The Mental Health and Developmental Disabilities Confidentiality Act which protects communication of mental health records prevails over the absolute litigation privilege, the Fifth District Appellate Court has decided.

Filed under Supreme Court Rule 23, a panel of appellate court justices late last week reversed a Madison County Circuit Court decision entered by Chief Judge Ann Callis.

Justice Richard Goldenhersh delivered the opinion of the court with Justices Stephen Spomer and Justice James Donovan concurring.

Sisters Megan and Emily Fuhler filed a lawsuit in 2010 against Dr. John Petrovich, Gateway Regional Medical Center, Community Health Systems, Heartland Clinic, Behr, McCarter and Potter and Richard Behr, for obtaining their mother's mental health records, which the plaintiffs argued should have been protected under the Confidentiality Act.

The case arose from litigation involving their mother Jan Fuhler, who worked for Petrovich from 1993 until 2004. Her employment was terminated in March 2004, almost two months after she told her superiors at Gateway Regional Medical Center that Petrovich was abusing cocaine.

Petrovich pled guilty in October 2005 to felony drug charges.

Jan Fuhler filed a suit for retaliatory discharge, but it was dismissed in February 2006.

During the course of that litigation, the defendants issued a subpoena requesting Jan Fuhler's psychiatric records.

Those records were also used and transferred to another case against Petrovich. In that case, Bonnie Seitz alleged Petrovich had committed medical malpractice while under the influence of cocaine.

Jan Fuhler was not a party in the Seitz case, but a potential witness to Petrovich's substance abuse. That case was dismissed in December 2008.

Plaintiffs Megan and Emily Fuhler were not parties in either of the two previous lawsuits involving Jan Fuhler or her records.

However, the sisters argued that the mental heath records contained highly personal and sensitive information about them and that information should have been protected under the Confidentiality Act.

The defendants argued that the publication of the private facts was not published to the public at large; therefore, the Fuhlers had no standing under the Confidentiality Act.

On June 25, 2010, Callis dismissed the sisters' case on grounds that the defendants were protected under the absolute litigation privilege.

Plaintiffs filed a motion to reconsider arguing that the absolute litigation privilege did not apply.

On July 13, 2010, Callis entered an order denying the motion to reconsider in regard to defendants, but granting a reversal of the dismissal of the client defendants.

Later, Callis certified the following question regarding the client defendants:

"When third party non-clients have sued an attorney in tort for his alleged litigation misconduct in the course of defending his clients in prior lawsuits and the trial court has dismissed with prejudice those tort claims filed against the attorney because of the absolute litigation privilege, was it error for the trial court to deny the Motion to Dismiss filed by the clients of that attorney who were also sued by the third parties for vicarious liability for their attorney's alleged litigation misconduct?"

Goldenhersh wrote that the appellate court's decision would focus on the attorneys as defendants.

"Our conclusion that the absolute litigation privilege does not protect the alleged conduct of the attorney defendants makes the certified question regarding the client defendants moot," Goldenhersh said.

"In the end, defendants' reliance on the absolute litigation privilege is misplaced. The Confidentiality Act, not the absolute litigation privilege, governs the communication of mental health records," Goldenhersh wrote.

The case has been remanded to the circuit court.

Megan and Emily Fuhler are represented by Roy Dripps of Alton.

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