1987, ch. 91V2, par. 804.
“5. (a) Except as provided in Sections 6 through 12.2 of this Act, records and communications may be disclosed only with the written consent of:
* * *
(3) the recipient if he is 18 years or older or his guardian if he has been adjudicated to be under legal disability.
(b) Every consent form shall be in writing and shall specify the following:
(1) the person or agency to whom disclosure is to be made;
(2) the purpose for which disclosure is to be made;
(3) the nature of the information to be disclosed;
(4) the right to inspect and copy the information to be disclosed;
(5) the consequences of a refusal to consent, if any; and
(6) the calendar date on which the consent expires, provided that if no calendar date is stated, information may be released only on the day the consent form is received by the therapist; and
(7) the right to revoke the consent at any time.
The consent form shall be signed by the person entitled to give consent and the signature shall be witnessed by a person who can attest to the identity of the person so entitled. A copy of the consent and a notation as to any action taken thereon shall be entered in the recipient’s record. Any revocation of consent shall be in writing, signed by the person who gave the consent and the signature shall be witnessed by a person who can attest to the identity of the person so entitled. No written revocation of consent shall be effective to prevent disclosure of records and communications until it is received by the person otherwise authorized to disclose records and communications.
(c) Only information relevant to the purpose for which disclosure is sought may be disclosed. Blanket consent to the disclosure of unspecified information shall not be valid. Advance consent may be valid only if the nature of the information to be disclosed is specified in detail and the duration of the consent is indicated. Consent may be revoked in writing at any time; any such revocation shall have no effect on disclosures made prior thereto;
(d) No person or agency to whom any information is disclosed under this Section may redisclose such information unless the person who consented to the disclosure specifically consents to such redisclosure.” Ill. Rev. Stat. 1987, ch. 91V2, par. 805.

The patient C.B. specifically has not consented to the disclosure of her prior records in the pending disciplinary proceeding and Davis, on the patient’s behalf, has refused to produce them in response to the subpoena issued by the hearing officer and now appeals the order of the circuit court ordering her to produce the prior records for an in camera inspection to determine their relevancy to the disciplinary proceeding.

Goldberg argued before the trial judge, and now on appeal, that both the patient and Davis have waived the privilege of confidentiality in their testimony before the administrative hearing officer. Goldberg contends that in challenging the propriety of his conduct and the treatment rendered to C.B., the patient and Davis have placed the prior treatment by therapists earlier in time to Goldberg before the Board. Goldberg further contends that since the patient has accused him of improper conduct, her credibility is at issue and the prior records “could be” relevant to that determination. Goldberg further contends that since Davis testified to the patient’s mental condition and since her conclusions may have been based in part on the prior records, they are germane to a determination of the validity of her conclusions and testimony.

Initially we consider whether the psychiatric records ordered to be produced are privileged under the Act. On cross-examination Davis testified she had requested and obtained the patient’s records from the Menninger Foundation in Topeka, Kansas, for 1979-81, from Dr. Derrick Miller for 1977-79, and from the Inpatient Eating Disorders Program at the University of Wisconsin for 1983.

The covering letter transmitting the records from Menninger to Davis was stamped with the following language: “This information has been disclosed to you and you alone from medical records whose confidentiality is protected by Federal law and is being released on the basis that it not be redisclosed to anyone, including the patient. The Menninger Foundation can take no responsibility for any legal liability resulting from such disclosure.”

Goldberg attacks as nonsense and as a misstatement of the law Menninger’s condition that its records not be redisclosed because re-disclosure is a violation of Federal law; he contends there is no Federal mental health confidentiality law which applies here. He argues that if in fact the patient herself wishes to see the records, disclosure to her is required. Ill. Rev. Stat. 1987, ch. dlVz, par. 804.

Here the patient consented to Menninger’s disclosure of her records to Davis. The records were forwarded conditioned on the prohibition against redisclosure. Section 5(d) of the Act provides that where records are disclosed to a therapist with the patient’s consent, “[n]o person *** to whom any information is disclosed *** may redisclose such information unless the person who consented to the disclosure specifically consents to such redisclosure.” (Ill. Rev. Stat. 1987, ch. 911/2, par. 805(d).) The record clearly shows that C.B. has not consented to any redisclosure by Davis.

Section 5 of the Act also provides that patient records of and communications with a therapist may be disclosed only with the consent of the patient. (Ill. Rev. Stat. 1987, ch. 91x/2, par. 805(a)(3).) A patient, and a therapist acting on behalf of and in the interest of the patient, has the privilege to refuse to disclose and to prevent disclosure of the patient’s record or communications (Ill. Rev. Stat. 1987, ch. 91x/2, par. 810(a)), and all records and communications shall be confidential and shall not be disclosed unless they come within one of the exceptions of the Act (Ill. Rev. Stat. 1987, ch. 91x/2, par. 803).

The parties agree that a patient’s psychiatric records and communications to a therapist ordinarily are privileged communications unless or until the patient expressly or impliedly has waived the privilege of nondisclosure. Goldberg contends that patient consent is irrelevant to disclosure under section 10 in a judicial, administrative or legislative proceeding and that here the privilege has been waived by the patient’s bringing the administrative complaint and by testifying at the administrative hearing. We must consider, therefore, whether C.B.’s consent is irrelevant here or whether it is waived. In response to the hearing officer’s request and Goldberg’s demand, C.B. has specifically refused to consent to disclosure of her past psychiatric records and communications in the administrative hearing, and therefore, the privilege is not expressly waived.

Goldberg argues that C.B. has impliedly waived the privilege by publicizing her condition, history and treatment in the administrative proceeding by bringing a complaint, by her disclosures to Department personnel in bringing the complaint, and by her testimony at the administrative hearing. Goldberg cites four cases in support of his contention: Novak v. Rathnam (1985), 106 Ill. 2d 478, 478 N.E.2d 1334; In re Pebsworth (7th Cir. 1983), 705 F.2d 261; People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592; and Gottemoller v. Gottemoller (1976), 37 Ill. App. 3d 689, 346 N.E.2d 393. We find all four cases are factually distinguishable from the question before us.

In Novak v. Rathnam, 14 months after patient Endicott’s discharge from a mental health center upon the approval of a psychiatrist and a psychologist, the patient killed plaintiff’s daughter in Florida. The patient raised an insanity defense and called three therapists and others to testify in support of his defense. The patient was found not guilty by reason of insanity and confined to a State hospital. The victim’s family filed a wrongful death action in Illinois against the two therapists who, when called to testify, claimed the therapist/patient privilege. The supreme court held that the waiver as to medical information in the same records as in the prior proceeding will be regarded as a waiver of the privilege in a subsequent proceeding.

In Gottemoller, a divorce action, the wife’s voluntary written direction to her psychiatrist to make her psychiatric records available to husband’s counsel removed the shield of confidentiality and rendered those records admissible on the issue of child custody.

In Newbury, statements made by a defendant to a psychiatrist in a court-ordered examination will be protected from disclosure under the psychiatrist-patient privilege on the issue of his guilt. But where defendant called his privately retained psychiatrist as a witness and elicited inculpatory statements made by defendant to him, the defendant waived the privilege. The court found the statements were related to the matter being tried.

In Pebsworth, where the patient assented to insurance reimbursement claims procedures, he waived any privilege as to specific kinds of billing and administrative records; such records were admissible in an investigation of possible criminal misconduct by a psychotherapist for fraudulent claims for reimbursement from medical insurance companies.

In each case the treatment records were of current treatments and communications and had a direct bearing on the matter being tried. Unlike our pending appeal, the records did not relate to communications made to other therapists remote in time from the events complained of.

Davis responds that the patient has not introduced her mental condition as an element of her claim against Goldberg nor did she testify “at length concerning her psychiatric history and years of treatment” as Goldberg has argued here. (Bland v. Department of Chil dren & Family Services (1986), 141 Ill. App. 3d 818, 826-27, 490 N.E.2d 1327.) Davis points out that C.B.’s testimony was only a brief, generalized recital of the fact of her past contacts with psychiatric therapists without a recital of the substantive nature of these treatments. Her specific testimony concerned her treatment by Goldberg and the sexual incidents which are alleged to have occurred during that treatment. Davis argues that C.B. therefore did not introduce her mental condition or well-being as an element of the claim. Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, 520 N.E.2d 881; Tylitzki v. Triple X Service, Inc. (1970), 126 Ill. App. 2d 144, 261 N.E.2d 533; Webb v. Quincy City Lines, Inc. (1966), 73 Ill. App. 2d 405, 219 N.E.2d 165; Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 392 N.E.2d 929.

Davis argues that the only aspect of her treatment placed in issue by the patient is the sexual relationship which is alleged to have occurred between Goldberg and the patient during his treatment of her. However, that limited disclosure does not in any way open the door to disclosure of records of all prior mental health treatment rendered to the patient by any and all therapists. (Laurent v. Brelji, 74 Ill. App. 3d at 219.) Where the complaint places an aspect of the services received at issue, as opposed to the patient’s mental condition, only the treatment complained of requires disclosure. (Laurent v. Brelji, 74 Ill. App. 3d at 219.) C.B.’s testimony at the administrative hearing did not constitute an implied waiver of her patient privilege of nondisclosure.

Davis next contends that because only the patient can waive the privilege of nondisclosure (Novak v. Rathnam, 106 Ill. 2d at 482 (where waiver of patient privilege in former criminal prosecution constitutes waiver in subsequent proceeding); Gottemoller v. Gottemoller, 37 Ill. App. 3d at 695 (where wife voluntarily consented to release of records to opposing counsel); People v. Newbury, 53 Ill. 2d at 234 (where defendant called psychiatrist and elicits inculpatory statements he has waived privilege); People v. Givans (1967), 83 Ill. App. 2d 423, 228 N.E.2d 123 (where defense of insanity is raised); People ex rel. Jones v. Jones (1976), 39 Ill. App. 3d 821, 826-27, 350 N.E.2d 826 (where parties signed consent forms to release information to guardian)) and because the patient here has refused to consent to disclosure, the therapist is bound by her election (Ill. Rev. Stat. 1987, ch. 911/2, par. 805(d)) and may not waive the privilege in any manner, by the therapist’s express willingness to do so or by her testimony at this administrative hearing. The privilege of confidentiality is the patient’s privilege and is not a privilege of confidentiality accruing to the therapist. Bland v. Department of Children & Family Services, 141 Ill. App. 3d at 826-27.

Davis contends, therefore, that as C.B.’s therapist she is bound to nondisclosure. She cites section 10(a), which enunciates the privilege to refuse and to prevent disclosure as the privilege of the patient and of the therapist on the patient’s behalf (Ill. Rev. Stat. 1987, ch. 911/2, par. 810(a)) and argues that this statutory assurance of confidentiality “encourages complete candor between patient and therapist” and provides the motivation for patients in need of treatment to seek it. (Novak v. Rathnam, 106 Ill. 2d at 483.) Section 3 reiterates the confidentiality of the records with disclosure only upon patient consent or a disclosure excepted by the Act. (Ill. Rev. Stat. 1987, ch. 9IV2, par. 803.) Where the records are disclosed upon patient consent by one therapist to another, the receiving therapist is prohibited from redisclosing the information received. Ill. Rev. Stat. 1987, ch. 9IV2, par. 809.

Goldberg contends, however, that Davis has no statutory privilege to refuse to disclose the requested records because of the “patient-litigant” exception to confidentiality found in section 10(aXl) in those circumstances where “the recipient introduces his mental condition or any aspect of his services received for such condition” in an administrative proceeding. (Ill. Rev. Stat. 1987, ch. 9IV2, par. 810(aXl).) Goldberg argues that C.B. has claimed that his services in treating her were inappropriate and improper given her mental condition. The primary thrust of Goldberg’s argument is that once the prior records became part of Davis’ record on the patient, they are as subject to discovery as are her own records. Goldberg has not requested that Davis produce her records but only that she produce records of C.B.’s prior treatment by other therapists. He contends the patient placed her mental state and Goldberg’s treatment of her condition in issue and therefore the prior records are relevant and their privileged status is lost. We have rejected this argument.

Goldberg also contends that clinical conclusions reached by Davis were based at least in part on the prior records and by her testimony Davis has waived her privilege under the statute which provides that the therapist may not disclose the patient’s communications to her, nor any records, personal notes or diagnostic conclusions, without patient consent and such therapist records are confidential and are not subject to discovery in any proceeding. Ill. Rev. Stat. 1987, ch. 9IV2, par. 803.

An expert witness may give opinion testimony on the basis of reliable facts not in evidence without disclosing those facts, which may include, among others, firsthand observation, experience, reports and opinions from other medical providers, so long as they are of a type reasonably relied on by experts in the field. (Hatfield v. Sandoz-Wander, Inc. (1984), 124 Ill. App. 3d 780, 787, 464 N.E.2d 1105; Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140.) Where the expert’s opinion is based on the witness’ own knowledge and experience, the testimony is admissible. Gordon v. Chicago Transit Authority (1984), 128 Ill. App. 3d 493, 503, 470 N.E.2d 1163.

Davis was asked to summarize the patient’s history of treatment before she became Goldberg’s patient as Davis knew it. She testified that she had requested prior records with the patient’s consent, had received some of them, and her testimony was restricted to the fact of the prior treatment but she was not asked nor did she testify that the prior records formed the basis of her own diagnosis or opinion nor were they the basis for any part of the treatment she rendered. She related her understanding of the relationship between Goldberg and C.B. as related to her by the patient. She testified that she was familiar with the standards of responsibility of psychiatrist to patient in the Chicago area in 1987-88.

We conclude that by her testimony Davis made no responses to questions which in any way expanded the administrative inquiry beyond its defined limits of Goldberg’s treatment of his bulimic patient and the alleged sexual improprieties, and accordingly, we find that clearly she has not waived the therapist-patient privilege of her patient.

We next consider whether there is an exception in the Act which can be invoked to force respondent to disclose psychiatric records of other prior treatment providers. Goldberg argues that in challenging the propriety of his treatment rendered to the patient, both Davis and the patient have placed C.B.’s mental condition and his services to her at issue, and accordingly, her treatment records and communications to therapists who treated her prior to 1987 are relevant, probative and admissible in the pending administrative hearing challenging his right to retain his license to practice medicine. (Ill. Rev. Stat. 1987, ch. 91V2, par. 810(a)(1).) Section 9 of the Act provides that a therapist may disclose a record or communication without consent to persons conducting a peer review of the services being provided. Ill. Rev. Stat. 1987, ch. 9IV2, par. 809.

However, section 10 limits the disclosure without consent in a noncriminal proceeding by the following restriction: “[N]o record or communication between a therapist and a recipient shall be deemed relevant for purposes of this subsection, except the fact of treatment, the cost of services and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes *** a compelling need for its production.” (Ill. Rev. Stat. 1987, ch. 91V2, par. 810(a)(1).) Records and communications may be disclosed in a peer review of the therapist only to the extent that knowledge of the record or communication is essential to the purpose for which disclosure is made and only after notice to the patient is given. (Ill. Rev. Stat. 1987, ch. 9IV2, par. 803.) We are convinced that section 3 of the Act refers to disclosure of records and communications made by the patient to the therapist who is the subject of the peer review inquiry and not to other subsequent or prior treating therapists, and therefore, that section has no application to the facts of this appeal.

Section 10(a)(1) of the Act requires that such nonconsented disclosures may be ordered only if the following circumstances are present: (1) that the patient has introduced her mental condition or services received in treatment as an element of her claim; (2) if the court finds after an in camera inspection of testimony or other evidence that the material to be disclosed is relevant and probative to the inquiry and is otherwise not prejudicial or inflammatory; (3) that other evidence is otherwise unsatisfactory to establish acts sought to be established by the subject disclosure; (4) that disclosure is more important to the interests of justice than protection of the patient-therapist relationship or the patient or others who might be harmed by the disclosure; and (5) that petitioner seeking disclosure has clearly established a compelling need for production. Ill. Rev. Stat. 1987, ch. 911/2, par. 810(aXl).

We find that petitioner has failed to establish that any of the required statutory criteria are present in this case.

The patient is diagnosed as suffering from depression and bulimia. She has testified that this is so. Goldberg testified that he treated her for depression and bulimia. Davis is presently treating her for the same conditions. To place one’s mental state in issue requires a difference of opinion as to the diagnosis of the mental condition being treated. Here there is no difference of opinion; they all agree on depression and bulimia.

The second requirement, that the court has made an in camera inspection of testimony or other evidence and finds that the material to be disclosed is relevant and probative to the inquiry and is not otherwise prejudicial or inflammatory, requires a consideration of the matter pending before the administrative hearing officer. Goldberg is charged with a violation of accepted standards of treatment for bulimia in 1987 in the Chicago area. He is also charged with personal improprieties against his patient. No challenge has been made to his diagnosis of her condition as bulimia and depression. Records which detail the patient’s diagnoses and treatment from 1977 to 1983, a period of time four or more years prior to Goldberg’s treatment, are so remote as to be irrelevant and of no probative value in the pending administrative hearing, and under Laurent v. Brelji clearly would be prejudicial to the patient.

The third requirement, “that other evidence is unsatisfactory to establish acts sought to be established by the subject disclosure” is not met here, nor is the fifth requirement “that petitioner seeking disclosure has clearly established a compelling need for production.” Here the complaint charges Goldberg with treatment irregularities in the form of home visitation and watching patient’s behavior during a bulimic episode. He is also charged with personal and sexual improprieties with his patient. The treatment irregularities, alleged by the Department, i.e., watching patient eat and then vomit, feeding her, and home visitation, are procedures easily measured against the accepted and standard treatments by other therapists for bulimia. The prior records would not offer enlightenment as to whether such treatment is appropriate nor would they shed any light on the propriety of the alleged sexual conduct.

The requirement of whether the disclosure is more important to the interests of justice than the protection of the patient-therapist relationship — the fourth requirement — also has not been met. Counsel for Goldberg, in declining the production of the prior records during Davis’ testimony, specifically stated that she did not want to see them because producing the records was not in the patient’s interest.

Twice during questioning of Davis, Goldberg’s attorney specifically stated she did not wish to see the prior records. The transcript of that testimony disclosed the following interrogation of Goldberg’s counsel on cross-examination:

“Q. Has [C.] ever told you anything about her feelings about eating in the presence of other people?
A. Yes. She has told me about that.
Q. Would you describe that, that [sic] please?
A. She sometimes has difficulty eating in the presence of other people.
Q. Do you know when those sometimes are?
A. We haven’t talked about this for a long time, and I don’t remember the details.
Q. Is there anything that would refresh your recollection with respect to that?
[Department’s Counsel]: Objection, I will object now to the line of her questioning, which is totally off the issues.
[Goldberg’s Counsel]: I am sorry, I can’t hear you. Mr. [Department’s Counsel],
[Department’s Counsel]: The questioning of this witness is to her current therapeutic relationship with [C.B.]. It’s totally outside the scope of the issues in this case.
What counsel is attempting to do is to get to patient records, which counsel knows full well are privileged. Clearly, those patient records would refresh someone’s recollection, but clearly those are privileged; and clearly the question is beyond the scope of the issues in this case.
[Goldberg’s Counsel]: I will clear up one aspect of that right now. I have no wish to see the records. If the doctor wishes to refer to them, she is welcome to do so without disclosing them to me.
[Hearing Officer]: That being said, the objection is overruled.
[Goldberg’s Counsel]: Doctor, do you have your records with you?
A. No.
Q. Would you like to refer to them?
A. I don’t have them with me.
Later, on redirect examination and at the conclusion of all her testimony, Davis was asked:
[Department’s Counsel]: Doctor, based on your treatment of [C.] and your examination of treatment records that you had at your disposal, did [C.] exaggerate or distort any of her past treatments where you had the treatment records at your disposal?
[Goldberg’s Counsel]: Inasmuch as, Mr. Hearing Officer, as we don’t have those records at our disposal, and I furthermore do not wish to see them because I don’t think that’s in the patient’s best interest, I don’t believe that question should be permitted.
[Hearing Officer]: Sustained.
[Department’s Counsel]: Mr. Hearing Officer, the question is in response to a question of this witness on cross, whether or not this witness believed that [C.] exaggerated or distorted the treatment she received from Dr. Goldberg.
[Goldberg’s Counsel]: I don’t believe I asked that.
[Hearing Officer]: The ruling isn’t going to change.
[Department’s Counsel]: Fine, I have no further questions of this witness.
[Hearing Officer]: Any recross?
[Goldberg’s Counsel]: No, no questions. Thank you.”

The witness was then excused and her testimony was concluded.

Goldberg’s counsel twice disavowed any interest in the content of the prior records following Davis’ testimony that the records were in her possession and no further reference was made to them in the administrative hearing. Goldberg then made a demand that these records be produced because they may be relevant to the question of the patient’s credibility. We find that Goldberg’s subsequent argument before the trial court and now on appeal that the records are now relevant and probative to the inquiry into his treatment of the patient in 1987 and his alleged improprieties with her and must now be produced was expressly waived by Goldberg at the administrative hearing.

Goldberg supports his argument that the patient’s records may be relevant to her credibility by citing People v. Phipps (1981), 98 Ill. App. 3d 413, 424 N.E.2d 727, People v. Lindsey (1979), 73 Ill. App. 3d 436, 392 N.E.2d 278, People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031, and People v. Di Maso (1981), 100 Ill. App. 3d 338, 426 N.E.2d 972. In Phipps, the court found the privilege must give way to the right of confrontation and due process where the events complained of occurred while defendant was an employee at the Lincoln Mental Health Center and the Center’s records were ordered produced. In Lindsey, because of many inconsistencies in defendant’s testimony and his mental retardation, his records were ordered produced for a determination of his credibility and to assess his ability to observe, recall and relate events to which he testified. In Dace, where an accomplice witness was involuntarily committed to a mental hospital less than two years before the crime with which defendant was charged, the mental history of the witness was relevant to his credibility and the trial court was required to conduct an in camera hearing with counsel present to determine what information from the records was relevant or material to impeachment of the -witness.

In Di Maso, the court held that the State’s interest in the assault victim’s right to confidentiality of his Madden Mental Health records of his treatment at the center a few months prior to the assault must give way to the accused’s right to cross-examine in a felony prosecution where it is relevant to witness credibility based on alleged blackouts following episodes of drinking and drug abuse.

Davis cites People v. Walton (1982), 107 Ill. App. 3d 698, 701, 437 N.E.2d 1273, where the court found that witness identification of the accused revealed sufficient manifestations of reliability where he had ample opportunity to view the accused and his attention was focused on him at the time of the robbery and he provided an accurate description of the events and the offender. The Walton court held that disclosure of relevant portions of a witness’ mental health records to protect a defendant’s rights of due process and confrontation is not so broad a rule as to negate the necessity of establishing the pertinence of the witness’ history to the question of his or her credibility. (Walton, 107 Ill. App. 3d at 703.) The court found that defendant did not make a sufficient showing of relevance and refused to order disclosure.

Both Goldberg and Davis rely on the court’s analysis in Laurent v. Brelji in support of their opposite contentions on the issue of the privilege. That case dealt with civil service discharge proceedings against an employee at the Chester Mental Health Center for alleged instances of his harassment and abuse of a patient. The hearing officer issued a subpoena to produce the patient’s psychiatric records in the possession of the center’s superintendent for in camera inspection and possible disclosure of those documents found to have probative value. The physician-superintendent of the center asserted the general privilege against disclosure and argued that no statutory exception of section 10(aXl) applied.

The court held that on the record before it, the issues before the investigating body related directly to incidents which occurred during the patient’s hospitalization at the Center and that the patient had introduced an aspect of the services he received there during treatment for his mental condition, and accordingly, an exception to the privilege of nondisclosure applied. We find instructive the court’s analysis, which stated:

“The inquiry of whether given information is subject to disclosure does not end with the determination that it is relevant. Implicit in every testimonial privilege is the assumption that the privileged matter may indeed be highly probative of the issues in dispute. Despite any relevance, however, the promotion and protection of certain relationships is deemed to be of greater value than the unqualified disclosure of pertinent information incident to individual disputes.
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.” (Laurent v. Brelji, 74 Ill. App. 3d at 217.)

The court then stated its conclusion that, on the record before it, disclosure was required but stated that this ruling

“in no manner implies that a person, merely by presenting himself as a witness, must run the risk of having his entire mental history drug out and exposed before a public hearing for the ostensible purpose questioning his perceptive capabilities.” Laurent v. Brelji, 74 Ill. App. 3d at 219.

We conclude that that is exactly what is at issue here. The sole question before the hearing officer was whether Goldberg’s treatment of this patient was appropriate and within acceptable medical standards or whether his conduct was outside the limits of appropriate treatment so as to warrant suspension or revocation of his license to practice medicine. No inquiry into prior treatment remote in time would satisfy the requirement that Goldberg must show a compelling need for such disclosure nor its relevance to the inquiry before the Department as to the propriety of his actions or treatment.

Goldberg contends that the prior records are necessary to challenge the patient’s credibility and the validity of the charges against Goldberg. We reject Goldberg’s contention. Validity of the charges can be determined based on a recital of the questioned events, a determination by the hearing officer of the patient’s present credibility, based on current evidence and on application of these events to acceptable medical standards of treatment and behavior. The patient here has not raised her mental condition as an issue by appearing as a witness. She has testified to the fact of Goldberg’s treatment in a current time frame. Her credibility is not dependent on her entire prior mental history, and she is entitled to invoke the privilege of nondisclosure here. We uphold Davis’ refusal to produce the records.

For all of the foregoing reasons, we reverse the order of the trial court requiring production of the records of prior therapists in Davis’ possession for in camera inspection and for production in response to the administrative hearing officer’s subpoena.

Reversed.

RAKOWSKI, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    JAMES M. SMITH, Plaintiff-Appellant, v. AMERICAN MOTORS SALES CORPORATION, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—1119
    Opinion filed June 14, 1991.
    Karlin & Fleisher, of Chicago (David A. Novoselsky, Linda A. Bryceland, and Michael Leuer, of counsel), for appellant.

      Peterson, Ross, Schloerb & Seidel, of Chicago (Tracy C. Beggs and Mary F. Andreoni, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

In this products liability case, the principal question which we face is whether the injured plaintiff, James M. Smith (Smith), seeking recovery upon the theory of strict liability in tort, must establish that the risks inherent in driving a Jeep with his bare left foot extended outside of the passenger compartment did not constitute an open and obvious danger. We conclude that he failed to establish a material issue of fact as to whether there existed an unreasonably dangerous design defect of which defendant American Motors Sales Corporation (American Motors) needed to warn. Accordingly, we find no error in the trial court’s grant of summary judgment in favor of American Motors, and we therefore affirm the ruling.

On December 18, 1984, plaintiff filed a product liability suit against American Motors, the Jeep manufacturer, alleging that the car was not fit for its intended purposes. An amended complaint was subsequently filed joining the distributor Highland Park Motors as a defendant, which defendant was dismissed from the case after certifying American Motors as the Jeep’s manufacturer pursuant to the products liability provision of the Code of Civil Procedure. Ill. Rev. Stat. 1987, ch. 110, par. 2-621.

American Motors moved for summary judgment, claiming in its motion that the danger to Smith of putting his bare left foot outside the moving car was open and obvious, that there existed no unreasonably dangerous defects, and that the manufacturer had no duty to warn Smith of the inherent risks involved in his activity. Alternatively, American Motors argued that there was insufficient credible evidence of an unreasonably dangerous defect.

The undisputed facts before the trial court were that on the warm summer night of July 14, 1984, at 9 p.m., 26-year-old Smith was driving his American Motors CJ-7 Jeep at approximately 40 miles per hour southbound in the left lane of Milwaukee Road, a four-lane avenue without a median separating traffic. Earlier that evening, Smith testified that he removed the Jeep’s detachable top, left and right side doors.

While driving, Smith placed his bare left foot on the car’s outside step, a small metal plate attached to the Jeep below the sill of the door designed to aid entry and exit. He claimed later in his deposition that he did this because both the Jeep floor was warm and he felt cramped against the steering wheel due to the minimal leg space and inability to adjust the car seat. Unfortunately, an oncoming car struck his Jeep’s driver’s side, seriously injuring Smith’s left leg and foot.

In his deposition, which was submitted both by the movant and respondent, Smith further attested that he did not ponder the safety of putting his foot on the outside step. He did realize, however, that it was “common sense” that his foot would have been better protected in the car. When asked by American Motors during his deposition whether he had seen anything to indicate that this step was designed as a footrest for traveling, Smith stated that he did not recall seeing anything that made him “judge it one way or the other.” He did claim that he had observed other people driving with their left feet on the body step of the Jeep in traffic. Moreover, Smith also testified that he viewed the American Motors commercials where the individuals operating the CJ-7 Jeeps had their knees extended outside the doors of the vehicle while driving it. But, he further testified that he never saw any American Motors commercials or advertisements depicting the step as a footrest or suggesting that he safely could put his foot out of the car while driving.

Respondent Smith submitted the affidavit of his expert, John M. Stilson, a consulting engineer offering evaluative services in the areas of vehicular safety, product design defect analysis, and investigation into engineering problems. Stilson’s personal inspection of the Jeep taken on April 26, 1985, permitted his testimony that the vehicle was defectively designed due to the following: (1) lack of a protective shield for the step; (2) presence of removable passenger and driver doors; (3) inability of the driver to adjust the driver’s seat due to the lack of such adjustment; (4) location of the step near the driver position; (5) inadequate passenger compartment floor and dash insulation; and (6) failure to warn the operator to keep all body parts inside the passenger compartments.

Stilson further attested:

“Such design defects rendered the jeep unreasonably dangerous by inviting the driver to operate it with his foot outside the passenger compartment. The lack of adequate insulation, presence of removable doors, and location of the step encouraged the driver to position his limb outside the vehicle while it was being operated. The lack of seat adjustment further added to this by restricting the leg from room available inside the passenger compartment. The presence of a protective shield would have served to avoid or lessen the severity of the injuries he did receive.”

American Motors further submitted photographs of the Jeep showing its construction and the body side step.

Based upon the foregoing submissions, the trial court granted American Motors’ motion for summary judgment which we affirm.

Opinion

As a reviewing court, we may only reverse this order granting summary judgment if we conclude that a material question of fact exists. (Department of Revenue v. Heartland Investment (1985), 106 Ill. 2d 19, 31, 476 N.E.2d 413.) Therefore, we consider all the evidence presented in a light most favorable to Smith, the party opposing entry of summary judgment, and accept as true all reasonable inferences favoring him. Mount Prospect State Bank v. Forestry Recycling Sawmill (1980), 93 Ill. App. 3d 448, 451, 417 N.E.2d 621.

Section 2 — 1005(c) of the Code of Civil Procedure provides that summary judgment shall be rendered “if the pleadings, depositions, and admissions on file, together "with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) In a case where the foregoing material constitutes “all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict,” a summary judgment is then proper. (Scoby v. Vulcan-Hart Corp. (1989), 188 Ill. App. 3d 89, 544 N.E.2d 106.) But, if the facts of the case allow for more than one conclusion or inference, including one unfavorable to the moving party, the motion for summary judgment should be denied. West v. Deere & Co. (1990), 201 Ill. App. 3d 891, 896, 559 N.E.2d 511, 515.

On appeal, Smith presses three basic contentions in asserting that the trial court erred in granting summary judgment. First, Smith argues that, in response to defendant’s motion, he provided affirmative evidence from both his expert’s affidavit and plaintiff’s deposition testimony that the CJ-7 Jeep was in an unreasonably dangerous condition. Second, Smith urges that the court incorrectly applied the case of Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, in its holding that as a matter of law Smith was presented with an open and obvious danger in driving with his foot on the side step. Third, Smith contends that his conduct goes to the issue of “assumption of risk” and therefore" involves consideration only as a damage-reducing factor under a comparative fault analysis. (Simpson v. General Motors Corp. (1985), 108 Ill. 2d 146, 483 N.E.2d 1; Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) American Motors, however, maintains on appeal that summary judgment was appropriate because of the insufficient evidence presented to show that the Jeep’s design subjected Smith to an unreasonable risk of harm.

Our review of the record reveals that this case primarily concerns a single issue: whether Smith’s driving his Jeep with his bare foot outside constituted an open and obvious dangerous condition. To answer this question, we begin our inquiry with an examination of Genaust, the seminal decision relied on by the trial court. As in this case, the material facts involved in Genaust were undisputed. The plaintiff, while attempting to install a metal tower and antennae close to uninsulated overhead power wires owned and maintained by the defendant, was injured by an electrical current which “arced” from the lines to the antennae. (Genaust, 62 Ill. 2d at 459.) Plaintiff subsequently sued the defendant power company and the manufacturers of the tower and antennae in a strict liability action predicated on the theory that the products were unreasonably dangerous due to the failure to have adequate warnings alerting users of the dangers of electrical arcing. Plaintiff admitted that the danger of electricity was a matter of “common knowledge,” and after holding that no duty existed where the possibility of injury resulted from a common propensity of a product which is open and obvious, the court further found that the controlling fact is that:

“[I]t was not reasonably foreseeable a user would install the products in such proximity to electrical wires when the harsh consequences of the slightest mishap, which would cause the metal to contact the wires, are so obvious.” Genaust, 62 Ill. 2d at 466.

Smith claims that Genaust is inapposite to his situation in that (1) he, unlike Genaust, did not concede that the danger of the side step was open and obvious, (2) the nature of the products in both situations differs, and (3) unlike Genaust, Smith seeks to impose liability upon American Motors due to numerous design defects in the Jeep. Plaintiff’s distinctions, however, are unpersuasive.

Smith has consistently attempted to equate the issue of “open and obvious risk” with the affirmative defense of “assumption of risk.” He urges that the extent to which the risk is obvious should simply be a factor in determining damages under a comparative fault analysis. (See Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) We completely disagree. Under Genaust, where the risk of injury is open and obvious as a matter of common knowledge and perception, the product cannot be deemed unreasonably dangerous or defective in the first instance so as to establish a breach of duty against which any liability could attach. (Genaust, 62 Ill. 2d at 466; Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160; Holocek v. E-Z Just (1984), 124 Ill. App. 3d 251, 464 N.E.2d 696.) Injuries are not compensable under strict liability if they are caused by those inherent properties of a product which are obvious to all who come into contact with them. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 155, 507 N.E.2d 1213.) Strict liability applies only when the product is dangerous to an extent beyond that which would be contemplated by the ordinary person with the ordinary knowledge common to the community as to its characteristics. (Renfro, 155 Ill. App. 3d at 155.) Accordingly, the fact that the plaintiff does not concede any personal awareness of the risk has no bearing in determining whether a danger is open and obvious as a matter of common knowledge and perception.

The much-cited case of Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, is directly on point. There, two occupants of a car were killed and three others seriously injured when the car left the paved portion of an interstate highway and collided with the post of an exit sign. A complaint was filed on behalf of the five passengers, alleging that the steel and concrete design of the exit sign post was defective because it was not reasonably safe in the event that automobiles left the paved part of the highway and collided with the post. Plaintiffs in Hunt maintained that the post, which was about five feet from the outer edge of the shoulder of the highway, should have been of a “break-away” design to avoid subjecting motorists to an unreasonable risk of injury, since collisions with posts supporting exit signs placed within a few feet of the highway were foreseeable. The trial court rejected plaintiffs’ theory and granted defendant’s motion for summary judgment, and the appellate court affirmed.

In affirming the judgment of both courts, our supreme court recognized:

“A manufacturer is not under a duty in strict liability to design a product which is totally incapable of injuring those who foreseeably come in contact with the product. Products liability does not make the manufacturer an insurer of all foreseeable accidents which involve its product. Virtually any product is capable of producing injury when put to certain uses or misuses. This is particularly true when injury results from a collision with the product. *** The injuries must derive from a distinct defect in the product, a defect which subjects those exposed to the product to an unreasonable risk of harm.” (Emphasis in original.) (Hunt, 74 Ill. 2d at 211.)

The criterion effectively used by the court in Hunt was the consumer-user contemplation test set forth in section 402A of the Restatement (Second) of Torts. (See Restatement (Second) of Torts §402A, comment i (1965).) Under this test, a product’s design is defective and unreasonably dangerous when the danger it presents is not obvious to the consumer or user.

This test was highlighted in Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160, where plaintiff, age 19, sued a motorcycle dealer, manufacturer, and driver of an automobile for damages for injuries sustained when a car struck his motorcycle, which was not equipped with crash bars, causing him to be thrown from the cycle. In affirming the trial court’s determination that motorcycles without crash bars were not unreasonably dangerous as a matter of law, the Miller court relied on the well-established common law definition that an unreasonably dangerous product was one which was “dangerous to an extent beyond that which would be contemplated by the ordinary person with ordinary knowledge common to the community.” (Miller, 149 Ill. App. 3d at 888.) The court further noted that there was “nothing circumspect about a motorcycle rider’s vulnerability to injury in the event of a collision” (Miller, 149 Ill. App. 3d at 883-88), and that injuries which were caused by obvious propensities in a product are not compensable. In reaching its decision, the Miller court focused on the product itself, not upon the fact that additional safety devices were available, stating that the pivotal question is whether the product itself fails to perform as reasonably expected in light of its nature and intended function. Miller, 149 Ill. App. 3d at 888; accord Bossert v. Tate (1989), 183 Ill. App. 3d 868, 539 N.E.2d 729.

Contrary to the plaintiff’s contentions, where the risk is open and obvious, there is no duty to warn. If a product does possess dangerous propensities, the general rule is that a duty to warn arises where there is unequal knowledge with respect to the risk of harm, and the manufacturer, possessed of such knowledge, knows or should know that harm might occur absent a warning. (Clark v. Penn Versatile Van (1990), 197 Ill. App. 3d 1, 5, 554 N.E.2d 643, 646.) Since the purpose of a warning is to apprise persons coming into contact with the product of dangers of which they are unaware so as to enable them to take appropriate precautions to protect themselves, it logically follows that warnings serve no purpose and, hence, are not required where the dangers are open and obvious. Kokoyachuk v. Aero quip Corp. (1988), 172 Ill. App. 3d 432, 526 N.E.2d 607; Hunt, 74 Ill. 2d at 212.

Smith attempts to predicate American Motors’ liability upon the opinion of his expert that certain design features of the Jeep might have “invited” him to extend his foot outside the passenger compartment. However, such an opinion is of no value where the element of risk is open and obvious for all to see. Moreover, Smith, himself, admitted in his deposition that nothing persuaded him that the step was designed as a moving footrest for his left foot.

Plaintiff further asserts in his brief that he saw American Motors’ commercials depicting Jeep operators flexing their legs so that their knees were in the door frame while driving. But Smith admitted in his deposition that: (1) the commercial portrayed the driver’s feet staying inside the Jeep; and (2) no commercial or advertisement ever demonstrated a car being driven with a driver’s foot on the body side step. Nothing in the record therefore substantiates Smith’s assertions regarding the actual content of the alleged American Motors’ commercial advertisements, and so we are at a loss to review his claim that these commercials could override his “common sense” and thus mask or conceal the obvious risk entailed in placing his foot on a footrest external to the passenger compartment.

In this context, although not urged by the plaintiff, we acknowledge the development of a “representational theory” of products liability. This theory focuses on the images of a product that a manufacturer portrays, in particular, the representations of the product’s safety for all intended uses, and its effects on consumers. (See Shapo, A Representational Theory of Consumer Protection: Doctrine, Function & Legal Liability for Product Disappointment, 60 Va. L. Rev. 1109, 1278 (1974); Note, Oksenholt v. Lederle Laboratories: The Physician as Consumer, 79 Nw. U.L. Rev. 460, 463 (1984), (applying representational theory to prescription drugs); Phelps v. Sherwood Medical Industries (7th Cir. 1987), 836 F.2d 296 (using theory with medical devices).) In those cases in which a manufacturer explicitly or implicitly represents that its product possesses certain characteristics that it does not actually possess, the representational theory would impose liability on the manufacturer for the resulting injury that reasonable use of the product causes. See Britain, Product Honesty is the Best Policy: A Comparison of Doctors’ & Manufacturers’ Duty to Disclose Drug Risks & the Importance of Consumer Expectations in Determining Product Defect, 79 Nw. U.L. Rev. 342, 348-50 (1984).

The instant case, however, does not provide the appropriate “vehicle” to warrant such an approach. Except for alleged fuzzy recollections concerning American Motors’ advertisements, later admitted by Smith as not making him “really judge it one way or the other” as safe to use the sill as a footrest for his left foot while the vehicle was traveling, the record is insufficient in demonstrating the use of commercials and advertising which would have encouraged Smith to use the step and thus encounter an open and obvious danger of injury.

Moreover, even if the representational theory of product liability had some utility in our analysis of Smith’s case, the plaintiff here still could not recover. Smith would have to prove his justifiable reliance on representations that would encourage his misuse of the Jeep’s side step, but the perception of the risk incurred when he placed his foot out onto so open and obvious a danger could not have been diminished by the alleged advertisements.

Accordingly, we conclude there was insufficient evidence presented to raise a genuine issue of material fact that the Jeep was unreasonably dangerous and that the trial court properly entered summary judgment in favor of American Motors.

Judgment affirmed.

LORENZ, P.J., and MURRAY, J., concur.


author: JUSTICE SLATER

text:
      In re MARRIAGE OF GLORIA HAAS, Petitioner-Appellant, and THOMAS O. HAAS, Respondent-Appellee.
    Third District
    No. 3—90—0478
    Opinion filed July 2, 1991.

      Richard W. Zuckerman, of Peoria, for appellant.
    Kelly & Brady, of Peoria (William R. Kelly, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Petitioner appeals from orders entered March 16, 1990, and June 5, 1990, wherein the trial court awarded maintenance, divided property and denied petitioner’s motion to reconsider.

Petitioner commenced this action by filing for legal separation on March 23, 1987. By temporary order dated April 10, 1987, petitioner was awarded $l,000-per-month maintenance and the question of petitioner’s medical bills was reserved. Respondent later filed an answer and counterclaim for dissolution. Temporary maintenance was reduced to $800 per month commencing March 1, 1988, with the question of petitioner’s temporary attorney fees being reserved. On June 20, 1989, an evidentiary hearing was held on property disposition, maintenance and other issues resulting in petitioner being awarded certain marital property and $600-per-month maintenance for 18 months. Petitioner appeals and we affirm in part and reverse in part.

The parties were married November 27, 1974. At the time petitioner commenced this case, she was 49 years old and respondent was 47 years old. The parties adopted one child during the course of the marriage who is now emancipated. Petitioner is employed by Quails Meadows Country Club and her gross income is $558.62 every two weeks. Respondent is employed by Continental Insurance with a yearly gross income of $49,000. He additionally has the use of a company car and receives bonuses from the company during profitable years. In 1987, respondent received a $6,000 bonus and an additional $10,000 “stay-put” bonus when Continental became respondent’s employer. The record is silent whether this money was placed in an account or in any other way has specifically contributed to the accumulation of marital assets. We therefore assume that this money is incorporated into the assets disclosed by the record.

By stipulation, the parties submitted two appraisals of the marital home in the respective amounts of $68,000 and $75,000. The mortgage against the residence was $9,584. The evidence presented revealed additional assets as follows:

Travelers Savings Plan $57,117
Tom Haas IRA 11,259
Tom Haas IRA 3,988
Gloria Haas IRA 10,193
Household furnishings 3,000
1982 Chevrolet Caprice 3,275
Gloria Haas IRA 4,000
Car Sold By Tom Haas 3,700
Silver Bar 600
Tom Haas Retirement Account Amount Unknown

Evidence was also presented regarding the monthly living expenses for both parties. Petitioner’s monthly living expenses were $1,273.35, and respondent’s monthly living expenses were $1,315. Petitioner’s counsel additionally filed two separate affidavits of attorney fees and costs totaling $5,647.82.

The trial court, by judgment dated March 9, 1990, divided the marital property as follows:

Petitioner Equity Value
Marital Home & Accompanying Mortgage $60,000
Gloria Haas IRA 10,193
Gloria Haas IRA 4.000
Household Furnishings Chevrolet Caprice 3.000 3,275
Total Equity Value $80,468
Respondent Equity Value
Travelers Savings Plan $57,117
Tom Haas IRA Tom Haas IRA 11,259 3,988
Silver Bar 600
Total Equity Value $72,964

The trial court also awarded certain other items of personal property which perhaps have more sentimental than dollar value and required a qualified domestic relations order to be entered granting petitioner one half of the value of marital accumulation in respondent’s pension. Lastly, the trial court granted petitioner maintenance in the amount of $600 per month subject to review at the end of 18 months. No order was made regarding the payment of attorney fees.

Three issues are raised on appeal: first, whether the trial court erred in dividing marital property; second, whether the trial court erred in awarding petitioner $600-per-month maintenance; and third, whether the trial court erred in not awarding petitioner her attorney fees.

Petitioner first argues that the trial court failed to consider that respondent removed $12,000 from his Travelers savings plan when dividing marital property and further asserts that the $12,000 withdrawal constituted a dissipation of marital assets. We need not consider whether dissipation occurred because the record clearly shows that the trial court considered the $12,000 withdrawal when dividing property. Much testimony was presented and argument made regarding the appropriate balance of respondent’s Travelers savings plan. Petitioner maintains that the proper amount should be $57,117. Respondent, on the other hand, testified that the balance of the account on the hearing date was $42,000, and that he had previously withdrawn $12,000. Nonetheless, petitioner argues that respondent received $12,000 from the account which was unaccounted for in the trial court’s division of assets. We disagree. No evidence suggested the balance of the account was ever greater than $57,117. In dividing the assets, the trial court used the $57,117 as the balance of the account awarded to respondent. The trial court, therefore, added back respondent’s apparent withdrawals) from the account without considering whether the respondent dissipated assets. Petitioner was in no way prejudiced by the trial court’s failure to determine whether respondent dissipated $12,000 of marital assets.

Petitioner additionally argues that the trial court failed to consider the economic circumstances of the parties and the value of the property awarded to each party when dividing assets. Regarding the valuation of property, our calculations of the trial court’s award actually grant petitioner more assets than respondent. Part of petitioner’s argument again related back to her improper calculation that when respondent was awarded his savings plan of $57,117, he should also be considered as having received the additional $12,000.

Petitioner also argues that respondent ought to be credited in the distribution of the marital assets with an additional $16,000 based on receipt of his “stay-put” payment and bonus received from his employer. We consider that these payments were incorporated as a part of the marital estate divided by the court because the record is otherwise silent. By our calculations, petitioner has been awarded $80,468 and respondent $72,964 in marital assets.

We agree with petitioner that respondent has a greater earning capacity than does petitioner. Aside from this, however, the award of marital property is not inequitable under section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)). While the parties resided together for 11 or 12 years in duration, this is not a situation where one party has spent considerable time out of the job market to care for young children. Both parties have been employed throughout the course of the marriage, and both are currently employed full time. The value of the property awarded petitioner exceeds that awarded to respondent, and the court has made this award in addition to maintenance. Trial courts have broad discretion in fashioning property dispositions (In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 443 N.E.2d 1089), and such decisions will not be set aside absent a clear abuse of discretion. (In re Marriage of Wolf (1989), 180 Ill. App. 3d 998, 536 N.E.2d 792; In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.) Although reasonable men may differ regarding the propriety of the trial court’s allocation of property herein, we find no abuse of discretion.

Regarding maintenance, petitioner argues that she is unable to maintain her standard of living with an award of $600-per-month maintenance. Under section 504(b) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 504(b)), there is no question that respondent has the financial ability to pay maintenance. His net income each month is roughly $2,500 and his monthly living expenses are $1,315. He also has benefits available through his employment which petitioner does not have through her employment. On the other hand, petitioner had about $860 per month net income with monthly expenses of $1,255 and, without maintenance, she would not at this time be able to meet her current obligations without depleting her assets.

Maintenance, however, is designed to be rehabilitative in nature and to allow a dependent spouse to become financially independent. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.) Permanent maintenance is appropriate where it is evident that the recipient spouse is either unemployable or employable only at an income substantially lower than the previous standard of living. Nonetheless, the recipient spouse has a good-faith obligation to become self-sufficient (In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156), with an award of maintenance being used to help the recipient spouse during this transition period. In this case, permanent maintenance is not justified as petitioner has been employed throughout the marriage and seemingly has the potential to become self-sufficient.

The primary testimony regarding petitioner’s present standard of living revolves around her ability to take vacations and dine out in the manner she had become accustomed to. During the pendency of this cause, however, petitioner has been able to dine out, take numerous vacations and still save money. Although this award of maintenance may provide respondent with more disposable income per month than petitioner, there is no requirement in the law that the parties are to permanently maintain the same standard of living. Section 504(b)(3) primarily concerns the standard of living established during the marriage in relation to the recipient spouse’s ability to maintain that standard of living without maintenance. Again, our standard for review is whether the trial court abused its discretion. An award of $600 per month does not appear to cause petitioner a decreased standard of living. Moreover, she seemingly has all of the education and training she needs to find appropriate employment, there being no contrary indication in the record. Keeping in mind that the maintenance award was reviewable in 18 months, the trial court’s award to petitioner of $600-per-month maintenance is not an abuse of discretion.

Finally, regarding attorney fees, section 508 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 508) allows for an award of fees where one party lacks the financial resources and the other party has the ability to pay. (See In re Marriage of Carini (1983), 112 Ill. App. 3d 375, 445 N.E.2d 412.) Financial inability exists where requiring payment of attorney fees would strip that party of her means of support or undermine that party’s financial stability. (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336.) In this case, it is clear that petitioner will be unable to pay her attorney fees and costs without depleting part of the marital assets awarded to her. Respondent, however, appears to be able to pay his fees as well as petitioner’s fees without depleting assets, based on his income and additional bonuses. Requiring petitioner to deplete her assets is not equitable in this case where respondent is able to meet both expenses. The trial court abused its discretion in not allocating attorney fees and not directing that respondent pay petitioner’s attorney fees and costs of $5,647.82.

The judgment of the trial court is, therefore, affirmed in all respects except for the trial court’s failure to award attorney fees. Respondent is ordered to pay petitioner’s attorney fees and costs of $5,647.82.

Affirmed in part; reversed in part.

STOUDER, P.J., and GORMAN, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICKIE LINN WILSON, Defendant-Appellant.
    Fourth District
    No. 4—90—0805
    Opinion filed July 23, 1991.
    Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On October 13, 1983, defendant Vickie Linn Wilson was indicted for the offenses of felony retail theft (Ill. Rev. Stat. 1983, ch. 38, pars. 16A — 3(a), 16A — 10(2)) and battery (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 3). Defendant was tried before a jury on September 24, 1990, and convicted of the offense of felony retail theft. Defendant was sentenced to 30 months’ probation, with 45 days to be spent in the county jail, and ordered to pay fines totaling $220. On appeal, defendant contends (1) the State failed to prove defendant’s prior retail theft conviction; (2) the trial court erred in tendering to the jury an instruction patterned after section 16A — 5 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 16A — 5); and (3) the trial court erred in sentencing when it considered defendant’s unemployment status. We conclude her conviction must be reduced to a misdemeanor, and remand for resentencing.

Kim Witzig was employed as a loss-prevention agent for Montgomery Ward on October 2, 1983. At approximately 2:40 p.m., Witzig observed defendant along with another female, later identified as her sister, Lisa Wilson, crouched down in front of the computer game display in the toys and sporting goods department. Witzig saw defendant and her sister leave the toys and sporting goods department and proceed to the southeast corner of the store to the lawn and garden department. Here, they met an older woman, who was later identified as their mother. At this time, the women had nothing in their hands except their purses. The women proceeded to the children’s department where both defendant and Lisa selected some children’s clothing. Witzig observed the mother produce an empty Montgomery Ward shopping bag from her purse which she held open while defendant and Lisa put children’s Levi jeans inside the bag. Their mother continued to carry the bag. Witzig observed all of this from a hidden observatory on the second floor.

Witzig paged another security officer, Dave Deerwester, who was working the floor of the store in plainclothes. Deerwester responded to the page by picking up a phone located behind a cash register. Because defendant was watching Deerwester during this time, Witzig instructed Deerwester to leave the store, which he did.

Later, Lisa, who was now carrying the Montgomery Ward’s bag, and defendant exited the mall without paying for the items. As the two left, they began to run. Witzig chased them to their car, identifying himself as a store security guard. Witzig tried to get into the passenger side of their car; however, he was locked out. Witzig then ran to the driver’s side and pulled the keys from the ignition. He got into the car to get the merchandise and the women began to scratch and hit him. Their mother then came out of the store and began to help defendant and Lisa.

During the struggle, Witzig kicked defendant in the midsection. Defendant stated she was pregnant and, after taking defendant’s and the older woman’s identification, Witzig allowed the two to drive to the hospital. Witzig testified he kicked defendant in self-defense.

Witzig testified he had had previous contact with defendant in early September 1983. Defendant was at that time in the Montgomery Ward’s store with a couple of women. Witzig observed one of the other women take an empty Montgomery Ward’s bag from her purse and watched as defendant and the other women put children’s clothing in the bag. Defendant carried the bag around the store and Witzig proceeded to follow her. However, Witzig was spotted by the other two women, who then told defendant. The three women all looked at Witzig, waved at him, and walked out of the store, leaving the bag behind.

Lisa Wilson testified that on October 2, 1983, she went to Montgomery Ward with her mother and defendant. The purpose of the shopping trip was so their mother could purchase a globe for her ceiling fan. While the three were shopping, Lisa noticed her mother had a bag of merchandise and defendant was feeling ill. Because of the illness, defendant went to the car to wait for her mother and sister. Lisa carried the bag of merchandise out of the store. Lisa testified defendant had not taken anything from the store or put anything into the bag.

Lisa testified as she left the store to go to the car, she was followed by Kim Witzig. Witzig had not identified himself at this time. Lisa got into the passenger’s side of the car and Witzig attempted to get in too. Witzig then went to the driver’s side and grabbed the keys out of the ignition. A struggle ensued between Witzig, Lisa, and defendant. Defendant tried to prevent Witzig from hurting Lisa, who was also pregnant.

On cross-examination, Lisa admitted she suspected the goods inside the bag were stolen. Prior to defendant’s trial, Lisa had pleaded guilty to her participation in the offense.

Defendant testified that on October 2, 1983, she was shopping with her sister and mother. The three women were shopping separately, but when they got together, defendant noticed her mother had a bag. When defendant asked her mother if she had bought something, her mother answered “Shh.” Defendant interpreted this to mean her mother had not paid for the items. Defendant testified she did nothing to assist her mother in planning to steal the items or in actually taking the goods from the store. Defendant was beginning to feel ill due to her pregnancy, and told her mother she was going to wait for them in the car.

Shortly thereafter, Lisa came out of the store with a bag and was pursued by Kim Witzig. Lisa jumped into the passenger’s side of the car. Witzig went around to the driver’s side and grabbed the keys from the ignition. Lisa then got out of the car and began arguing with Witzig. Defendant testified Witzig then hit Lisa in the stomach. Defendant jumped out of the car and tried to protect Lisa from Witzig. It was during this time defendant was kicked in the stomach.

Defendant was charged with the act of felony retail theft in 1983, but was not tried until 1990. At the time defendant was charged with the offense, the State was required to prove the prior conviction as an element of the offense. (Ill. Rev. Stat. 1983, ch. 38, par. 16A — 10(2).) Effective January 1, 1988, the retail theft statute was amended to state that a prior conviction, while having to be charged in the indictment or information to give notice the State was seeking a felony conviction, but was not an element of the offense. (See Ill. Rev. Stat. 1987, ch. 38, par. 16A — 10(2).) This amendment was substantive in nature and was not to be applied retroactively. People v. Jennings (1989), 181 Ill. App. 3d 439, 537 N.E.2d 6.

The indictment charging defendant with felony retail theft alleged defendant had a 1980 conviction for retail theft in Macon County. However, this was never proved as an element at trial. Defendant testified she had a previous conviction for retail theft, but the jury was instructed to consider this offense only for purposes of impeachment. The State admitted a certified copy of defendant’s previous conviction into evidence; the record does not indicate, however, this ever went to the jury. The testimony surrounding the admission of the certified copy indicates it was only to be used for purposes of impeachment. It is clear from the record the court, prosecution, and defense counsel were of the opinion defendant’s prior conviction was not to be made an element of the offense.

Under similar circumstances, the Illinois Supreme Court has ruled where the State was required to prove a felony to sustain a charge of unlawful use of a weapon by a felon, and the jury received evidence of that felony as well as an instruction the prior felony be used only for impeachment, defendant’s conviction for unlawful use of weapons by a felon could not stand. (People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496.) Moreover, defendant is not estopped from asserting this issue even though defense counsel failed to raise it at trial or in a post-trial motion. The failure to prove a material allegation of an indictment beyond a reasonable doubt is fatal to the judgment of conviction and the question may be raised for the first time upon review. People v. Walker (1955), 7 Ill. 2d 158, 130 N.E.2d 182.

This case is factually different from our decision in People v. Rice (1985), 137 Ill. App. 3d 285, 484 N.E.2d 514. In Rice, we held the defendant had failed to properly preserve for review the issue of whether the State’s failure to prove his prior conviction prior to the trial court’s finding of guilty precluded enhancement of misdemeanor retail theft to felony retail theft. At a bench trial, the defendant was found guilty of misdemeanor retail theft. At the close of the trial, the defendant failed to object to the State’s request to postpone judgment until the sentencing hearing so the State could prove the prior retail theft conviction. During the sentencing hearing, the defendant did not object to admission of the prior conviction for purposes of proving felony retail theft. Defense counsel further stated there was no objection to the court entering judgment on the conviction. We found, in light of defendant’s knowledge of the State’s intent to prove the prior theft in order to secure a conviction for felony retail theft as was alleged in the information, fairness required application of the waiver rule. Rice, 137 Ill. App. 3d at 286-87, 484 N.E.2d at 514-15.

Here, judgment was entered for the offense of felony retail theft even though the prior theft was never proved. Accordingly, defendant’s felony retail theft conviction must be reduced to a misdemeanor retail theft and the cause is remanded for resentencing.

We find no merit to defendant’s second contention, in which she alleges the trial court erred in tendering to the jury an instruction patterned after section 16A — 5 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 16A— 5). This statute provides a merchant who has reasonable grounds to believe a person has committed retail theft may detain such person in a reasonable manner and for a reasonable length of time to request identification or make inquiry as to whether the person has in his possession unpurchased merchandise. (Ill. Rev. Stat. 1989, ch. 38, par. 16A — -5.) This instruction pertained to the offense of battery, of which defendant was acquitted. Defense counsel did not object to this instruction at trial, and we find no error occurred.

Defendant’s third issue, regarding an alleged error in sentencing when the trial court considered her unemployment status, need not be discussed as this case is remanded for resentencing as a misdemeanor offense.

Affirmed as modified, and cause remanded for resentencing.

LUND, P.J., and GREEN, J., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN D. WALLEY, Defendant-Appellee.
    Second District
    No. 2—90—0711
    Opinion filed July 17, 1991.
    Rehearing denied August 15, 1991.

      Michael E Coghlan, State’s Attorney, of Sycamore (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    William P. Brady and T. Jordan Gallagher, both of Gallagher, Klein & Brady, of De Kalb, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The State appeals from an order of the circuit court of De Kalb County granting a motion of the defendant, Steven Walley, to quash a subpoena duces tecum and bar the use of any evidence obtained pursuant to that subpoena. On appeal, the State contends that barring the use of the evidence was an excessive and inappropriate sanction.

On August 1, 1988, defendant was arrested and subsequently charged by complaint with two counts of driving while under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501(aXl), (aX2)). On May 12, 1989, the State had a subpoena duces tecum issued commanding St. Anthony Hospital to produce “any and all written blood alcohol test results conducted in the regular course of providing emergency medical treatment to [defendant] on August 1, 1988.” Although the subpoena directed the keeper of the hospital records to produce the records in court on May 30, 1989, it further provided that she could comply with the subpoena by “providing legible copies of the documents requested *** to the authorized agent serving [the] subpoena.” The requested documents were delivered to the State’s Attorney’s office on May 17, and copies were forwarded to defense counsel on May 18. There was no court hearing scheduled or held on May 30.

On June 9, defendant filed a motion to quash the subpoena and a motion in limine contending that the procedure employed by the State in issuing the subpoena was improper. The defendant requested that the subpoena be quashed and the State be barred from using any evidence “obtained, revealed or tainted by the illegal subpoena.” It does not appear that a hearing was held on the motions at that time.

Meanwhile, the case of People v. Hart (1990), 194 Ill. App. 3d 997, also arising from De Kalb County, was pending in this court. The subpoena procedure followed by the State in Hart was virtually identical to that followed in this case. In Hart, the circuit court in De Kalb County ruled in July 1988, shortly before the State again used the same procedure here, that the procedure it was using in procuring subpoenas was improper. The trial court’s ruling was affirmed on appeal in an opinion filed January 16,1990.

In this case, but after the Hart opinion was filed, the State requested and received affidavits from doctors who had treated the defendant at St. Anthony Hospital and Kishwaukee Community Hospital. The affidavits stated that the defendant received emergency medical treatment at both hospitals on August 1, 1988. Blood tests were given at both hospitals, and the results were considered in diagnosing and treating the defendant. Based on those affidavits, the State moved for the issuance of subpoenas duces tecum for the hospitals’ records. The court granted the motion for a subpoena on Kishwaukee Community Hospital but denied the motion as to St. Anthony Hospital. Defendant then moved to quash the Kishwaukee subpoena claiming a physician-patient privilege. When the Kishwaukee records were delivered to the court, the court impounded them.

On April 26, 1990, the trial court issued an opinion letter on the defendant’s motion to quash and motion in limine. The court found that the procedure employed by the State in procuring the St. Anthony records in May 1989 was improper. The court further found that the State had acted in bad faith by following subpoena procedures the circuit court had held to be improper in another case to which the State was a party. The court quashed the original St. Anthony subpoena and barred the State from using the evidence obtained pursuant to that subpoena. The court also barred the State from using the Kishwaukee records, apparently because the existence of those records only became known through examination of the improperly obtained St. Anthony records.

The State filed a motion to reconsider which was denied as to the St. Anthony records but was granted as to the Kishwaukee records. The court vacated that part of its opinion letter barring use of the Kishwaukee records, subject to the defendant’s unresolved motion to quash on the grounds of physician-patient privilege. The State then filed its notice of appeal and certificate of impairment.

On appeal, the State contends that the trial court’s ban on the use of evidence “obtained, revealed or tainted” by the original, admittedly improper, subpoena duces tecum was an excessive and inappropriate sanction. The State challenges the trial court's findings that it acted in bad faith and ignored previous orders of the circuit court. The State argues that it was not bound by the decision of another circuit court judge in the unrelated Hart case and, furthermore, that the Hart case was on appeal when the improper subpoena was issued in this case.

In People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 265, our supreme court held that as distinct from discovery, which is the parties’ procedure, a subpoena is a judicial process or court writ so that subpoenaed materials should be delivered directly to the court. The court, then, determines the relevance and materiality of the subpoenaed materials, whether they are privileged, and whether the subpoena is unreasonable or oppressive. (77 Ill. 2d at 265.) In Hart, with reference to the principles of Fisher, we determined that that use of the subpoena procedure, one similar to the one employed by the State in this case, was improper because it provided for extrajudicial delivery and inspection of documents and materials. (Hart, 194 Ill. App. 3d at 1002.) We found that the procedure there effectively circumvented judicial review. 194 Ill. App. 3d at 1002.

The rule that subpoenaed materials must be available for judicial review has been firmly in place at least since Fisher. This court’s opinion in Hart affirmed that principle. The question of sanctions for abuse of subpoena procedure, however, is less established. In Hart, while we upheld the trial court’s quash of subpoenas, we vacated the court’s sanction of a bar against the State’s using any of the evidence “obtained, revealed or tainted by” the improper subpoenas. We observed that the defendant had not directed the court to “any authority for imposition of such a sanction without a hearing under these facts.” 194 Ill. App. 3d at 1002.

The use of subpoenas is a judicial process (Fisher, 77 Ill. 2d at 267), and courts have broad and flexible powers to prevent abuses of their processes (United States v. Carlone (7th Cir. 1981), 666 F.2d 1112, 1115). A trial court has inherent authority to insure the defendant a fair trial and may impose sanctions to do so. (People v. Lawson (1977), 67 Ill. 2d 449, 456.) Although the exclusion of evidence may not be favored as a sanction (People v. Stuckey (1979), 78 Ill. App. 3d 1085, 1090), in order to interfere with a sanction imposed by a trial court, this court would have to find an abuse of discretion or an arbitrary or capricious use of sanctions. People v. Endress (1969), 106 Ill. App. 2d 217, 223-24.

The trial court here determined that its sanction of barring resulting evidence was appropriate, in part, because the State had acted in bad faith and ignored a previous court order. The trial court found the sanction was necessary to protect the rights of the defendant and to prevent further abuses by the State.

Under the circumstances presented here, we do not conclude that the trial court abused its discretion. The subpoena duces tecum used here was improper because: (1) it provided for extrajudicial delivery and inspection of materials; (2) defendant was denied an opportunity to challenge the issuance of the subpoena since he was not made aware of what materials were sought in the subpoena until after they were obtained by the State; and (3) the subpoena was issued for a date when no court hearing was scheduled or held. (See Hart, 194 Ill. App. 3d at 1002.) Furthermore, the subpoena was sought after the trial judge in the Hart case had warned the State’s Attorney’s office of De Kalb County that their subpoena duces tecum procedure was improper.

While the holding of the trial judge in Hart was not precedential in this case, through it the State clearly was placed on notice that its procedures might be improper. Here, the State persisted in employing an improper procedure in spite of the long-standing case law of Fisher and a recent warning from the circuit court. Also here, apparently unlike in Hart, the imposition of the court’s sanction followed a hearing on that issue. We find that the trial judge’s sanction was not an abuse of his discretion. Furthermore, the sanction imposed by the court was not “excessive” or “draconian” as the State suggests. It was directed at and limited to the material obtained as a result of the improper subpoena.

The judgment of the circuit court of De Kalb County is affirmed, and the cause is remanded for further proceedings. We note that the defendant’s motion to quash the Kishwaukee subpoena on the basis of physician-patient privilege is still pending. On remand, the trial court must determine whether the exception will apply under the circumstances presented here.

Affirmed and remanded.

INGLIS and BOWMAN, JJ., concur.