Warren Reagan (plaintiff) sought the medical records of Lloyd Searcy (defendant)in an arbitration proceeding concerning underinsured-motorist insurance coverage. Theproceedings are entitled In the Matter of the Arbitration Between: Warren and MichaelReagan vs. State Farm Insurance Company. Defendant and his medical care providersrefused to supply the medical records. Plaintiff then filed a separate petition for a rule toshow cause as to why defendant and his care providers should not be held in contempt fortheir refusals. The trial court granted defendant's motions to dismiss the petition for a ruleto show cause.

Plaintiff contends that the medical records should be discoverable in the arbitrationproceeding. He bases this contention on several theories, one of which is the holding inGleason v. St. Elizabeth Medical Center, 135 Ill. App. 3d 92, 481 N.E.2d 780 (1985). Weoverrule our decision in Gleason and affirm the dismissal of the petition.

On March 27, 1994, defendant and Michael Reagan were involved in a head-oncollision. Michael Reagan, a minor, died of injuries sustained in the accident, and he lefthis parents and three minor siblings surviving. Plaintiff is the administrator of MichaelReagan's estate. An underinsured-motorist claim is currently pending, and it involves theissue of defendant's sobriety at the time of the accident. Defendant's liability insurancecompany has already paid its policy limit of $20,000 toward settling the claim. Theinsurance company for Michael Reagan's estate also has paid its policy limit of $100,000 todefendant.

Defendant was deposed for the pending arbitration proceedings. During thedeposition, defendant stated that he had shared "a pitcher or so" of beer with a companionprior to the accident. Defendant sustained multiple injuries in the collision and was seen bydoctors at Protestant Memorial Hospital. Defendant refused to sign an authorization for therelease of those medical records.

On April 21, 1998, a subpoena requesting the medical records for defendant'streatment following the accident was served on Diana M. Warner, the medical recordssupervisor at Protestant Memorial Medical Center, Inc. On April 24, 1998, Warner refusedto honor the subpoena. As indicated earlier, plaintiff's petition for a rule to show cause wasdenied. Plaintiff has appealed.

Generally, a patient's medical records are protected by the physician-patient privilege. This privilege exists to encourage disclosure between a doctor and a patient and to protectthe patient from an invasion of privacy. People v. Bates, 169 Ill. App. 3d 218, 224, 523N.E.2d 675, 679 (1988). This is a nonconstitutional privilege that is conferred by section8-802 of the Code of Civil Procedure (735 ILCS 5/8-802 (West 1994)). The statute listsseveral exceptions that allow the disclosure of the information, despite the existence of theprivilege. 735 ILCS 5/8-802(1) through (10) (West 1994). In addition, a patient may losethe privilege by waiving it. Bates, 169 Ill. App. 3d at 224, 523 N.E.2d at 679. It isimportant to note at this time that plaintiff's brief cites to the version of the statute thatincluded the changes made by Public Act 89-7, which became effective March 9, 1995 (735ILCS 5/8-802 (West Supp. 1995)). That act was held to be unconstitutional in its entirety,in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997). We, therefore,cite to the pre-1995 version of the statute, which is still in effect.

Section 8-802 states the general privilege:

"No physician or surgeon shall be permitted to disclose any information he or shemay have acquired in attending any patient in a professional character, necessary toenable him or her professionally to serve the patient *** ." 735 ILCS 5/8-802 (West1994).

The next portion of section 8-802 lists various exceptions to that general rule. Thestatute provides that such information may be disclosed:

"(3) with the expressed consent of the patient *** [or] (4) in all actions brought byor against the patient, his or her personal representative, a beneficiary under a policyof insurance, or the executor or administrator of his or her estate wherein the patient'sphysical or mental condition is an issue[.]" 735 ILCS 5/8-802(3), (4) (West 1994).

There are additional exceptions listed in the statute, but they are inapplicable in this instance.

Plaintiff argues that he should be allowed access to defendant's medical recordsbecause exception (4) applies in this situation. Exception (4) allows for the disclosure ofsuch information "in all actions brought by or against the patient, his or her personalrepresentative, a beneficiary under a policy of insurance, or the executor or administrator ofhis or her estate wherein the patient's physical or mental condition is an issue[.]" 735 ILCS5/8-802(4) (West 1994). Specifically, plaintiff argues that both the estate itself and thebeneficiaries under the insurance policy brought the arbitration proceeding in whichdefendant's physical condition and mental condition are at issue and that, thus, defendant haswaived the privilege. However, a careful reading of the statute reveals that it is only whenthe patient, the patient's representative, or the patient's beneficiary has brought such anaction that the privilege is waived under this exception. In this proceeding, defendant is notthe person bringing the action. Thus, this argument fails. To the extent that plaintiff arguesthat the statute also provides for disclosure in actions brought by or against the patient, wenote that the "against the patient" phrase cannot apply in this case because the underinsured-motorist claim was brought against State Farm Insurance Company, not defendant.

Second, plaintiff argues that since defendant earlier brought a claim against the estateof Michael Reagan, he has waived the privilege. Plaintiff is correct that defendant made aclaim, and if plaintiff had sought the discovery of defendant's records in that case, theywould have been discoverable. But plaintiff did not seek the discovery of the records in thatcase, and that case has been settled. Only the underinsured-motorist arbitration proceedingis still pending. Plaintiff's theory that the exception is still valid because this underinsured-motorist action is merely a continuation of the claims process surrounding the collision isspeculative at best and is unsupported by any authority whatsoever.

Plaintiff argues that this case is analogous to Gleason v. St. Elizabeth Medical Center,in which the court required compliance with a subpoena to obtain the medical informationof nonparties, because their privileges had been waived in earlier cases. Gleason v. St.Elizabeth Medical Center, 135 Ill. App. 3d 92, 481 N.E.2d 780 (1985). In Gleason, eachof the nonparties had previously brought claims against the physician that Gleason chargedwith malpractice. Gleason, 135 Ill. App. 3d at 95, 481 N.E.2d at 781.

We recognize the holding in Gleason and now overrule it. The problem withGleason is that it allowed far too much access to a nonparty's medical records. By allowingthose records to be eternally available merely because the nonparty/patient had waived theprivilege in an earlier court proceeding, this court extended the theory of waiver far beyondwhat the legislature could have intended in section 8-802. By creating the physician-patientprivilege, the legislature statutorily recognized the patient's interest in maintainingconfidentiality in the relationship with his or her physician. People v. Bickham, 89 Ill. 2d1, 6, 431 N.E.2d 365, 368 (1982). This privilege is for the benefit of the patient. Bickham,89 Ill. 2d at 6, 431 N.E.2d at 368. When a plaintiff waives the privilege by filing a lawsuit,he or she waives it for that lawsuit only. Otherwise, the filing of a suit could be considereda waiver of the plaintiff's medical privilege from that point forward.

Defendant, a nonparty/patient, has not waived the privilege because he previouslymade a claim against the estate of Michael Reagan. That claim was settled. To the extentthat Gleason holds that because a patient waived the privilege in one action the privilege iswaived in any future action, we overrule that holding.

Lastly, plaintiff believes that the medical records should be made available becausethey may contain relevant evidence of defendant's intoxication. Plaintiff argues that becausethe records may contain evidence of intoxication, they could reflect on defendant's abilityto observe and recall events accurately, which has been held to be a valid reason to providesuch records. See Clarke v. Rochford, 79 Ill. App. 2d 336, 224 N.E.2d 679 (1967); Millerv. People, 216 Ill. 309, 74 N.E. 743 (1905). However, those cases are distinguishablebecause they focused on the medical records of a party. Defendant is not a party to thepending arbitration proceeding.

Several cases have dealt with the rights of nonparty patients with respect to thephysician-patient privilege. See Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850,435 N.E.2d 140 (1982); Ekstrom v. Temple, 197 Ill. App. 3d 120, 553 N.E.2d 424 (1990);House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437, 564 N.E.2d 922 (1990);Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 730, 631 N.E.2d 1186 (1994). Mostrecently, the court in In re D.H. reviewed the case law in this area and found that Illinois lawis clear that the medical records of nonparties are protected by the privilege. In re D.H., 319Ill. App. 3d 771, 774, 746 N.E.2d 274, 276 (2001). Courts have also recognized that thisprivilege may act to bar information which is relevant to the issue involved in the case. House, 206 Ill. App. 3d at 444, 564 N.E.2d at 927. Defendant is only a witness in this case;the fact that his medical records may contain relevant evidence is not enough to overcomethe privilege that protects the medical records of a nonparty.

This case does not fall into any valid exception to the physician-patient privilege, andwe conclude that the privilege was not waived. Therefore, we conclude that defendant'smedical records are not available to plaintiff in this proceeding, and we affirm the dismissalof the petition for a rule to show cause why defendant, Protestant Memorial Medical Center,Inc., and Diana M. Warner should not be held in contempt of court.

Affirmed.