Smentek v. Sheriff of Cook County et al

Filing 291

MEMORANDUM Opinion and Order. Signed by the Honorable Geraldine Soat Brown on 4/8/2014.(psm, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN SMENTEK, et al.,
Plaintiffs,
v.
SHERIFF OF COOK COUNTY and
COOK COUNTY, ILLINOIS,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 09 C 529
District Judge Joan H. Lefkow
Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER
Geraldine Soat Brown, United States Magistrate Judge
Defendant Cook County’s Motion for Protective Order to Stay Compliance with Request for
Records [226] and Plaintiffs’ Motion to Vacate Order of December 19, 2013 [247] are both granted
in part and denied in part as set out further herein.

Background
On October 30, 2013, this court entered an order granting plaintiffs’ request for additional
dental and medical records for detainees in the Cook County Department of Corrections (“the Jail”)
but limiting the number from the plaintiffs’ requested 167 detainees to a sampling totaling 33
additional detainees, in addition to the 95 detainees whose medical and dental records had previously
been produced. (Order, Oct. 30, 2013.) [Dkt 202.]1 One of the reasons for limiting the required
1

Plaintiffs’ objection to that decision was overruled by the District Judge. (Order, Mar. 4,
2014.) [Dkt 267.]

production was the undisputed burden on the County’s resources to locate, pull and copy inmate
medical and dental records.2 Defendants presented unrebutted evidence that it takes between 20
minutes and two hours to pull and scan each detainee’s medical and dental records. (Id. at 3, citing
affidavit of Linda Kampe, Director of Health Information Management for Cermak Health Services.)
On November 7, 2014, a week after that ruling, plaintiffs’ counsel served another document
request for an additional 276 grievances that had been filed by 141 detainees plus dental records for
those 141 detainees. (Pls.’ Renewed Mot. to Extend Disc. at 3 [dkt 210]; Cook County’s Resp., Ex
D [dkt 216].) Two weeks later, based in part on that request, Plaintiff moved for an extension of the
discovery cut-off, observing that the recently served discovery could not be completed by the cut-off
date, December 20, 2013. (Pls.’ Renewed Mot. to Extend Disc. at 3.)3
Meanwhile, plaintiffs’ counsel also began to send requests for batches of medical records of
detainees directly to Cermak Health Services of Cook County (“Cermak”). (Defs.’ Mot. Prot. Order,
Ex. E.) Plaintiffs’ counsel sent two letters on November 14, 2013, each asking for medical records
for 12 detainees. (Id.) The next day, plaintiffs’ counsel sent two more letters, requesting medical
records for 9 and 12 more detainees. (Id.) Within a week, plaintiffs’ counsel had requested medical
records of 78 detainees. (Id.)
Cook County then filed its motion for a protective order, asking that Cermak not be
compelled to respond to the requests. (Defs.’ Mot. Prot. Order.) Cook County argued that plaintiffs’

2

Although plaintiffs requested dental records, medical records as well as dental records
are necessary to give a complete picture of the treatment any detainee received for dental
complaints. (Order, Mar. 4, 2014 at 3-4.)
3

This court denied the motion to extend time for discovery. (Order, Dec. 19, 2013.) [Dkt
233.] Plaintiffs’ objections to that decision were overruled by the District Judge. (Order, Mar. 4,
2014 at 6.)
2

requests for so many medical records on the heels of the order denying their discovery request for
dental/medical records demonstrated that the requests were an effort to circumvent the court’s ruling
limiting discovery. Considering the sequence of events, and in light of the burden on Cermak to
respond (78 requests x 20 minutes to 2 hours = between 26 to 156 hours of Cermak employees’
time), this court granted the motion for protective order on an interim basis pending briefing of the
underlying issues. (Order, Dec. 19, 2013.) [Dkt 232.] Plaintiffs then filed their motion to vacate
the interim order (Pls.’ Mot. Vacate [dkt 247]), which the court took as part of the briefing on the
issue. (Order, Jan. 24, 2014.) [Dkt 254.] Apparently, sometime after Cook County filed its motion,
plaintiffs’ counsel requested some additional detainees’ records. (See Pls.’ Mot. Vacate, Ex. 1
(listing names not included on the letters attached to Cook County’s motion).)
Plaintiffs filed a motion for preliminary injunction on January 6, 2014. [Dkt. 236.] Attached
as a group exhibit to that motion are 53 declarations from persons who were detainees at the Jail in
2013. (Dkt 236, Ex. 11.) The declarations are formulaic; the declarants state that they filed
grievances after making health service requests about dental pain. The declarations are dated from
December 12 through December 26, 2013. (Id.)
None of the declarants are among the 195 detainees for whom plaintiffs requested
dental/medical records in August 2013. Forty declarants are on the list of 141 detainees for whom
plaintiffs sought dental/medical records in the November 7, 2013 document request. A number of
the declarants are among those whose medical records plaintiffs’ counsel requested from Cermak
in November 2013.
Plaintiffs’ motion to vacate suggests that the interim order prevents plaintiffs’ counsel from
investigating claims of clients other than class members in this case, citing one example, Jai
3

Crutcher. (Pls.’ Mot. Vacate at 3.) The request for Mr. Crutcher’s records was apparently part of
one of the batch requests for medical records including those of class members in this case. (Id., Ex.
1.) Both Cermak’s response and the response of Cook County’s counsel state that if plaintiffs’
counsel is looking for records of detainees other than for this case, plaintiffs’ counsel should advise.
(Id., Exs. 1 and 3.) There is no indication that plaintiffs’ counsel took up that suggestion.

Discussion
Plaintiffs claim that they have “an unconditional right” under the Illinois Hospital Records
Act, 735 Ill. Comp. Stat. § 5/8-2001, to receive a copy of the medical records, and that this court
lacks jurisdiction to limit their ability to do so because their requests to Cermak are not discovery
but rather investigation, for which they cite American Bank v. City of Menasha, 627 F.3d 261 (7th
Cir. 2010). (Pls.’ Resp. Order at 1) [Dkt 239.] The Illinois Hospital Records Act provides that a
private or public health care facility shall, upon the presentation of a valid authorization for release
of records signed by the patient or the patient’s legally authorized representative, allow the patient
or representative to examine the patient’s treatment records and permit copies of such records to be
made by his or her health care representative or authorized attorney. 735 Ill. Comp. Stat. § 5/82001(b). That right is not, however, “unconditional,” as plaintiffs claim. The Act requires a valid
authorization, and also requires that the person making the request reimburse the facility “at the time
of such copying for all reasonable expenses,” including a handling charge not to exceed $20 for
processing the request and other charges at rates specified in the Act. Id. at § 5/8-2001(c).4
4

The regulations under Health Insurance Portability and Accountability Act of 1996, Pub.
L. No. 104-191, 110 Stat. 1936, also provide that the patient must pay the reasonable expenses of
copying medical records. 45 C.F.R. § 164.524(c)(4).
4

Plaintiffs’ counsel’s letters to Cermak requesting records state that waivers to release medical
records are enclosed, and the court will assume, arguendo, that valid authorizations were enclosed,
although none are included with the motion. Plaintiffs’ counsel’s letters do not, however, refer to
tendering payment for expenses as set out in the Act, and so the interim order raised the question of
whether plaintiffs’ counsel had tendered payment to Cermak for the requested records. (Order, Dec.
19, 2013 at 11.) Plaintiffs’ counsel has refused to answer that question, but it is relevant to the
determination of whether plaintiffs’ requests are part of a legitimate investigation or an attempt to
circumvent the discovery limitations in this case.
The specific fee and cost schedule set out in the Illinois Hospital Records Act is an integral
part of the procedure under the Act. That fact is reinforced by the Illinois Supreme Court’s
recounting, in Solon v. Midwest Medical Records Assn., 925 N.E. 2d 1113 (Ill. 2010), of the
legislative history of an amendment to the Act regarding the $20 handling charge. The Court
observed that there is an “abundance of legislative history” regarding that $20 charge, which “was
expressly agreed upon by competing interested parties after lengthy negotiations.” Id. at 1119, 1121.
During the debates on the amendment, legislators recounted that the fee schedule, including “an
initial fee that you have to pay, a handling charge of [$20],” was the result of negotiations and
compromise among the trial lawyers, medical society, hospital society and representatives of
companies that copy records. Id. at 1120 (quoting 92d Ill. Gen. Assem., Senate Proceedings, April
5, 2001, at 226-27 (statements of Senator Cullerton, emphasis added by Court in Solon)). The Court
further observed, “Representative Turner confirmed that the $20 handling charge could be deemed
an ‘order fee’ or a ‘deposit fee’ at the time the records were requested.” Solon, 925 N. E. 2d at 1120
(citing 92d Ill. Gen. Assem., House Proceedings, May 8, 2001, at 46). Representative Turner also
5

said, “‘[T]he purpose of this is not to assist lawyers, it’s not to assist doctors. It’s simply to assist
patients . . . so that they can get copies of their own records at a reasonable cost.’” Solon, 925 N. E.
2d at 1120 (quoting 92d Ill. Gen. Assem., House Proceedings, May 8, 2001, at 47-48).
Thus, the General Assembly did not create an “unconditional” right to demand production
of medical records. Plaintiffs must pay the required statutory fee and charges for all of the records
they demand. For the 78 detainees plaintiffs have requested, the $20 handling charge alone totals
$1,560, without considering the mandatory statutory per page copying cost, which will be
substantial. For example, Cook County indicates that the medical records of Bernard Crenshaw,
whose records are part of plaintiffs’ counsel’s November 14 letter, total more than 7,000 pages.
(Cook County’s Resp. Pls.’ Objections at 5.) [Dkt 284.]
Plaintiffs cite American Bank, 627 F.3d at 265, in which the Seventh Circuit distinguished
discovery in litigation from a party’s use of a state’s public records law to investigate a client’s
claim. The Seventh Circuit noted an important distinction between the two processes: using state
statutes to investigate requires paying the costs.
For as is typical of public records statutes, the costs associated with responding to
requests for access to public records under Wisconsin’s public records law are
charged to the person making the request. . . . In any event there is no expense to the
defendant, as he doesn’t have to rummage through his files to respond to a demand
for information – at least qua defendant; . . . .
Id. at 266.
Plaintiffs’ counsel’s refusal even to discuss whether they have tendered the statutory payment
supports the conclusion that they are not using their requests in order to investigate the claims of
individual clients but as a way of getting the discovery they were unable to get in this case.
The time frames set out in the Act further demonstrate that it was not intended for the type
6

of “batch request” plaintiffs’ counsel attempted to use here. Within the course of one week,
plaintiffs’ counsel requested 78 detainees’ records. Using Ms. Kampe’s undisputed time estimate,
it could take as much as 156 hours to pull and scan those records. Cermak could only comply with
plaintiffs’ request within the presumptive 30 days provided in the Act by devoting an employee full
time to nothing but fulfilling the demand plaintiffs’ counsel made in a single week. That could not
possibly be the intended purpose of the Act, which, as Representative Turner said, is to assist
patients, not lawyers.
The circumstances of plaintiffs’ counsel’s batch requests – including the timing, the number
of requested records, the particular detainees whose records were requested, the apparent failure to
tender the required payment, and the “batch” nature of the requests themselves – point to one
conclusion: the batch requests were a direct response to the October 30, 2013 order limiting the
medical/dental records defendants are required to produce in discovery, which presaged the likely
failure of plaintiffs’ November 7, 2013 request for additional 141 detainees’ records. The court
concludes that the batch requests were, as Cook County argued, an attempt to evade the limitations
of discovery in this case.
There is no dispute that an attorney representing a client who has signed a valid authorization
and who tenders the required costs and fees is entitled to use the Illinois Hospital Records Act to
obtain the client’s medical records. But the Illinois Hospital Records Act was not intended as a
back-door form of discovery to circumvent court-ordered limitations on discovery, which is what
plaintiffs attempted here. Accordingly, plaintiffs’ counsel’s batch requests to Cermak served in
November and December 2013 are improper attempts at discovery and are quashed.
A word is required on plaintiffs’ protests that, after the plaintiffs filed the 53 declarations in
7

support of their motion for preliminary injunction, Cook County obtained the medical records of
the first 14 of those declarants and provided the records to plaintiffs’ counsel. (Pls.’ Objections to
Magistrate’s Order at 3.) [Dkt 270.] Plaintiffs’ protests are not well taken because plaintiffs
themselves, in their motion for preliminary injunction, requested that Cook County provide the
records for the 53 declarants. (Cook County’s Resp. Pls.’ Objections at 5 (citing Pls.’ Mot. Prel.
Inj. at 1).)
Plaintiffs’ problems with discovery about the medical/dental records are of their own making.
To recap, in July 2013, a firm discovery cut-off date was set after a number of extensions; that date
was December 20, 2013. Instead of heeding the District Judge’s ruling that representative evidence
would be appropriate for establishing liability (Order, Aug. 17, 2011 at 5) [dkt 93], plaintiffs’
counsel thereafter embarked on requesting large numbers of detainee medical/dental records, in
addition to the records that had previously been produced. In August 2013, plaintiffs requested
records for 195 detainees, eventually reduced to records for 167 detainees. A week after the court
pared that request down to records for 33 detainees, plaintiffs served a request for records for 141
detainees, virtually the same number the court had just rejected as excessive, and almost three times
more than the number of declarations plaintiffs eventually used to support their motion for
preliminary injunction. Plaintiffs’ counsel expended time and resources to appeal this court’s denial
of that request, but there is no evidence on the record before this court that during that time
plaintiffs’ counsel ever conferred with Cook County to narrowed their request for 141 to the 53 that
plaintiffs eventually used in the preliminary injunction motion.
A great deal of time and effort was expended on discovery related to the medical/dental
records, including significant motion practice, yet realistically, not every one of the detainees’
8

grievances and records can be presented in evidence. A targeted, focused approach to discovery
rather than plaintiffs’ broad stroke, shotgun approach could well have saved considerable time, and
effort on the part of all parties, including plaintiffs.

CONCLUSION
For the foregoing reasons, Cook County’s motion for protective order and plaintiffs’ motion
to vacate are both granted in part and denied in part, as follows: the requests for medical records
served by plaintiffs’ counsel on Cermak Health Services of Cook County in November and
December 2013 are quashed and Cermak is not required to honor those requests or any future batch
requests (that is, requests for more than one detainee’s records) that include a request for records of
any persons listed in plaintiffs’ November 7, 2013 request for production of documents. The interim
order is lifted in that Cermak is not prohibited from providing records pursuant to the Illinois
Hospital Records Act with respect to any requests for documents presented by plaintiffs’ counsel that
comply with the requirements of that Act including a valid authorization and appropriate fees and
costs.

IT IS SO ORDERED.

Geraldine Soat Brown
United States Magistrate Judge
April 8, 2014

9