FIFTH DIVISION
March 29, 2002

JUSTICE GREIMAN delivered the opinion of the court:

The plaintiff, Ayesha El-Amin, filed this medical malpractice action seeking recoveryof damages for the death of her infant son pursuant to the Wrongful Death Act (740 ILCS180/0.01 (West 2000)) and the Survival Act (755 ILCS 5/27-6 (West 2000)). She alleges thatdefendant, Mary Dempsey, failed to recognize the signs and symptoms of hyperbilirubinemiaand failed to inform the codefendant doctors of the child's signs and symptoms ofhyperbilirubinemia during her child's second and third days of life.

During the course of discovery, defendant Dempsey issued a subpoena for all themedical records of plaintiff El-Amin at the University of Illinois Hospital. The plaintiffmoved to quash the subpoena asserting that such discovery would violate her physician-patient privilege and her right to privacy. At the hearing on plaintiff's motion, Dempseywithdrew her request for all of El-Amin's medical records and narrowed her request toinclude only the records relating to prenatal care from the period during which El-Amin waspregnant with her son. The trial court granted El-Amin's motion to quash, without prejudice,and requested the parties brief and argue the plaintiff's motion to quash Dempsey's narrowedrequest for El-Amin's prenatal care records. On March 8, 2001, the court entered an orderquashing Dempsey's proposed subpoena despite Dempsey's limited request of only theplaintiff's prenatal care records for the term of her pregnancy.

On June 7, 2001, the court granted Dempsey's motion to certify the following questionof law for interlocutory appeal regarding the discoverability of El-Amin's prenatal carerecords:

"Whether a medical malpractice defendant is entitled to obtain medicalrecords pertaining to the prenatal care rendered to the plaintiff's decedent'smother during the term of her pregnancy with plaintiff's decedent, despite themother's invocation of the physician-patient privilege and a right to privacy,where (1) the mother is both the plaintiff who filed the wrongful death causeof action on behalf of the decedent's estate and a beneficiary to the decedent'sestate; and (2) where the plaintiff's decedent's death is alleged to have resulted16 days after the decedent's birth as a result of the defendants' allegedlynegligent care rendered in the first three days of the decedent's life[.]"

On July 30, 2001, we granted Dempsey's application for leave to appeal pursuant to SupremeCourt Rule 308 (155 Ill. 2d R. 308). For the reasons that follow, we answer that certifiedquestion in the affirmative.

On May 8, 1998, El-Amin gave birth to her son Na'eem Shahid in her home. Codefendant Dr. Zumhagen delivered the infant at approximately 3 a.m. On May 9 and May10 of 1998, Dempsey evaluated the mother and child in the home and determined that thebaby was jaundiced. On May 11, 1998, the child was admitted to the University of IllinoisHospital, where the child was diagnosed with hyperbilirubinemia and kernicterus. Theplaintiff's decedent was discharged from the hospital on May 16, 1998. On May 24, 1998, theplaintiff's decedent was taken to the University of Chicago Hospital, where the infant waspronounced dead. A Cook County medical examiner listed the cause of death as "SuddenInfant Death Syndrome."

On May 12, 2000, El-Amin filed a multiple-count complaint, and in her first amendedcomplaint, she alleged that Dempsey and certain other physician and corporate defendantswere guilty of medical negligence that resulted in the death of her son. In response toDempsey's interrogatories, the plaintiff disclosed that she had received prenatal care atWomen's Health and Associates (affiliated with the University of Illinois Hospital) during thecourse of her pregnancy.

On November 6, 2000, Dempsey caused a subpoena to be issued to the University ofIllinois Hospital requesting "any and all" of El-Amin's medical records. On November 13,2000, El-Amin presented an emergency motion to quash Dempsey's subpoena. In support ofher emergency motion to quash, El-Amin made three arguments. First, she argued that shewas only a nominal plaintiff and that she had not placed her medical condition at issue byfiling suit. Second, she argued that her medical records were nondiscoverable because thedisclosure of her medical records would violate her constitutional right to privacy. Lastly, sheasserted that the disclosure of her records would violate the physician-patient privilege, whichshe claims she did not waive. On November 13, 2000, the trial court granted El-Amin'smotion to quash without prejudice. At that time, Dempsey proposed a narrower subpoenarequest for El-Amin's prenatal medical records only for the period that she was pregnant.

In response to Dempsey's new subpoena request, the court entered a briefing scheduleregarding the discoverability of El-Amin's medical records for the period of her pregnancy. On March 8, 2001, however, the court entered an order quashing Dempsey's proposedsubpoena.

Thereafter, Dempsey filed a motion pursuant to Supreme Court Rule 308 (155 Ill. 2dR. 308) requesting the trial court to certify a question of law regarding the discoverability ofEl-Amin's prenatal care records during the term of her pregnancy. On June 7, 2001, the courtgranted Dempsey's motion and certified a question of law for interlocutory appeal, finding asubstantial ground for a difference of opinion as to the court's order of March 8, 2001.

The standard of review of an interlocutory appeal, by permission of a certifiedquestion, is de novo. Moriarty v. Greene, 315 Ill. App. 3d 225, 231 (2000). On appeal,Dempsey asserts that she is entitled to obtain the medical records of the plaintiff during thecourse of her pregnancy with her decedent. She asserts that El-Amin placed at issue theprenatal care afforded to the decedent by filing a medical malpractice claim against thedefendants for injuries suffered by the decedent. In support of this assertion, she raises threearguments. First, she claims that inasmuch as the question presented for review is one of firstimpression, this court should find, as New York and California courts have, that the prenatalcare records of a mother are inseparable from the prenatal care records of an infant plaintiff. Thus, Dempsey argues, El-Amin waived either her own or her infant's physician-patientprivilege with respect to those records by filing a medical malpractice lawsuit on behalf of herdeceased infant and, therefore, those records are discoverable. Secondly and alternatively,she argues that the current law of the state compels an identical result. Lastly, she claims thatthe Illinois Constitution affords only a limited right to privacy, which is inapplicable to whatshe terms a "reasonable" discovery request for the plaintiff's records in this case. Since no Illinois court has squarely addressed this question, for guidance in ourdecision Dempsey points to similar decisions in New York and California that have held thata mother may not prevent medical malpractice defendants from obtaining the prenatal carerecords for the period during which the mother was pregnant with the infant plaintiff. In bothstates, in fact, courts have held that prenatal care records are not exclusively those of themother but also belong equally to the infant. Accordingly, by filing such a medicalmalpractice action, either the mother or the infant plaintiff through his mother waives thephysician-patient privilege with respect to prenatal care records. See, e.g., Scharlack v.Richmond Memorial Hospital, 102 A.D.2d 886, 888, 477 N.Y.S.2d 184, 187 (1984) (holdingthat the mother "can be deemed to have waived the physician-patient privilege only withrespect to the medical history and records pertaining to the period when the plaintiff was inutero, during which time there could be no severance of the infant's prenatal history from hismother's medical history"). See also Hughson v. St. Francis Hospital of Port Jervis, 93A.D.2d 491, 500, 463 N.Y.S.2d 224, 231 (1983); Burgos v. Flower & Fifth Avenue Hospital,108 Misc. 2d 225, 437 N.Y.S.2d 218 (1980).

Moreover, in Yetman v. St. Charles Hospital, 112 A.D.2d 297, 491 N.Y.S.2d 742(1985), the New York Court of Appeals found that even in an instance where a medicalmalpractice suit was filed on behalf of an infant by his father, the mother's prenatal carerecords that were kept during the course of her pregnancy with the infant plaintiff werediscoverable. Specifically, Yetman held that "case law clearly holds that the mother's medicalrecords pertaining to the period when the plaintiff was in utero are discoverable upon thetheory of impossibility of severance." Yetman, 112 A.D.2d at 298, 491 N.Y.S.2d at 744-45.

In a more recent decision, the Supreme Court of Suffolk County, Appellate Division,held that in such instances, a mother does not waive her own physician-patient privilege withrespect to the prenatal care records. Rather, she waives her infant's physician-patientprivilege by filing the suit on the infant's behalf. Spratt v. Rochelson, 165 Misc. 2d 535, 625N.Y.S.2d 827 (1994). The court held, "[b]y commencing this action on behalf of Nicholas[the infant] and placing his physical condition in controversy thereby, Rosemary Spratteffectively waived Nicholas' physician/patient privilege (see Tiborsky v. Martorella, 188A.D.2d 795, 591 N.Y.S.2d 547 [(1992)]). As such, defendant became entitled to disclosureof records, reports, and other items pertaining to plaintiff's injuries, diagnosis, and treatment(see Pizzo v. Bunora, 89 A.D.2d 1013, 454 N.Y.S.2d 455 [(1982)])." Spratt, 165 Misc. 2d at538-39, 625 N.Y.S.2d at 829-30.

Similarly, in Palay v. Superior Court, 18 Cal. App. 4th 919, 933, 22 Cal. Rptr. 2d 839,848 (1993), the California Court of Appeals held that a mother's constitutional right ofprivacy is not absolute. There, the court determined that a mother's right to privacy in hermedical records did not prevent the disclosure of her prenatal care records in a medicalmalpractice action brought on behalf of her infant. Palay, 18 Cal. App. 4th at 934, 22 Cal.Rptr. 2d at 848-49.

Ultimately, Dempsey asks us to find, as New York and California courts have, that El-Amin impliedly waived her physician-patient privilege with respect to her prenatal carerecords for the period her son was in utero by filing a medical malpractice action on hisbehalf, or that El-Amin has waived her deceased infant's physician-patient privilege withrespect to his prenatal care records while he was in utero for the same reasons and because hisrecords are inseparable from his mother's records.

Alternatively, Dempsey argues that Illinois has previously addressed the issue. InPetrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (1986), we found that "when apatient files suit, he implicitly consents to his physician releasing any of the medicalinformation related to the mental or physical condition which the patient has placed at issuein the lawsuit." Petrillo, 148 Ill. App. 3d at 591. Correlatively, Dempsey argues that plaintiffplaced the health of the plaintiff's decedent at issue by filing this lawsuit. And because thoserecords are inextricably linked to and address the health and condition of the plaintiff'sdecedent during the prenatal period, the plaintiff has placed her own medical records at issuefor the duration of the pregnancy. As a result, Dempsey asserts that she is entitled to reviewthe records of the prenatal care of the plaintiff, which are unquestionably "related to themental or physical condition" of the plaintiff's decedent.

Lastly, Dempsey addresses the plaintiff's argument at the trial level that the IllinoisSupreme Court, in Kunkel v. Walton, 179 Ill. 2d 519 (1997), held that even a person makinga claim for bodily injury or disease still has the right to privacy. In Kunkel, the court declaredsection 2-1103(a) of Illinois Code of Civil Procedure (735 ILCS 5/2-1103(a) (West 1996)) tobe unconstitutional for mandating that "[a]ny party who by pleading alleges any claim forbodily injury or disease, including mental health injury or disease, shall be deemed to waiveany privilege between the injured person and each health care provider who has furnishedcare at any time to the injured person." (Emphasis added.) The court found that " '[a] personhas a reasonable expectation that he will not be forced to submit to a close scrutiny of hispersonal characteristics, unless for a valid reason. * * * [T]he individual's privacy interest inhis physical person * * * must be protected.' [Citation.] We believe that this privacy interestpertaining to individual physical characteristics necessarily encompasses personal medicalinformation." Kunkel, 179 Ill. 2d at 537-38.

Dempsey, however, argues that such a reading of Kunkel ignores the court's specificlanguage that the right to privacy does not protect disclosure of a person's medical recordsabsolutely. Rather, the right to privacy acts as a bar only to "unreasonable invasions ofprivacy" where "reasonableness is a function of relevance." (Emphasis omitted.) Kunkel,179 Ill. 2d at 538. In the present case, she argues, there can be no question as to the relevanceof the medical records of the prenatal care rendered to the plaintiff's decedent, whose injuriesarose in the period immediately following his birth. Ultimately, she claims, as theKunkel court stated, "[i]t is reasonable to require full disclosure of medical information that isrelevant to the issues in the lawsuit." Kunkel, 179 Ill. 2d at 538.

Plaintiff, on the other hand, asserts that defendant is simply ignoring "the great bodyof case law" dealing with the physician-patient privilege and the right of privacy thatnonparties have as well as the privileges and privacy rights that pregnant women have byvirtue of the child they are carrying. In fact, plaintiff claims, the New York and Californiacases to which Dempsey cites are actually inconsistent with the express language of thephysician-patient privilege and with the body of Illinois law.

By way of example, plaintiff notes that this court has, on numerous occasions, refusedto allow the disclosure of nonparty medical records. See, e.g., Glassman v. St. JosephHospital, 259 Ill. App. 3d 730 (1994) (plaintiff not allowed to have partial medical records ofother patients - with names and identifying numbers deleted - for any patient who underwentsurgery by the same surgeons and who experienced difficulties similar to the plaintiff);Ekstrom v. Temple, 197 Ill. App. 3d 120 (1990) (plaintiff not entitled to records of nonpartypatients, with identification information deleted, due to physician-patient privilege); Parksonv. Central Du Page Hospital, 105 Ill. App. 3d 850 (1982) (plaintiff not entitled to disclosureof nonparty patient medical records of patients who had suffered an adverse reaction to thedrug given to the plaintiff); House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437 (1990)(plaintiff not entitled to medical records of her assailant, who attacked the plaintiff in thehospital lounge, even though this court found that much of the information contained in thenonparty's medical records would be relevant to the issue involved).

More importantly, plaintiff argues that this court recently decided a very similar caseagainst the defendant's position. See In re D.H., 319 Ill. App. 3d 771 (2001). There, thedefendant sought all of the medical records of all the minor's parents and siblings. D.H., 319Ill. App. 3d at 772. Obviously, plaintiff notes, a request for all medical records of the motherwould include the prenatal records of the mother as they relate to the minor in question. However, this court refused to allow the defendant in that case to have any of the medicalrecords sought, because all of the records were of nonparties and, thus, were privileged. D.H., 319 Ill. App. 3d at 776. After D.H., plaintiff argues, it cannot be argued that Illinoisdoes not have authority for a request for the mother's prenatal records.

With regard to Dempsey's citation of Petrillo, plaintiff notes that the plaintiff therewas the patient whose medical information was in question and was the same person forwhom recovery was being sought as a result of physical injuries. Petrillo, 148 Ill. App. 3d at585. Thus, plaintiff argues, Petrillo does not address the principle at issue in the present case,because the defendant here is not seeking medical records of plaintiff's decedent, who is theonly person alleged in the complaint to have suffered physical injuries.

Rather, plaintiff asserts that D.H. is the most factually similar to the present facts. Again, there, the defendant sought the medical records of the mother, who was suing asparent and next friend of the injured minor. D.H., 319 Ill. App. 3d at 772-73. The D.H. courtheld that the mother's records were privileged, nonparty medical records. D.H., 319 Ill. App.3d at 776. Thus, El-Amin notes, even though the mother was suing on behalf of the minor-plaintiff as parent and next friend, the mother's own records were privileged. Accordingly,plaintiff argues that if we are to keep in step with D.H., we should also support theimportance of maintaining the confidentiality of medical records of people who are not theparty alleged in the complaint to have been injured.

Lastly, in response to defendant's reliance upon Kunkel, the plaintiff simply arguesthat the plain language of the physician-patient privilege prohibits a child or someone on thechild's behalf from obtaining the medical records of the mother without the mother's consent. Put another way, plaintiff asserts, if a mother chooses for any reason to withhold consent or iscompetent but unavailable, the child would not be able to get the mother's medical recordseven where such records might be important to the child's health or well-being.

For this, El-Amin claims that Illinois courts have concluded in several instances that,prior to birth, the baby a woman is carrying does not have rights that supercede the mother'srights. In Stallman v. Youngquist, 125 Ill. 2d 267 (1988), for example, the supreme courtfound that a fetus, subsequently born alive, does not have a cause of action against its motherfor the unintentional infliction of prenatal injuries. The court noted that while Illinois hasrecognized the right of the fetus to sue for the negligence of third persons (see, e.g., Renslowv. Mennonite Hospital, 67 Ill. 2d 348 (1977)), there is strong public policy in Illinois thatstates that "the law will not treat a fetus as an entity which is entirely separate from itsmother." Stallman, 125 Ill. 2d at 277. El-Amin notes that the court expressly refused tosubject to state scrutiny "all the decisions a woman must make in attempting to carry apregnancy to term," which would infringe on the woman's privacy and bodily autonomy. Stallman, 125 Ill. 2d at 278. Instead, the Stallman court specifically held that it would be alegal fiction "to treat the fetus as a separate legal person with rights hostile to and assertableagainst its mother." Stallman, 125 Ill. 2d at 278. See also In re Baby Boy Doe, 260 Ill. App.3d 392 (1994) (holding that a woman's competent choice to refuse medical treatment asinvasive as a caesarian section must be honored even in circumstances where the choicemight be harmful to the fetus and that the right to privacy was conceptually linked to the rightto bodily integrity).

The most recent expression of this court on this subject is Kunz v. South SuburbanHospital, 326 Ill. App. 3d 951 (2001). While Kunz did not address specifically the certifiedquestion set out here, it laid the groundwork for our result today; namely, that filing a medicalmalpractice lawsuit on behalf of a child waives the physician-patient privilege for recordswhen the child was in utero. In Kunz, we addressed the issue of "whether a parent who filesa medical malpractice action on behalf of one child may, by answering certain questions andraising certain issues in the course of discovery, waive the physician-patient privilege thatshields the medical records of her other children." Kunz, 326 Ill. App. 3d at 953. We thenanalyzed the decisions in Kunkel, Parkson, and D.H. and concluded "that filing a medicalmalpractice lawsuit on behalf of a child, even when a genetic cause independent of medicalmalpractice may become an issue, does not thereby waive the physician-patient privilege infavor of the child's siblings." Kunz, 326 Ill. App. 3d at 956.

Before arriving to that conclusion, we also examined and cited with approval similarNew York cases that refused to find waiver of the physician-patient privilege when a motherbrings suit on behalf of a child for injuries suffered during childbirth. We noted that inMurphy v. LoPresti, 232 A.D.2d 461, 648 N.Y.S.2d 169 (1996), the New York Court ofAppeals found that "[b]y suing in her representative capacity as the mother of the infantplaintiff, the mother did not waive her physician-patient privilege even though she alleged inthe bill of particulars that the defendants failed to record or appreciate her medical history." Murphy, 232 A.D.2d at 462, 648 N.Y.S.2d at 169; Kunz, 326 Ill. App. 3d at 955. We alsonoted that In re New York County DES Litigation, 168 A.D.2d 44, 47, 570 N.Y.S.2d 804,805 (1991), held that "[t]he mere fact that a relative, distant or near in terms of kinship, hascommenced a medical malpractice action alleging a birth defect should not subject all herrelatives to the 'long arm' reach of the law authorizing their medical histories open to all." See Kunz, 326 Ill. App. 3d at 956. Lastly, we noted that the court in Yetman, 112 A.D.2d at298, 491 N.Y.S.2d at 744-45, held that the medical history of a plaintiff's pregnancies, otherthan that of the infant plaintiff, "is a matter that falls within the scope of the physician-patientprivilege." Kunz, 326 Ill. App. 3d at 957.

After that, however, we made a special note that "[t]he Murphy court [also] held thatthe mother only waived the privilege for records when the child was in utero," and then drewthe reader's attention to the same result reached in California in Palay, 18 Cal. App. 4th at934, 22 Cal. Rptr. 2d at 848-49. (Emphasis added.) Kunz, 326 Ill. App. 3d at 955. We alsonoted the language in New York County DES that " '[t]he plaintiffs are not required to turnover their mother's medical records beyond the gestation period.' " (Emphasis added.) Kunz,326 Ill. App. 3d at 956, quoting New York County DES, 168 A.D.2d at 47, 570 N.Y.S.2d at806. Finally, we also tempered our citation of Yetman with Yetman's own caveat that "amother's medical records for the period when the infant plaintiff was in utero arediscoverable." Kunz, 326 Ill. App. 3d at 957, citing Yetman, 112 A.D.2d at 298, 491N.Y.S.2d at 744-45.

As we recognized in Kunz, "in D.H., this court found that 'New York law is inaccordance with Illinois law on the issue of whether the medical records of nonparties areprotected by the physician-patient privilege with regard to both the facts and communicationscontained therein.' D.H., 319 Ill. App. 3d at 779." Kunz, 326 Ill. App. 3d at 956. Accordingly, given Kunz's and D.H.'s approval of New York law in these situations-especially in light of Kunz's citation to New York's waiver exception to the physician-patientprivilege-we feel compelled to answer the certified question for the defendant in theaffirmative.

Of course, Kunz is only persuasive and not controlling law. The issue there waswhether the plaintiff's sibling's records were discoverable, and both New York and Illinoislaw established that no waiver of the physician-patient privilege could be found. That issueand those facts, however, are very different from the issue and facts currently before us. Here, as a practical matter, it would be impossible for anyone to obtain El-Amin's son's ownmedical records-separate from his mother's-for the time that he was in utero. In other words,the prenatal care records bearing the name of El-Amin during the period that her son was inutero are, for all purposes, the medical records of her son. Consequently, we find that thedefendant is correct that she is entitled to obtain El-Amin's son's prenatal medical records viaEl-Amin's own prenatal medical records pursuant to statute and Petrillo. Particularlyinstructive on this is Yetman, where the mother's prenatal records were found to bediscoverable, even though the husband filed the lawsuit. Yetman, 112 A.D.2d at 298, 491N.Y.S.2d at 744-45. Here, once El-Amin's child's medical condition was placed at issue inthe lawsuit, the physician-patient privilege was waived as to his prenatal medical records or,in other words, to the only relevant existing medical records - hers. And, as Kunkel noted,where the right to privacy is a bar only to "unreasonable invasions of privacy," and"reasonableness is a function of relevance," the right to privacy cannot operate as a bar in thissituation.

Moreover, plaintiff's citation of Stallman for the proposition that the rights of amother are superior to those of her subsequently born alive fetus is not supportive of herclaim. Stallman, we note, held that a fetus has no cause of action against its mother for theunintentional infliction of prenatal injuries. Stallman, 125 Ill. 2d at 278. By contrast, asdefendant notes, the matter before us is unrelated to that cause of action. Here, the plaintiff'sdecedent's cause of action is not hostile to its mother. Rather, the cause of action at issue isone for injuries of the infant brought on behalf of the infant by his mother, who is not only theadministrator of her child's estate, but also one of its primary beneficiaries as well.

For the reasons stated above, we answer the trial court's certified question in theaffirmative.

Certified question answered.

QUINN and REID, JJ., concur.