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  1. #1
    Join Date
    Feb 2008

    Default Mental Health and Medical Issues in Discovery

    I live in Illinois -

    I'm being sued for something I wrote as a comment on a discussion board.
    The Plaintiff and I got in a disagreement, and what I thought was heated banter turned into me being sued for a million dollars.

    Plaintiff's lawyer served me with my interrrogatories. I responded.
    My attorney served Plaintiff with his set. He asked him to provide the names and dates of all his doctors that he has seen, meds he has to take (or taken) due to the fact that my post has cost this person severe anxiety,panic attacks, suicidal thoughts, etc.

    Plaintiff responded that he would not answer these "personal"medical questions and the posts are damaging enough that he doesn't need to produce his medical/mental health background.

    Here is my question... Can my attorney make a request to a judge to get his past mental/medical records?

    If he can, what are the chances that the judge will release these private records?

    I believe my attorney wants to prove that this man has (had) mental problems in the past, and we should be able to show that my posts weren't what "turned his life upside down" "Makes him think about suicide on a daily basis" and "has no reason to go on"

    If the judge wont release his medical/mental health records, and Plaintiff will not respond with the questions, what do you think this means?

    I mean, this man is asking for one million dollars and this does not include punitive damages.

    And in case your wondering, the posts were on a message board that deals with a very popular t.v. show, and it was people just disagreeing about the contestants.

    Please help with any advice, thank you very much.

  2. #2
    Join Date
    Jul 2006

    Default Re: Mental Health & Medial Issues

    Quote Quoting BradysMom
    Here is my question... Can my attorney make a request to a judge to get his past mental/medical records?

    If he can, what are the chances that the judge will release these private records?
    This site below may provide some answers for you:

    Scroll down to: "Disclosure in Legal Proceedings". (Approximately half way down the page.)

  3. #3
    Join Date
    Jan 2008

    Default Re: Mental Health & Medical Issues

    This is very interesting information to have.
    Good luck, and please let us know how this turns out Brady's mother.

  4. #4
    Join Date
    Feb 2008

    Default Re: Mental Health & Medial Issues

    Quote Quoting Happy Trails
    View Post
    This site below may provide some answers for you:

    Scroll down to: "Disclosure in Legal Proceedings". (Approximately half way down the page.)
    Thank you Happy for that information.
    That is wonderful information.
    I guess it's still a 50/50 shot that we can obtain his mental/medical records, but at least there is a chance. Thank you again.

    Higgly.. I will keep you all informed..thank you as well.

  5. #5
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Mental Health & Medial Issues

    As a general rule (I'm not referring specifically to Illinois), where a person makes their physical or mental health an issue for trial (in this case, by claiming injury and demanding damages), the defendant is entitled to take discovery. When the plaintiff does not comply the normal steps are to bring a motion to compel, and possibly a motion for partial summary disposition or a motion in limine to prevent the plaintiff from claiming those injuries at trial.

    I suspect that the problem is not that he's trying to keep records from you - he's trying to keep you from learning that despite all his claimed trauma he has not once seen a doctor or psychiatrist about his claimed injury. (Or he has been seeing a doctor or psychiatrist, and reported no change in his mental or physical condition after the supposedly injurious incident.)
    Quote Quoting Illinois Supreme Court Rule Rule 219. Consequences of Refusal to Comply with Rules or Order Relating to Discovery or Pretrial Conferences
    (a) Refusal to Answer or Comply with Request for Production. If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on notice to all persons affected thereby, the proponent of the question may move the court for an order compelling an answer. If a party or other deponent refuses to answer any written question upon the taking of his or her deposition or if a party fails to answer any interrogatory served upon him or her, or to comply with a request for the production of documents or tangible things or inspection of real property, the proponent of the question or interrogatory or the party serving the request may on like notice move for an order compelling an answer or compliance with the request. If the court finds that the refusal or failure was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney's fees. If the motion is denied and the court finds that the motion was made without substantial justification, the court shall require the moving party to pay to the refusing party the amount of the reasonable expenses incurred in opposing the motion, including reasonable attorney's fees.

    (b) Expenses on Refusal to Admit. If a party, after being served with a request to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter of fact, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making the proof, including reasonable attorney's fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.

    (c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
    (i) That further proceedings be stayed until the order or rule is complied with;

    (ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;

    (iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;

    (iv) That a witness be barred from testifying concerning that issue;

    (v) That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party's action be dismissed with or without prejudice;

    (vi) That any portion of the offending party's pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue; or

    (vii) That in cases where a money judgment is entered against a party subject to sanctions under this subparagraph, order the offending party to pay interest at the rate provided by law for judgments for any period of pretrial delay attributable to the offending party's conduct.
    In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty. When appropriate, the court may, by contempt proceedings, compel obedience by any party or person to any subpoena issued or order entered under these rules. Notwithstanding the entry of a judgment or an order of dismissal, whether voluntary or involuntary, the trial court shall retain jurisdiction to enforce, on its own motion or on the motion of any party, any order imposing monetary sanctions, including such orders as may be entered on motions which were pending hereunder prior to the filing of a notice or motion seeking a judgment or order of dismissal.

    Where a sanction is imposed under this paragraph (c), the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.

    (d) Abuse of Discovery Procedures. The court may order that information obtained through abuse of discovery procedures be suppressed. If a party wilfully obtains or attempts to obtain information by an improper discovery method, wilfully obtains or attempts to obtain information to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter any order provided for in paragraph (c) of this rule.

    (e) Voluntary Dismissals and Prior Litigation. A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, opinion expert witness fees, reproduction costs, travel expenses, postage, and phone charges.
    Quote Quoting Illinois Supreme Court Rule Rule 215. Physical and Mental Examination of Parties and Other Persons.
    (a) Notice; Motion; Order. 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. The motion shall suggest the identity of the examiner and set forth the examiner’s specialty or discipline. The court may refuse to order examination by the examiner suggested but in that event shall permit the party seeking the examination to suggest others. A party or person shall not be required to travel an unreasonable distance for the examination. The order shall fix the time, place, conditions, and scope of the examination and designate the examiner. The party calling an examiner to testify at trial shall disclose the examiner as an opinion a controlled expert witness in accordance with these rules.

    (b) Examiner's Fee and Compensation for Loss of Earnings. The party requesting the examination shall pay the fee of the examiner and compensation for any loss of earnings incurred or to be incurred by the party or person to be examined in complying with the order for examination, and shall advance all reasonable expenses incurred or to be incurred by the party or person in complying with the order.

    (c) Examiner's Report. Within 21 days after the completion of the examination, the examiner shall prepare and mail or deliver to the attorneys for the party requesting the examination and the party examined duplicate originals of a written report of the examination, setting out the examiner's findings, results of all tests made, and the examiner's diagnosis and conclusions. The court may enforce compliance with this requirement. If the report is not delivered or mailed to the attorney for the party examined within the time herein specified or within any extensions or modifications thereof granted by the court, neither the examiner's report, the examiner's testimony, the examiner's findings, X-ray films, nor the results of any tests the examiner has made may be received in evidence except at the instance of the party examined or who produced the person examined. No examiner under this rule shall be considered a consultant.

    (d) Impartial Medical Examiner.
    (1) Examination Before Trial. A reasonable time in advance of the trial, the court may on its own motion or that of any party, order an impartial physical or mental examination of a party whose mental or physical condition is in issue, when in the court's discretion it appears that such an examination will materially aid in the just determination of the case. The examination shall be made by a member or members of a panel of physicians chosen for their special qualifications by the Administrative Office of the Illinois Courts.

    (2) Examination During Trial. Should the court at any time during the trial find that compelling considerations make it advisable to have an examination and report at that time, the court may in its discretion so order.

    (3) Copies of Report. A copy of the report of examination shall be given to the court and to the attorneys for the parties.

    (4) Testimony of Examining Physician. Either party or the court may call the examining physician or physicians to testify. Any physician so called shall be subject to cross-examination.

    (5) Costs and Compensation of Physician. The examination shall be made, and the physician or physicians, if called, shall testify without cost to the parties. The court shall determine the compensation of the physician or physicians.

    (6) Administration of Rule. The Administrative Director and the Deputy Administrative Director are charged with the administration of the rule.

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