No Exception for Mental Health Records for Claimed Neurological Injury

Kayla Condeni, whose practice focuses on medical malpractice matters, explains the First’s District’s holding in Sparger v. Yamini.

The First District of the Appellate Court of Illinois recently held in Sparger v. Yamini, 2019 IL App (1st), 180566, that where a plaintiff claims a neurological brain injury, rather than a psychological injury, the plaintiff has not put his or her mental health at issue and their mental health records remain privileged under the Illinois Mental Health and Development Disabilities Confidentiality Act, 740 ILCS 110/3 et seq.

In Sparger, the minor plaintiff alleged that the defendant physician delayed in repairing a spinal fluid leak which resulted in her developing meningitis. Sparger, 2019 IL App (1st), at 2. Thereafter, the plaintiff was evaluated by a neuropsychologist to determine if meningitis “affected her cognitive, emotion, and behavioral presentation.” Id. at 9. The neuropsychologist issued a report stating that plaintiff presented with signs and symptoms consistent with a traumatic brain injury, including cognitive impairments such as decreased attention span, auditory processing delays, impaired memory, impaired mental stamina, and social interaction deficits. Id. at 10. The report concluded that “Given her medical history, it is likely that her impaired cognitive presentation is the result of her recent episode of meningitis in May of 2015.” Id.

The plaintiff produced the report to the defendant. The defendant then subpeoned the medical records of plaintiff’s prior treating physicians, including plaintiff’s hospital records for admissions that pre-dated her meningitis. The hospital records contained the plaintiff’s mental health information, which prompted the plaintiff to obtain the records, redact the records and assert the mental health privilege, and submit the records to the trial court for an in-camera inspection. Id. at 11. In response, defendant filed a motion to compel arguing that the neuropsychologist’s report had put plaintiff’s mental health at issue by concluding her injury had affected her cognitive, emotional, and behavioral presentation so defendant was entitled to determine what plaintiff’s cognitive, emotional and behavioral presentation was prior to the occurrence. Id. at 12. The court agreed with the defendant finding that plaintiff had put her mental at issue, the records showed the plaintiff displayed “emotional symptomatology” prior to developing meningitis, and therefore the exception under Section 10(a) of the Mental Health Act applied. The court ordered the records be fully disclosed without redactions. Id. at 14. The plaintiff took a friendly contempt and the issue was brought up on appeal.

The First District held that the trial court erred in ordering plaintiff to produce the records because the records were protected mental health information and the plaintiff had not put her mental health at issue. In making its decision, the First District held that Reda v. Advocate Health Care, 199 Ill. 2d 47 (2002), was controlling Id. at 17. In Reda, the plaintiff suffered acute thrombosis following a knee replacement surgery which resulted in his toes being amputated and ultimately a stroke. Id. at 21. During plaintiff’s deposition, he testified that he now experienced headaches and his wife testified that he was now very emotional, frustrated, and mean. Id. at 22. Based on this testimony, the defendant claimed the plaintiff had put his mental health at issue and they were entitled to his mental health records. The Illinois Supreme Court disagreed. The Court explained that “a neurological injury is not synonymous with psychological damage. Nor does neurological injury directly implicate psychological damage.” Id. at 23, citing to Reda, 199 Ill. 2d 47, 58. If that were true, then any injury involving the brain would automatically open the door to the plaintiff’s mental health records, and “eviscerate the privilege.” Id. The Court held that the plaintiff’s complaints were for neurological injuries, given his stroke, and not psychological injuries.

The First District held the distinction made in Reda, between a neurological injury and psychological damage, was controlling in Sparger. The First District emphasized that the neuropsychologist report concluded the plaintiff had a traumatic brain injury, which was a neurological injury and not a psychological injury. Id. at 25. Additionally, the plaintiff had stipulated that she was not seeking damages based on psychiatric, psychological, or emotional damages. Accordingly, plaintiff had not put her mental health at issue and defendant was not entitled to her mental health records.

Unfortunately, the court did not define what constitutes a neurological injury versus a psychological injury and held only that since the neuropsychologist determined plaintiff suffered a traumatic brain injury, the claim clearly fell within the purview of neurological injury. In cases where plaintiff’s claim is less clear cut, defendants can expect plaintiffs to argue that they are alleging a neurological injury and not a psychological injury, in an attempt to keep the mental health privilege intact and deny defendants access to plaintiff’s mental health records, even where plaintiff is claiming emotional and behavioral injuries as a result of defendant’s negligence.