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Bench & Bar
The newsletter of the ISBA’s Bench & Bar Section

January 2017, vol. 47, no. 6

Can a defendant be compelled to submit to a Rule 215 physical or mental examination?

Plaintiffs have long been required to submit for physical or mental examinations by a physician of defendants choosing upon motion within a reasonable time before trial in accordance with the provisions of Illinois Supreme Court Rule 215. Under those circumstances, typically the defendant obtains a report favorable to the defense and then designates the examining physician as a Supreme Court Rule 213 expert on behalf of the defense. The question then arises, are there circumstances where a plaintiff can request that the Court compel the defendant to submit to a physical or mental examination by a physician designated by the plaintiff? The case of Jane Doe v. Norman Weinzweig, 2015 IL App (1st) 133424-B, answers that question in the affirmative.

The case of Jane Doe v. Norman Weinzweig involved circumstances wherein the plaintiff and the defendant met through a dating service, It’s Just Lunch, and after their second date engaged in sexual relations. The plaintiff claimed that both parties affirmed to one another, prior to engaging in physical activity; that neither had any sexually transmitted diseases. Shortly after the physical encounter, plaintiff developed symptoms of an STD. After going to her physician and undergoing testing, a diagnosis of the herpes 2 virus was confirmed. Thereafter, plaintiff Doe contacted defendant Weinzweig to advise him of the diagnosis at which time he neither admitted nor denied that he too was infected but asked her not to contact an attorney and that he would pay for her medical expenses. Rather than follow the defendant’s request, plaintiff did contact an attorney in order to ascertain her rights, which resulted in a complaint being filed against the defendant and the dating service. The defendant dating service filed a Motion to Dismiss and ultimately settled its liability and therefore was not a party at the time of the Appeal.

Defendant Weinzweig filed a Motion to Dismiss plaintiff’s complaint pursuant to Section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619) to which he attached copies of certain medical records containing a lab report and a signed declaration on his part averring that as of October 2010 he had undergone a battery of tests and did not have the herpes 2 virus. He further averred that he had no signs or symptoms of the herpes 2 virus and that based upon his medical education, prior medical testing and his lack of symptoms, he believed that he was not infected with the herpes 2 virus at the time of the physical encounter with the plaintiff. Thereafter, the plaintiff filed an Amended Complaint to which the Court allowed discovery. Defendant, Weinzweig filed an Answer to the Amended Complaint that did not include Counterclaims, Affirmative Defenses or any other affirmative matter. He denied in his Answer that he exposed the plaintiff to the herpes 2 virus and further denied telling her that he was free from the disease at the time of their encounter. In her discovery, plaintiff sought information regarding the defendant’s prior medical condition. The defendant objected to those discovery requests on the basis of relevance and protected by physician-patient privilege. The motion Court sustained defendant’s objections on the grounds of physician-patient privilege. This left the plaintiff with her only recourse of asking the Court to compel the defendant to submit to a Rule 215 physical examination of the defendant that would include a diagnostic blood test, which would definitively rule or rule out that the defendant was infected with the herpes 2 virus. Defendant filed a written response to the Motion for Rule 215 Examination claiming that he had not placed his physical condition in controversy; that the plaintiff failed to show good cause to justify an order requiring him to undergo evasive testing and that the plaintiff’s motion was simply an attempt to circumvent the physician-patient privilege. Defendant further argued that the compulsory examination would violate his right to privacy under the Illinois Constitution.

After extensive argument on the motion, the Circuit Court entered an Order granting plaintiff’s Rule 215 Motion and ordered the parties to schedule the examination by a date certain. The defendant refused to schedule the examination but instead sought a friendly contempt order from the Court authorizing him to file a Rule 308 appeal to the Appellate Court appealing the Court’s order compelling him to submit to the exam. The Court found defendant, Weinzweig in civil contempt and ordered a sanction of $1,000. Defendant filed his Notice of Appeal shortly thereafter.

In a decision filed on February 24, 2015, authored by late Justice, Laura Liu, the Appellate Court found that the Circuit Court had the authority to compel the Rule 215 Examination of defendant Weinzweig relying upon the case of Estate of Stevenson, 44 Ill. 2d 525 (1970), that the defendant had placed his physical condition in controversy by virtue of the conflicting medical testimony, reports and other documentation being offered as proof and that such an examination would “materially aid in the just determination of the case.” The Court in Weinzweig relied upon the declaration filed by the defendant and the voluntary submittal of his medical records as constituting more than a denial of an unsubstantiated allegation on the part of the plaintiff and by doing so, the defendant placed his physical condition squarely at issue in an effort to rebut the plaintiff’s claim. The Court further cited, under Stevenson it is irrelevant who placed defendant’s physical condition at issue as long as it is at issue. The Court then found that since the defendant’s physical condition was at issue the Circuit Court was within its sound discretion to order the Rule 215 Examination; since such an examination would materially aid in the just determination of the case. The Court further noted that there is no longer a requirement of showing the Court “good cause” which was eliminated from the Amended Supreme Court Rule 215.

After determining that the defendant had placed his physical condition at issue, the Court then moved on to address defendant’s other defenses of physician-patient privilege and constitutional right to privacy. With reference to the claim of physician-patient privilege the Court summarily ruled that the 215 Examination does not render the examining physician to be a treating physician covered by the patient-physician privilege. Citing Dole v. Shlensky, 120 Ill. 3d 807 (1983); and Salingue v. Overturf, 269 Ill. App. 3d 1102 (1995). With reference to the defendant’s final objection to the Rule 215 compelled exam that it would invade his constitutional right to privacy. The Court cited Supreme Court Rule 19(a) that requires a party challenging the constitutionality of a Statute to serve notice on the Attorney General or proper state agency in cases where the State is not a party and the defendant having failed to do so, the Court found that he has waived his claim of invasion of right to privacy. In Re the Marriage of Winter, 2013 IL App (1st) 112836.

Lastly, at the time of the appeal the defendant argued the Rule 215 Examination violated public policy, which was not part of his original argument and therefore the Court declined to consider the same. The remainder of Justice Liu’s decision dealt with the applicability of the contempt citation.

The Court then affirmed the granting of the Rule 215 Motion and remanded it to the Circuit Court for further proceedings consistent with its ruling. The matter settled shortly thereafter.