Plaintiff Says His Attorneys’ Press Release Violated HIPAA. Illinois Supreme Court Says It Didn’t

Litigants alleging their attorneys breached confidential medical information should heed a recent ruling from the Illinois Supreme Court (Doe v. Burke Wise Morrissey & Kaveny, LLC). The Plaintiff, who had recently won a medical malpractice action at trial against a hospital, filed a lawsuit against the firm representing him for a press release it published following the trial.

The Initial Medical Malpractice Lawsuit

In the underlying malpractice action, the defendant hospital sought and obtained Plaintiff’s protected health information through the Health Insurance Portability and Accountability Act of 1996 (HIPAA). However at trial, Plaintiff testified at length about injuries sustained during an admission to the hospital’s emergency room, including an attempted suicide in which he had stabbed himself several times. In that initial underlying malpractice action, Plaintiff was awarded $4.2 million for his injuries.

What Came Next

Following the trial, Plaintiff’s attorneys issued a press release, which was published in the Chicago Law Bulletin, that identified Plaintiff’s injuries and his subsequent diagnoses. Plaintiff then sued his attorneys for privacy and disclosure violations of the Mental Health and Developmental Disabilities Confidentiality Act (Mental Health Act).

Plaintiff’s attorneys, now Defendants, responded with a motion to dismiss on the basis that there was no therapeutic relationship between them and the Plaintiff. The trial court agreed and dismissed the case. Plaintiff appealed that decision.

The Appellate Case that Followed

On appeal, the First District Appellate Court reversed the decision of the circuit court and remanded for further proceedings. The appellate court found that the information covered in the defendants’ press release was covered under the Mental Health Act.

Specifically, the appellate court found the fact that Plaintiff’s original attorneys/now Defendants did not have a therapeutic relationship with him was not a proper basis to support Defendants’ claim because HIPAA disclosure consents didn’t extend to publication in the Chicago Law Bulletin. The court held that Section 5(d) of the Mental Health Act states that Plaintiff needed to specifically consent to redisclosures such as Defendants’ press release. Furthermore, the First District found the argument that only therapists could be held liable under the Mental Health Act wholly unpersuasive.

For those reasons, the Court found that Plaintiff had stated a sufficient cause of action. Thus, it seemingly acknowledged a broad standard for those who could be found to violate the Mental Health Act. If upheld, this ruling meant discussions and publications of mental health information could be subject to even greater concerns of legal liability.

Appealing the Appeal

Next, it was Plaintiff’s original lawyers/now Defendants’ turn to appeal. The Illinois Supreme Court took up the case, and it reversed again and found for the Defendants.

Unlike the First District, the Supreme Court focused on the public nature of the Plaintiff’s admissions at court. The Court agreed that under section 10(a) of the Mental Health Act, Plaintiff had the right to refuse to disclose or prevent disclosure of confidential health information. However, it noted that that privilege did not prevent him from disclosing the information himself. In fact, the Supreme Court found that when Plaintiff chose to do so at trial, he waived his privilege of confidentiality under the Mental Health Act. The Court also noted that this rule (“Protection from disclosure is available only when the party asserting a privilege has maintained confidentiality”) has been broadly adopted in other contexts.

The Plaintiff had voluntarily testified in the underlying malpractice action about the information to which he now sought to hold his counsel liable. By limiting the press release to only that information to which Plaintiff testified at trial, the Court found Defendants were protected. Furthermore, the Supreme Court found that though HIPAA governed how a covered entity or business may use or disclose private health information, it did not govern how a patient may choose to divulge that same information. The Court ruled that to be found liable for a HIPAA violation under the Mental Health Act, there did indeed need to be a therapeutic relationship.


This Supreme Court ruling is significant in that it further clarifies the basis for liability under the Mental Health Act. This will add greater clarity for practitioners dealing with private health information. Although exceptional caution should always be exercised when the possibility of disclosure of that type of information is possible, this ruling helps better define the terms of who is liable and for what reason.

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Kerri Forsythe

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