Posted on October 7, 2020

Medical Records And Divorce In Illinois

Divorce is a tragedy.  It often affects a divorcing person’s mental and physical health.  Then those health issues can become an issue in the divorce. Divorcing parties start making accusations about their spouse’s mental and physical health and subsequently demand records to corroborate the accusations.  So, what happens to medical records in an Illinois divorce?

Patient-Physician Privilege In Illinois

The Illinois statutes do not allow a doctor to disclose any information about a patient.

“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient.” 735 ILCS 5/8‑802

There are numerous exceptions but the most common is that a doctor can share information “with the expressed consent of the patient” 735 ILCS 5/8‑802

There’s an important reason that doctors cannot share their patient’s private and even not-very-private information.

“The statutory privilege is a legislative balancing between relationships which society thinks should be fostered through the shield of confidentiality and the interests served by disclosure of the information in court.” In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

A doctor may not disclose information but what about the doctor’s records? A doctor’s records are also privileged and not permissible in an Illinois divorce court.  Every doctor’s record, document or piece of paper must be authenticated via testimony of the person who made the document or be certified as records of regularly conducted activity. So, a doctor’s record, while private in itself, cannot be introduced without the doctor testifying which is also privileged.

In short, if you wouldn’t have known unless your doctor told you (like a prescription), you don’t need to disclose it in an Illinois divorce court.

Patient-Psychiatrist Confidentiality In Illinois

Psychiatrists are also doctors and anything a psychiatrist has said or written is also privileged in an Illinois divorce court.

“The psychiatrist-patient privilege, like the privileges attaching to other relationships such as husband-wife, attorney-client, and physician-patient, is based on the premise that communications made within the ambit of the relationship are intended to be, and should remain, confidential.” Gottemoller v. Gottemoller, 346 NE 2d 393 – Ill: Appellate Court, 3rd Dist. 1976

Society has a vested interest in having people be completely candid with their psychiatrists.

“The beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny unless the patient affirmatively places her mental condition into issue.” In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

Patient-Therapist Confidentiality In Illinois

A person does not need to have a the letters “PhD” behind their name in order to keep a secret from the courts. Therapy is widely available from people of more limited training but the service of therapy is still regarded as sacrosanct enough to be privileged by the Illinois courts.

“[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.” 740 ILCS 110/10

But What If They Ask ME About My Medical History In An Illinois Divorce?

What is allowed in an Illinois divorce court as evidence is determined by the Illinois Rules of Evidence. Almost everything a party to a divorce knows about their health is subject to physician-patient privilege.

Below is a word-for-word exchange that occurred in a case where a party to a divorce was asked about her medication. The exchange illustrates perfectly what happens to divorce parties with mental health issues in trial.

“[COUNSEL FOR RESPONDENT]: What medication are you on?

A. None.

Q. None?

A. None.

Q. Was any medication prescribed to you while you were in the hospital?

A. Yes, sir.

Q. What medication was prescribed to you while you were in the hospital?

A. This is sort of private.

[COUNSEL FOR PETITIONER]: Just a moment. That is going to open the door on the question of waiving the privilege. I would have to object to that.

[COUNSEL FOR RESPONDENT]: There is no privilege on that kind of a question. This is not a confidential statement.

[COUNSEL FOR PETITIONER]: The doctor had to prescribe something and that opens the door to the basis for his prescription.

THE COURT: I don’t believe so. The objection is overruled. If she knows what medication she got, she should answer the question.””In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

In this case, a counsel asked an opposing party what they knew regarding their own health. That’s not exactly asking their doctor for the patient’s health information.  Still yet, in Illinois, you can’t ask that in divorce court. The person testifying can assert your physician-patient privilege. The person testifying can’t disclose any health information otherwise they would be waiving the privilege for future questions. So, the above judge’s decision to allow testimony was subsequently overruled by the appellate court.

In an Illinois divorce “[M]ental condition shall not be deemed to be introduced merely by making such claim” 740 ILCS 110/10(a)(1)

The person with the condition must bring their mental health issue up first for an Illinois divorce court to consider the mental condition of a client.

In an Illinois divorce, “mental condition shall not be deemed to be introduced merely by making such claim and shall be deemed to be introduced only if the recipient or a witness on his behalf first testifies concerning the record or communication.” 740 ILCS 110/10(a)

The exception to this secrecy is if the person has already shared something confidential with a third party (had a third person in their therapy session, for example)

“[W]here the communication was made confidentially, if the party entitled to assert the privilege consents to revelation of the material to a third party, the privilege is deemed waived.” In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

How Can Medical Records Be Introduced In An Illinois Divorce?

The rule should be clear now: medical records cannot be submitted to the court as evidence willy-nilly in an Illinois divorce.  Medical, psychiatric and therapeutic information is private…even in an Illinois divorce case.

In an Illinois divorce without children, it’s hard to imagine a situation where the health of one of the parties would be relevant.

In an Illinois divorce with children, courts are going to want to know if one of the parents have a health issue for the sake of the best interests of the children.

The courts are required to consider “the mental and physical health of all individuals involved” 750 ILCS 5/602.7(a)(7) and 750 ILCS 5/602.5(c)(3) when considering both parenting time and parental responsibilities during an Illinois divorce.

The previous rules regarding the privilege of medical doctors, psychiatrists and therapists all supersede this requirement for an Illinois court to investigate a party’s mental and physical health…but there are ways around those rules.

In fact, in order to discovery a person’s health status, all an Illinois attorney has to do is request that the court appoint a doctor to investigate a party’s mental and/or physical state.

“In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.” Illinois Supreme Court Rule 215

So why doesn’t everyone request that their “ill” spouse be examined during an Illinois divorce case?

Because it’s expensive! The examining doctor must be an impartial doctor who is completely new to the case. An Illinois divorce judge is likely to assign the initial cost of the examination to the person requesting the examination and subsequent report.

More frequently, in a divorce with children, a Guardian Ad Litem gets appointed who investigates the physical and mental health of the parties.

A Guardian Ad Litem is an attorney who represents the best interests of the children.

“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

The Guardian Ad Litem will ask all the parties for waivers in order to discuss their health with their respective doctors, psychiatrists and therapists.  The Guardian Ad Litem should then keep that information private except for as it relates to the best interests of the children. 

The Guardian Ad Litem then uses that information to prepare a final recommendation for the divorce judge to consider when issuing final custody orders.

“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child” 750 ILCS 5/506(a)(2)

The Confidentiality of 604.10(b) And 604.10(c) Reports In An Illinois Divorce

If either party has a significant disagreement with the Guardian Ad Litem’s recommendations or findings, they are likely to ask for a psychiatrist or therapist to provide evidence of the person in question’s mental health.

“The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects.” 750 ILCS 5/604.10(b)

If you do not like the court’s appointed mental health expert, you can hire your own expert.

“In a proceeding to allocate parental responsibilities or to relocate a child, upon notice and motion made by a parent or any party to the litigation within a reasonable time before trial, the court shall order an evaluation to assist the court in determining the child’s best interests” 750 ILCS 5/604.10(c)

The report will include sensitive information such as “a report of the data collected; all test results; [and] any conclusions of the professional relating to the allocation of parental responsibilities under Sections 602.5 and 602.7” 750 ILCS 5/604.10(b),(c)

604.10(b) and 604.10(c) reports are NOT confidential. While the 604.10 reports disclose mental health information, they must be disclosed to the court and to the opposing counsel.

“[T]he disclosure of the section 604(b) report and its contents to the opposing party and counsel is mandatory pursuant to section 604(b) of the Marriage Act. Accordingly, section 110(a)(4) of the Confidentiality Act does not apply to the contents of a 604(b) report.” Johnston v. Weil, 946 NE 2d 329 – Ill: Supreme Court 2011

If for some reason, private medical information is revealed in an Illinois divorce court, that disclosure would be a valid basis for a motion to seal the court file.

If you are certain your spouse is ill and you need to bring that information to the attention of an Illinois divorce court or you are trying to keep your own medical history private in an Illinois divorce court, contact my Chicago, Illinois family law firm to privately discuss your matter with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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