2-12-2018; Gene Keefe on What I Feel is a Botched Federal "Traveling Employee" Ruling; Shawn Biery on Important Psych Record Dispute and more

Synopsis: 7th Circuit Federal Appellate Court—In Gene Keefe’s Reasoned Opinion, “Botches” WC Traveling Employee Concept and Knocks Out Suit By Injured Employee Against Employer for Co-Employee Attack


Editor’s comment: Plaintiff worked for Etihad Airways, a publicly owned airline owned and operated by the government of the United Arab Emirates. In October 2013, he was a crew member on a flight from Abu Dhabi to Chicago. When the plane touched down, the employer Etihad arranged for the four-member crew to spend the night at The Westin in downtown Chicago. At the hotel, the crew started drinking. They shared cocktails before dinner, then continued drinking during dinner. One member of the crew became intoxicated and started ranting or otherwise carrying on about how he didn’t like Americans or British citizens. As the evening wore on, this wayward crew member pretended to choke Plaintiff, a British citizen, to emphasize this somewhat childish and fairly stupid point. At the end of the meal, the wayward and intoxicated crew member basically ditched the other workers to “dine and dash.” He left without his coat or contributing to paying his share of the tab. The remaining crewmembers settled the restaurant tab, and Plaintiff took the departed crew-member’s coat to give it back to him when possible.


Later the same evening, the wayward co-worker knocked on Plaintiff’s hotel door. Plaintiff opened the door, thinking the inebriated co-worker was there to apologize for his poor manners, maybe kick in a couple of bucks toward dinner and collect his coat. Instead, without any warning, the drunken crew member blasted Plaintiff on the head and leg with a bronze hotel decoration. At the same time, the inebriated co-workers was hurling epithets about Plaintiff’s British nationality and threatened his life.

Plaintiff defended himself and eluded the drunken co-worker and went to the hotel lobby, in tattered shape. He was taken to Northwestern Memorial Hospital, where he was treated for a head and leg trauma along with a nasty scalp laceration. Plaintiff missed almost three months from work during recovery.

Back at the hotel, the drunken co-worker was arrested and charged with battery. The wayward drunk posted bond on Oct. 14 but then disappeared, violated the terms of his bond and did not return to the U.S. to face criminal charges.

Plaintiff sued the miscreant co-worker, his employer and the hotel. According to Plaintiff’s complaint, Etihad Airways asked the wayward attacker to resign as an employee. He did so, but later started working with another Etihad affiliate called Jet Airways.

In 2015, Plaintiff filed a complaint in the U.S. District Court for the Northern District of Illinois alleging negligence by the attacker along with Etihad Airways, Starwood Hotels & Resorts, LaSalle Hotel Properties and Dublin Bar and Grill. Plaintiff alleged his employer Etihad Airways knew the attacker had a history of issues with alcohol and violence, but they kept him as a worker because of nepotistic connections at the airline. Plaintiff also accused Etihad of crafting a plan “to get both the attacker and Plaintiff out of the United States as soon as possible” after the unhappy incident. Plaintiff sued Etihad Airways for negligent “retention,” common law negligence and willful and wanton conduct. Plaintiff also sued his attacker for negligence and willful and wanton conduct.

On April 7, 2017, the USDC for the Northern District of Illinois dismissed all of Plaintiff’s claims. The federal judge ruled if Plaintiff wanted a remedy and/or compensation for this injury, he would need to seek it through the Illinois Workers’ Compensation Commission.

Last Wednesday, federal Seventh Circuit Court of Appeals upheld the dismissal. It rejected Plaintiff’s argument that the Foreign Sovereign Immunities Act, which allows plaintiffs to sue foreign states, pre-empts the Illinois Workers’ Compensation Act. The decision noted Etihad Airways was considered a “foreign state” because of its affiliation with the government of the United Arab Emirates. The federal court ruled Plaintiff misinterpreted the FSIA. The Court ruled in passing the FSIA in 1976, Congress intended to prevent the executive branch from conferring immunity on foreign states by granting the power to make immunity determinations to the judiciary only. Once the decision on immunity was made, then other laws governing the suit’s relevance should apply.

The appellate ruling did not consider Plaintiff’s argument Etihad Airlines did not meet the definition of an employer under the Il WC Act, because Plaintiff had not raised it at the trial court level. If Plaintiff had raised it and the USDC had considered the argument, the case might have gone a different way. We note IL WC guru Marc Perper was quoted as saying “What jumped out at me right away about this decision was the argument that the plaintiff waived, which was whether his employer met the definition of an employer under our Workers’ Compensation Act,” Perper said. “That may have been a legitimate argument” he added. Section 1A of the IWCA defines “employer,” and “if you look at it, a foreign government is not listed among the entities that meet the definition of an employer,” Perper said. I agree strongly with Marc.

My personal legal/technical issue with the ruling is based on a very controversial concept in Illinois workers’ comp law. I don’t agree at all with the federal appellate court’s interpretation of IL WC law. I say this with all due respect to the members of the Seventh Circuit Court of Appeals. The ruling says:

[Plaintiff]’s injuries arose out of his employment. The question of whether an injury arises out of the employment of traveling employees is answered differently than for other employees. Kertis v. Ill. Workers’ Comp. Comm’n, 991 N.E.2d 868, 873 (Ill. Ct. App. 2013). “An injury sustained by a traveling employee”—one whose work requires him to travel away from his employer’s office and for whom travel is an essential element of the employment—“arises out of his employment if he was injured while engaging in conduct that was reasonable and foreseeable.” Id. [Plaintiff], an Etihad pilot, was unquestionably a traveling employee. He sustained his injury while in his employer-paid hotel room on a layover when his fellow crewmember knocked on his door. That a coworker would knock on [Plaintiff]s door, and that [Plaintiff] would open the door, while the crew was staying at the hotel is both reasonable and foreseeable.

[Plaintiff]- conceded that he was injured during the course of his employment. (Appellant’s Br. at 34–35; R. 111 at 11–12.)

Please note the legal term “traveling employee” does not appear in nor is it defined in the IL WC Act or the Rules Governing Practice Before the IL WC Commission. I don’t agree the Kertis ruling relied on by the federal appellate court states “black letter” WC law or represents well-settled WC law in this state. In my view, the Kertis ruling is completely an outlier that stands by itself. The much more cogent and applicable “traveling employee” ruling is the IL Supreme Court ruling in Venture-Newberg-Perini, Stone & Webster v. Ill. Workers’ Compensation Comm’n. In that ruling, our highest state court rejected the impossible-to-understand “traveling employee” concept. In my view, if the traveling employee concept ever becomes IL WC law, an admin going across the street to get a pack of gum is globally covered for anything they “reasonably” do.


I also disagree Plaintiff can “concede” he was in the course of employment—that is an issue that has to be proven in any IL WC claim. The employee doesn’t “concede” it. And whatever he “conceded” he was wrong—there is no chance, none, this man was in the course of employ when randomly attacked by a drunken goof.


Further, I don’t at all agree a bunch of drunk airline crew members who get into a stupid after hours fight over just about nothing should be entitled to IL WC benefits. They weren’t fighting about anything remotely related to their work duties, conditions or the employer. I don’t feel an employer should have any liability at all for injuries that occurred while all the workers were not on the clock or otherwise being paid and weren’t doing anything in furtherance of their employer. I also cannot imagine how an employer should be able to expect one worker to spontaneously and cowardly attack another worker.


We will have to see if/when the injured worker files an IL WC claim—I don’t personally feel the Arbitrator or IWCC are legally bound by this federal ruling. I appreciate your thoughts and comments. Please post them on our award-winning blog.



Synopsis: Just in Time for Valentine’s Day—Failure to Protect Personal Health Information Can Lead to Significant Heartache! Research and Analysis by Shawn R. Biery, J.D., MSCC.


Editor’s comment: Anyone dealing with workers’ compensation claims knows the systemic barriers to retrieving medical information. This issue is only further compounded by claims which have any alleged psychological component and as we see in a recent case in northern Illinois, disclosure of certain protected health information


In general, federal HIPAA laws have an “exception” for workers’ comp which allows disclosure of personal health information or PHI for WC claims to the extent the state law allows it. The Privacy Rule permits covered entities to disclose protected health information to workers’ compensation insurers, State administrators, employers, and other persons or entities involved in workers’ compensation systems, without the individual’s authorization:


•                    As authorized by and to the extent necessary to comply with laws relating to workers’ compensation or similar programs established by law that provide benefits for work-related injuries or illness without regard to fault. See 45 CFR 164.512(l).


•                    To the extent the disclosure is required by State or other law. See 45 CFR 164.512(a).


•                    For purposes of obtaining payment for any health care provided to the injured or ill worker. See 45 CFR 164.502(a)(1)(ii) and the definition of “payment” at 45 CFR 164.501.


However, we are seeing more providers seek releases regardless of issuance of Illinois WC Subpoenas in request for records related to WC claims, even without any psych component involved.  Inclusion of a psychological component in the claim, generally does not render the need for a release moot—and in fact, most medical releases do not actually allow for the release of mental health or drug related records unless specific verification of authorization for those records is provided separately.


Illinois also passed a law, which took effect in 1979 and applies retroactively to records and communications made prior to its adoption, and which establishes more stringent standards for disclosure with regard to mental health records. The Mental Health and Developmental Disabilities Confidentiality Act provides for the confidentiality of such information and lists narrow exceptions under which mental health records and communications between a patient and his or her physician may be disclosed. The stringent disclosure standards protect the confidentiality of such records with the goal of encouraging people to seek needed treatment. According to the MHDDCA, “[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act.” Some terms within the MHDDCA take on a much narrower meaning than their common everyday use.


Those definitions, found in Section 110/2, can be key in understanding the rule of law and include:


•                    “Record” is “any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided.”

•                    A “communication” made confidential under the Act is “any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient.”  (A “communication” includes the mere fact that a person is receiving mental health treatment.)

•                    The Act uses the terms “recipient” to refer to the patient whose records are at issue and “therapist” as the medical professional from whom confidential information is sought. (“therapist” need not be a psychologist or psychiatrist, but can be any physician or even a physician’s employee.)


Furthermore, the Act only prohibits disclosure from “those persons entering into a therapeutic relationship with clients.” So, for example, a pharmacist performing a routine transaction or questioning a customer about her mental condition and treatment does not engage in such a relationship. The Act’s provisions are construed strictly and the courts are directed to “zealously guard against erosion of the confidentiality privilege” when presiding over anyone seeking nonconsensual release of mental health records.


Section 110/15 then creates a cause of action for damages, injunction, and fees and costs for violations of the Act. Section 110/16 makes it a Class A misdemeanor to “knowingly and willfully” violate any provision of the Act. Please note such criminal exposure may apply to attorneys, claims handlers, HR managers and others. Records and communications may be disclosed in an action brought under this provision so long as it is not used for any other purpose.


In a recent ruling a “Jane Doe” plaintiff’s complaint was reinstated by the courts against a well-known Rockford law firm and one of its partners. There was a claim they violated the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Count 1), invaded her privacy (Count 4) and intentionally inflicted emotional distress (Count 5) by simply subpoenaing Doe’s mental health records without following the proper protocols in the MHDDCA and then disclosing some of the confidential information.


Plaintiff Jane A. Doe appealed an order of the circuit court of Lee County dismissing her complaint against Defendants Williams McCarthy, LLP (Williams McCarthy); Clayton Lindsey, and Treva Sarver (individually and in her capacities as trustee of the Ruby Louise Lance Living Trust dated September 2, 2009 and successor trustee of the Ruby Louise Lance Revocable Living Trust dated March 15, 2002), in accordance with section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2016)).


Plaintiff’s second amended complaint which alleged:


•                    Plaintiff previously sued Sarver regarding “the validity of the Trust and Estate of a Decedent” (the trust litigation).

•                    Sarver was represented in the trust litigation by attorney Lindsey and the law firm that employed him, Williams McCarthy.

•                    Defendants violated an order pursuant to the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq. (2012)) (HIPAA order) and the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 2016) by disclosing to persons, including the public, without Plaintiff’s consent and without following the procedures specified in the Act, facts pertinent to Plaintiff’s mental-health status and treatment.


Factually, Plaintiff alleged, in connection with the trust litigation, defendants filed 11 subpoenas containing protected information. Plaintiff continued, “the [Lee County circuit court] allowed the public to access and view court documents in the [trust litigation], including the documents contained within Plaintiff’s court file such as the above-mentioned eleven subpoenas, all of which identified Plaintiff’s medical providers and mental health providers, via in-person viewing and via on-line case information searching, until the court entered an Order, on [July 26, 2013], sealing the file from public access.” According to Plaintiff, this violated the HIPAA order, entered on March 13, 2012, which limited access to such records to “attorneys of record and the staff of the attorneys of record.”


The complaint also alleged Defendants knew certain individuals were “therapists,” that Sinnissippi Centers, Inc., in Dixon and Rochelle were mental-health treatment facilities, and disclosure of the records of such individuals and facilities violated the MHDDCA to the extent procedures set forth in the Act were not followed. The complaint further alleged Williams McCarthy and Lindsey conveyed such information to Sarver, in violation of the HIPAA order. Further, contrary to the provisions of the Act, defendants did not notify plaintiff’s treatment providers that they were seeking access to plaintiff’s mental-health records. Moreover, defendants failed to make the threshold showing plaintiff had placed her mental health at issue in the trust litigation. Also, prior to any disclosure, the trial court was required to make an in camera review of the records. The subpoenas were not accompanied by a judge’s written order authorizing the disclosure.


The complaint also alleged Williams McCarthy and Lindsey contacted plaintiff’s treatment providers and threatened they would be held in contempt if they did not release plaintiff’s records. During a deposition, Williams McCarthy and Lindsey attempted to question a psychiatrist about plaintiff’s mental-health status and treatment, in violation of the HIPAA order and the Act. The complaint further alleged Sarver violated the HIPAA order by “viewing and copying such records of Plaintiff[] and by obtaining and viewing a listing of Plaintiff’s medical providers and mental health providers which Defendants Williams McCarthy and Lindsey had obtained from Attorney Paul Whitcombe, who was then Plaintiff’s counsel in the [trust litigation].” Plaintiff stated that, during a deposition, Sarver “made an outburst and yelled, within the hearing of and in the presence of the parties, their counsel, the court reporter, and the deponent, Plaintiff was mentally ill.” In May 2013, plaintiff received three envelopes in the mail, with no return addresses, containing copies of various medical records, mental-health records, and subpoenas. Finally, during the pendency of the trust litigation, defendants made statements, in open court and in the presence of the public, concerning plaintiff’s mental-health status, diagnoses, and treatment.


The complaint set forth five counts under which plaintiff sought relief, incorporating by reference the material set forth above.


•                    The first count set forth a claim under the Act as to all defendants, alleging defendants violated the Act by seeking and obtaining plaintiff’s mental-health records even though she did not place her mental health at issue; seeking and obtaining such records without ensuring the trial court had conducted an in camera review of them; seeking and obtaining such records without ensuring the trial court had made the requisite findings under the Act after conducting an in camera review; seeking and obtaining such records without written notice to plaintiff and her mental-health treatment providers; seeking a court order requiring plaintiff to sign a written consent to the disclosure of such records; filing a motion to dismiss, “seeking to punish [p]laintiff for exercising her statutory privilege to refuse to disclose” such records; and issuing subpoenas that did not comply with the Act.

•                    Count II alleged legal malpractice by Williams McCarthy and Lindsey. It first alleged an attorney-client relationship between all defendants. It then claimed plaintiff was a third-party beneficiary of the attorney-client relationship. Plaintiff based this claim on the fact Lindsey drafted the HIPAA order, purportedly for plaintiff’s benefit. Thus, plaintiff reasons, Williams McCarthy and Lindsey owed her a duty of reasonable care. The actions taken by Williams McCarthy and Lindsey led to the disclosure of certain mental-health records breached this duty.

•                    The third count alleged negligent supervision on the part of Williams McCarthy. This count sought to hold Williams McCarthy liable for failing to prevent Lindsey from violating the HIPAA order and the Act.

•                    Count IV, pertaining to all defendants, alleged an invasion of plaintiff’s privacy by the “public disclosure of private facts.”

•                    The fifth count alleged intentional infliction of emotional distress. This count alleged that defendants’ violations of the Act and the HIPAA order exhibited “wanton and utter indifference” to plaintiff’s rights and constituted “extreme and outrageous conduct.”


Defendants moved to dismiss. The trial court granted the motion. It first noted the instant litigation arose out of the previous trust litigation, which was in front of a different trial judge, Judge Ackert. The trust litigation concerned claims the settlor, Ruby Lance, lacked the capacity to execute a trust and Sarver exerted undue influence over Lance, which caused plaintiff to be excluded from the trust. During that litigation, plaintiff alleged, defendants subpoenaed, obtained, and made part of the court file certain of plaintiff’s medical and mental-health records. The issues presented in the motion to dismiss, the trial court noted, were whether counts I, IV, and V were barred by the absolute-litigation privilege and whether, with respect to counts II and III, any duty existed and extended to plaintiff. The trial court found Williams McCarthy and Lindsey owed no duty to plaintiff, and it dismissed counts II and III. It expressly found that the HIPAA order was not drafted with the primary intent to benefit plaintiff; rather, Williams McCarthy and Lindsey simply intended to comply with the law.


As for the remaining counts, the trial court found they were barred by the absolute litigation privilege. It noted the privilege applied to claims of intentional infliction of emotional distress and invasion of privacy. Although count I was based on the Act, it was in the nature of an invasion-of-privacy claim, so the privilege applied to it as well. The trial court further noted plaintiff’s mental-health records were relevant to the trust litigation. It observed one of the issues was whether the reason plaintiff was left out of Lance’s “will or trust” was her estrangement from Lance. Plaintiff’s need for counseling was purportedly due, in part, to this estrangement, and the mental-health records would substantiate this. There was also an issue regarding whether, in assessing Lance’s mental capacity, a doctor attributed some of plaintiff’s history to Lance. Thus, plaintiff’s records were relevant to cross-examining the doctor and assessing his opinion. Finally, the trial court noted that conduct in a previous case typically cannot form the basis of a cause of action in a new case.


This appeal followed. However on appeal, plaintiff limited her arguments to counts I, IV, and V, the counts dismissed pursuant to the absolute-litigation privilege. She made no argument that Williams McCarthy or Lindsey owed her a duty (thus, counts II and III are not addressed any further).


The Appellate Court noted an affirmative matter outside the complaint may bar or defeat the cause of action based upon Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139. Here, the affirmative matter relied on by defendants is the absolute-litigation privilege. As the court explained, the absolute-litigation privilege immunizes certain statements and conduct by attorneys in the course of litigation. See, e.g., Medow v. Flavin, 336 Ill. App. 3d 20, 32 (2002). Also, “[a] private litigant enjoys the same privilege concerning a proceeding to which he is a party.” Johnson v. Johnson & Bell, Ltd., 2014 IL App (1st) 122677. The privilege is based on section 586 of the Restatement (Second) of Torts, which provides as follows:


An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. Restatement (Second) of Torts § 586 (1977).


The purpose of the privilege is to allow attorneys “ ‘the utmost freedom in their efforts to secure justice for their clients.’” Kurczaba v. Pollock, 318 Ill. App. 3d 686, 701-02 (2000) (quoting Restatement (Second) of Torts § 586 cmt. a, at 247 (1977)). It further serves to facilitate the free flow of information between attorneys, clients, and the court system. O’Callaghan v. Satherlie, 2015 IL App (1st) 142152. Its application “is limited, however, to instances where the administration of justice and public service require immunity.” Id. As an absolute privilege, the class of communications to which it applies is narrow. Kurczaba, 318 Ill. App. 3d at 701. For the privilege to apply, the communication must bear some relationship to the proposed or “pending litigation” and it must be in furtherance of that litigation. O’Callaghan, 2015 IL App (1st) 142152. However, this latter requirement is not strictly applied, and all doubts are to be resolved in favor of finding the communication pertinent to the litigation. Id. Indeed, when the privilege applies, “no liability will attach even at the expense of uncompensated harm to the plaintiff.” Id.


The court first examined counts IV and V—alleging common-law invasion of privacy and intentional infliction of emotional distress, respectively. In Johnson, 2014 IL App (1st) 122677, the court found the privilege applicable to claims of “invasion of privacy, negligence, negligent infliction of emotional distress, and breach of oral and written contracts.” See also O’Callaghan, 2015 IL App (1st) 142152 (holding privilege applies to action alleging intentional infliction of emotional distress). Hence, we have little difficulty concluding that the trial court correctly determined that the privilege applied to bar counts IV and V. These counts were based on acts done in the course of and in furtherance of the trust litigation. Plaintiff complained that defendants placed material in the court file and made statements in open court. Counts IV and V relied—generally—on the same acts. Seeking information from witnesses, issuing subpoenas, and seeking to obtain and enforce discovery are intimately related to litigation. In short, the acts of which plaintiff complained were clearly pertinent to the trust litigation, so the privilege plainly applies. Recasting the same acts as different torts does not avoid this bar. See Johnson, 2014 IL App (1st) 122677.


There is a lengthy discussion in the decision regarding the arguments—pertinent to the point of this article is a note of the court indicating defendants’ actions occurred in a judicial proceeding, so the trial court could have imposed sanctions. Further, the trial court did seal the records at issue. They also noted the allegation of information disseminated to her mental-health treatment providers, unidentified persons present in the courtroom, unidentified members of the public, attorneys not of record, persons present during depositions, and unidentified persons who (might have) viewed the court file was too speculative to merit consideration. As such, several circumstances were not present for those counts to be present.


Turning to count I, the court did perceive different concerns at issue. Plaintiff argues that the absolute-litigation privilege has never been applied to bar a proceeding under the Act. She further criticizes the trial court’s attempt to analogize an action under the Act to an invasion-of-privacy claim. Defendants acknowledge that the privilege has not previously been applied in this context. Unlike with the common-law counts, here we must consider whether the privilege can thwart a legislative enactment. Indeed, the chief flaw with the trial court’s analogy is that invasion of privacy is a common-law theory whereas an action based on the Act is statutory. The Act itself plainly creates a private right of action. Section 15 of the Act states, “Any person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief.” 740 ILCS 110/15 (West 2016). Section 3(a) states that “[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act.” 740 ILCS 110/3(a) (West 2016). Furthermore, in accordance with section 10, the Act applies “in any civil, criminal, administrative, or legislative proceeding.” 740 ILCS 110/10 (West 2016).

Thus, the plain language of various provisions of the Act indicates that the legislature intended it to control all releases of the material it makes confidential in all types of proceedings and that a safeguard against improper disclosure is a civil action. It has been held that “the Act constitutes a ‘strong statement’ by the General Assembly about the importance of keeping mental health records confidential. [Citation.]” Norskog v. Pfeil, 197 Ill. 2d 60, 71 (2001). Conversely, the absolute-litigation privilege applies to a “narrow class of cases.” Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 561 (1997). Although defendants make a number of policy-based arguments as to why the privilege should be applied expansively, we view this issue more as one of legislative intent regarding the scope of the Act.


Thus, the question remains as to whether the statutory provisions must give way to the absolute-litigation privilege. We find sound guidance on this question in an analogous context, as this question has already been addressed in the context of the common-law privilege enjoyed by witnesses. In Renzi v. Morrison, 249 Ill. App. 3d 5, 6 (1993), the court considered whether common-law witness immunity foreclosed a lawsuit under the Act where a witness disclosed confidential material during a court proceeding. The Renzi court concluded that it did not. Id. at 8. The court observed that the “legislature recognized that the right to witness immunity must be balanced with the right to privileged communication between doctor and patient.” Id. The legislature created a cause of action for “any person aggrieved by a violation of [the] Act.” Id.; see also 740 ILCS 110/15 (West 2016). The court then noted that allowing the privilege to defeat such an action would make such language a nullity. Renzi, 249 Ill. App. 3d at 8. See also Mandziara v. Canulli, 299 Ill. App. 3d 593, 598 (1998) (approving of Renzi and noting that common law “must give way” to the statutory protections of the Act). Renzi concerned common-law witness immunity while this case concerns the absolute litigation privilege. Nevertheless, we perceive no principled way to distinguish Renzi and its progeny. Whatever can be said about the interplay between the Act and common-law witness immunity can also be said in the instant context. Accordingly, we hold that the absolute litigation privilege provides no shield for a party charged with a violation of the Act and in light of the foregoing, they did reverse the trial court’s dismissal of count I of plaintiff’s complaint, and otherwise affirm. The cause was then remanded for further proceedings consistent with the opinion with regard to absolute litigation privilege.


The takeaway for anyone dealing with personal health information is to safeguard that information as you would safeguard your wallet!  Secondarily, it is another reason to seek HIPAA compliant releases for your claims—and we believe any refusal to provide at least a specific release related to conditions alleged in a workers’ compensation claim should provide a Respondent a shield to penalties for denial since the penalties are so severe as to provide a significant barrier to the appropriate flow of information necessary to promote implementation of the statutory requirements of the IL WC Act. This article was written and researched by Shawn R. Biery, JD MSCC. You can reach Shawn at sbiery@keefe-law.com with any questions or thoughts.