Fourth Division
                                             September 24, 1998

No. 1-97-4644

MARY MANDZIARA,                          )   APPEAL FROM THE
                                         )   CIRCUIT COURT OF
     Plaintiff-Appellee-Cross-Appellant, )   COOK COUNTY.   
          v.                             )   
MICHAEL D. CANULLI,                      )
     Defendant-Appellant-Cross-Appellee, )
and                                      )
                                         )   DAVID DONNERSBERGER,
     Defendant.                          )   JUDGE PRESIDING.

     JUSTICE WOLFSON delivered the opinion of the court:

     When patients receive treatment from a mental health
professional they have a right to expect that in most
circumstances their records will be kept in confidence.  That is
the promise made by the Mental Health and Developmental
Disabilities Confidentiality Act (the Act)(740 ILCS 110/1 et seq.
(West 1994)).
     The question in this case is whether Mary Mandziara
(Mandziara) has the right to sue a lawyer who obtained and served
a subpoena for her records, which were then brought to a
courtroom and used by a judge.  We hold that she does.  For that
reason, we reverse the trial court's summary judgment in favor of
Michael Canulli (Canulli), the lawyer.  We also affirm the trial
court's denial of Canulli's petition for sanctions under Illinois
Supreme Court Rule 137 (155 Ill. 2d R. 137).
     Mary Mandziara and her first husband Earl Jursich (Jursich)
divorced in 1989.  Mandziara received sole custody of their two
     On November 17, 1992, Jursich, through his attorney Michael
Canulli, brought an emergency petition to modify child custody
before the trial court.  This petition alleged Jursich learned
that on November 6, 1992, Mandziara had attempted suicide and was
hospitalized at Northwest Community Hospital (the Hospital).  The
petition asked the court to determine Mandziara's fitness to
retain sole custody of the children.
     In connection with the petition, Canulli served a subpoena
duces tecum on the records custodian at the Hospital.  The
subpoena requested the records custodian to appear in court to
testify about Mandziara's medical records dating from January 1,
1990 to November 17, 1992.  Canulli did not obtain a court order
to serve the subpoena on the Hospital.
     On November 17, Mandziara appeared without a lawyer. 
Canulli represented Jursich.  The Hospital's records custodian,
Helen Langer (Langer), appeared in court with the subpoenaed
records on Mandziara's hospitalization, but did not give the
records to Canulli.  Instead, Canulli called Langer as a witness,
and Langer gave Mandziara's records directly to the trial court. 
The court reviewed the records in open court and then questioned
Mandziara about her hospitalization and about certain notes in
the records.  At the close of the hearing, the court awarded
temporary custody to Jursich.  Eventually, after several months,
Mandziara regained sole custody.
     On April 19, 1994, Mandziara filed a complaint against the
Hospital for releasing her records without a court order, in
violation of the Mental Health and Developmental Disabilities
Confidentiality Act.  On October 18, 1994, the trial court
granted summary judgment to the Hospital in a final and
appealable order.  Mandziara appealed.
     This court affirmed in a summary order.  See Mandziara v.
Northwest Community Hospital, No. 1-94-4045 (May 2, 1996)
(unpublished under Supreme Court Rule 23).  Although this court
acknowledged Canulli did not attach a court order to the records
subpoena, it held section 10(b) of the Act (see 740 ILCS
110/10(b) (West 1994)) protected the Hospital from liability:
               "While we do not condone the trial judge's actions
     in commenting upon Mandziara's records in open court,
     this was beyond the control of Northwest Community
     Hospital or its records custodian.  We find [the
     Hospital] did nothing more than follow section []10(b)
     of the Act in that it provided the court with
     Mandziara's medical records pursuant to a request from
     an interested party for the sole purpose of an in
     camera inspection to determine their relevance to the
     child custody issue."  Mandziara, 1-94-4045 slip op. at
     On October 20, 1994, Mandziara filed an amended complaint
against both the Hospital and Canulli.  The amended complaint
alleged Canulli violated the Act by serving a subpoena on the
Hospital without a court order.  On March 7, 1997, the trial
judge, not the judge who conducted the custody hearing, granted
summary judgment to Canulli.  Canulli filed a petition for
sanctions under Illinois Supreme Court Rule 137.  On October 20,
1997, the court denied Canulli's petition.  On November 21, 1997,
the court denied his motion to reconsider.  
     Canulli now appeals the trial court's Rule 137 ruling, and
Mandziara cross-appeals the court's summary judgment for Canulli.
     1.  Mandziara's Cross-Appeal
     Mandziara contends Canulli violated the Act by failing to
obtain a court order before serving a records subpoena on the
Hospital.  Mandziara further contends the trial court erred in
finding as a matter of law this statutory violation did not cause
her to lose sole custody.
     Appellate review of an order granting summary judgment is de
novo.  Kotarba v. Jamrozik, 283 Ill. App. 3d 595, 596, 669 N.E.2d
1185 (1996).  The appellate court must consider anew the facts
and the law related to a case to determine whether the trial
court correctly decided that no genuine issue of material fact
was present.  Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165
Ill. 2d 107, 113, 649 N.E.2d 1323 (1995); Deloney v. Board of
Education of Thornton Township, 281 Ill. App. 3d 775, 780, 666
N.E.2d 792 (1996).  If the plaintiff fails to establish any
element of the cause of action, summary judgment in favor of the
defendant is proper.  Flint v. Court Appointed Special Advocates
of DuPage County, Inc., 285 Ill. App. 3d 152, 162, 674 N.E.2d 831
     At the time Mandziara filed her complaints, the Act
               "(a) Except as provided herein, in any civil,
     criminal, administrative, or legislative proceeding, or
     in any proceeding preliminary thereto, a recipient [of
     mental health services], and a therapist on behalf and
     in the interest of a recipient, has the privilege to
     refuse to disclose and to prevent the disclosure of the
     recipient's record or communications.
               (1) Records and communications may be disclosed in
     a civil, criminal or administrative proceeding in which
     the recipient introduces his mental condition or any
     aspect of his services received for such condition as
     an element of his claim or defense, if and only to the
     extent the court in which the proceedings have been
     brought, *** finds, after in camera examination of
     testimony or other evidence, that it is relevant,
     probative, not unduly prejudicial or inflammatory, and
     otherwise clearly admissible; that other satisfactory
     evidence is demonstrably unsatisfactory as evidence of
     the facts sought to be established by such evidence;
     and that disclosure is more important to the interests
     of substantial justice than protection from injury to
     the therapist-recipient relationship or to the
     recipient or other whom disclosure is likely to harm.
               (b) Before a disclosure is made under subsection
     (a), any party to the proceeding or another interested
     person may request an in camera review of the record or
     communication to be disclosed.  The court ***
     conducting the proceeding may hold an in camera review
     on its own motion.  ***  The court *** may prevent
     disclosure or limit disclosure to the extent that other
     admissible evidence is sufficient to establish the
     facts in issue.  The court *** may enter such order as
     may be necessary to protect the confidentiality,
     privacy, and safety of the recipient ***.
               (d) No party to any proceeding described under ***
     subsection (a) ***, nor his or her attorney, shall
     serve a subpoena seeking to obtain access to records or
     communications under this Act unless the subpoena is
     accompanied by a written order issued by a judge,
     authorizing the disclosure of the records or the
     issuance of the subpoena.  No person shall comply with
     a subpoena for records or communications under this
     Act, unless the subpoena is accompanied by a written
     order authorizing the issuance of the subpoena or the
     disclosure of the records."  740 ILCS 110/10 (West
     The Act further provides, "Any person aggrieved by a
violation of this Act may sue for damages, an injunction, or
other appropriate relief."  740 ILCS 110/15 (West 1994).  
     The reasons for protecting mental health records were
described in Laurent v. Brelji, 74 Ill. App. 3d 214, 217, 392
N.E.2d 929 (1979):
               "Presumably, the patient in psychotherapeutic
     treatment reveals the most private and secret aspects
     of his mind and soul.  To casually allow public
     disclosure of such would desecrate any notion of an
     individual's right to privacy.  At the same time,
     confidentiality is essential to the treatment process
     itself, which can be truly effective only when there is
     complete candor and revelation by the patient. 
     Finally, confidentiality provides proper assurances and
     inducement for persons who need treatment to seek it."
     Here, Mandziara correctly relies on Renzi v. Morrison, 249
Ill. App. 3d 5, 618 N.E.2d 794 (1993).  In Renzi, the plaintiff
was a psychiatric patient of the defendant.  After the
plaintiff's husband spoke with the defendant, he filed a divorce
petition and an emergency petition for temporary child custody. 
The defendant voluntarily appeared at the custody hearing to
testify for the plaintiff's husband.  The trial court allowed the
defendant to testify, and the defendant revealed information that
was contained in the plaintiff's confidential mental health
records.  Based on this testimony, the trial court awarded
temporary custody to the plaintiff's husband.  Later, the
plaintiff filed an action for damages based on the defendant's
violation of the Act.  The trial court denied the defendant's
motion to dismiss based on common law witness immunity.
     This court affirmed.  We held section 10 grants the
recipient of services a privilege to refuse or prevent
disclosure.  Renzi, 249 Ill. App. 3d at 8.  Any common law right
to witness immunity that might exist "must give way" to that
statutory privilege.  Renzi, 249 Ill. App. 3d at 8.  There was no
testimonial privilege in Renzi because the psychiatrist appeared
voluntarily and offered to testify for Renzi's husband.  Renzi,
249 Ill. App. 3d at 9.  The Act, we said, provides safeguards to
balance a patient's privacy with the trial court's truth-seeking
function.  Renzi, 249 Ill. App. 3d at 8.
     The instant case and Renzi share several similarities. 
Although the defendant in Renzi testified voluntarily, while
Langer testified pursuant to Canulli's subpoena, both the
defendant in Renzi and Canulli contributed to the unauthorized
disclosure of confidential mental health records.  Langer, a
records custodian, obeyed the subpoena by appearing in court with
Mandziara's records (without a court order), and the trial court
reviewed the subpoenaed records in open court on the record, not
in camera.
     Canulli contends he actually complied with the legislative
intent of ensuring confidentiality by requesting that the
Hospital's records custodian produce the records to the trial
court for in camera review.  That was not compliance.  In every
case, "*** subpoenaed material is ordinarily to be delivered
directly to the court because the subpoena is a judicial process
or writ of the court."  People v. Kaiser, 239 Ill. App. 3d 295,
301, 606 N.E.2d 695 (1992).  Mental health records initially
would appear before the court, regardless of whether Canulli
sought access for himself or Jursich.  Canulli knew or should
have known disclosure would occur once the records reached the
     Canulli's subpoena duces tecum asked Langer to appear in
court on November 17, 1992 to testify.  The subpoena also
included a second page (labeled "Exhibit 'A'"), calling for
Mandziara's mental health records that Canulli wanted Langer to
bring to court.  Canulli requested, inter alia, "Any and all
admission or discharge records for any inpatient, outpatient or
other care and treatment for [Mandziara];" "Any and all medical
records relating to [Mandziara] for inpatient, outpatient or
other care or treatment;" "Any and all diagnosis, treatment or
prognosis by for or relating to [Mandziara] physically,
psychologically, emotionally or otherwise;" "Any and all other
health related records, however[] labeled or described concerning
[Mandziara] not otherwise produced."  Canulli limited the scope
of his list: "The relative time period for the Notice for the
hospital is January 1, 1990 to date of hearing."  Nothing in this
remarkably broad subpoena limits production of the records to an
in camera hearing by a judge.  Nor does the subpoena prohibit
disclosure to Canulli in the first instance.  And, of course, it
extends far beyond the purported suicide attempt of November 6,
     Canulli's insistence that he did not seek access is
contradicted by the record.  At the emergency custody hearing on
November 17, 1992, Canulli asked, "Judge, would the Court allow
me also to be with the Court in reviewing the records?"  Canulli
clearly sought access for himself and Jursich by issuing a
records subpoena.
     The Act is "*** carefully drawn to maintain the
confidentiality of mental health records except in the specific
circumstances specifically enumerated."  Sassali v. Rockford
Memorial Hospital, 296 Ill. App. 3d 80, 84-85, 693 N.E.2d 1287
(1998).  The General Assembly has made a strong statement about
the importance of keeping mental health records confidential.  If
we were to hold Canulli did not violate the Act merely because he
did not look at Mandziara's records, we would be rewriting the
statute, effectively eroding unmistakable legislative intent
under the weight of judicial fiat.
     Section 10(d) clearly says: no subpoenas are to be served
without court orders.  Nothing in section 10(d) excuses a court
order when the records are first examined by the trial judge. 
Canulli's subpoena violated the specific terms of section 10(d)
because he served it without first obtaining a court order. 
Although Canulli no doubt was trying to protect his client's
children, his  motives have nothing to do with the legislative
judgment that mental health records should not be surrendered as
a matter of course.  Whether the records should leave the
hospital is a decision for an impartial judge to make, not a
lawyer representing a client.  
     Had Canulli sought the proper court order, with notice to
Mandziara, the trial judge may have been alterted to the
inappropriateness of the subpoena.  Or he may have signed the
order contemplated by section 10(d).  The only way to find out
was to ask.
     Section 10(a)(1) allows disclosure of confidential mental
health records only when the patient introduces her mental health
as an element of her claim or defense.  740 ILCS 110/10(a)(1)
(West 1994).  "A recipient [of mental health services] waives the
confidentiality of her records only if she affirmatively places
her own mental condition at issue."  Sassali, 296 Ill. App. 3d at
83 (State's filing of involuntary admission petition is not a
waiver by patient).  Disclosure under both section 10(b) and
section 10(d) is subject to the threshold requirements of section
10(a)(1).  Mandziara did not introduce the issue of her mental
health.  Her husband, through his lawyer, did.  Because section
10(a)(1) was not satisfied, there could be no waiver.  Disclosure
under either section 10(b) or section 10(d) was not authorized by
the statute.
     We note this is not a case where strict compliance with
section 10(a)(1) can be excused because the recipient of
services: "*** seeks to utilize those protections as a sword
rather than a shield to prevent disclosure of relevant,
probative, admissible, and not unduly prejudicial evidence that
has the potential to fully negate the claim plaintiff asserted
against defendants and absolve them of liability."  D.C. v. S.A.,
178 Ill. 2d 551, 570, 687 N.E.2d 1032 (1997).  Mandziara did not
bring this action.  She did not ask to be brought into a
courtroom to face a challenge to the custody of her children.
     Nor were the other provisions of section 10(a)(1) followed
in this case.  Section 10(a)(1) presents a sophisticated
balancing test in which "*** the trial court must make several
findings regarding the use of the records, including that they
are 'relevant, probative, not unduly prejudicial or inflammatory,
and otherwise clearly admissible.'"  Sassali, 296 Ill. App. 3d at
83 (quoting section 10(a)(1)).  In inexplicable haste, the trial
court in the custody hearing repeatedly asked for Mandziara's
records to "*** obviate the need for a hearing."  The court never
considered admissibility nor did it weigh Mandziara's privacy
interests with "the interests of substantial justice."  740 ILCS
110/10(a)(1) (West 1994). 
     Langer handed the records to the court, and the judge
reviewed them on the record in open court, not in camera.  The
court improperly disclosed confidential mental health records
without meeting the threshold of section 10(a)(1).  If Canulli
had obtained judicial review before the subpoena reached Langer,
the unauthorized disclosure could not have occurred.  And while
Canulli's actions "*** may have placed the records into the hands
of the person who would have, in all likelihood, eventually
received them, that fact goes only to the question of damages and
not to the propriety of the disclosure itself."  Sassali, 296
Ill. App. 3d at 85.
     We also note the trial court's discomfort with the fact
Mandziara was not represented by a lawyer.  In fact, the judge
said, "Ma'am, I think you should have a lawyer."  We agree.  A
short continuance for that purpose would have been desirable.
     The March 7, 1997 order granting summary judgment to Canulli
does not specifically address causation and damages issues raised
by the parties to this appeal.  Nor do we have a transcript of
the proceedings at the time summary judgment was granted to
Canulli.  We have not been made privy to that trial judge's
     The record clearly shows the judge who conducted the custody
hearing relied only on the subpoenaed hospital records when he
awarded temporary custody of the children to Jursich.  No other
evidence was received.  If the trial judge who later granted
summary judgment did not find summary judgment would be
inappropriate on the causation issue, we do.
     We also believe the damages issue survives a summary
judgment motion.  Section 15 of the Act provides for a damages
claim by a person aggrieved by a violation of the Act.  We have
said: "The statute clearly indicates the legislature intended to
modify absolute common law witness immunity in order to provide a
remedy of damages against persons who violate the act."  Renzi,
249 Ill. App. 3d at 8.  We believe the same legislative intent
applies to those who are aggrieved by any violation of section
10(a)(1) or section 10(d).  The nature and extent of those
damages are matters to be determined on another day.  See Person
v. Behnke, 242 Ill. App. 3d 933, 937, 611 N.E.2d 1350 (1993)(loss
of custody of a child is a compensable injury in a legal
malpractice claim).
     Mandziara's appeal in this case concerns only section 10(d)
of the Act.  We need not revisit our summary order in Mandziara's
earlier appeal of her unsuccessful claim against the Hospital. 
The order did not refer to section 10(d).  Nothing we say here
should be taken as a statement regarding the correctness of our
earlier order.
     2.  Canulli's Appeal
     Canulli contends Mandziara's amended complaint contains
allegations which demonstrate Mandziara and her attorney failed
to investigate whether Canulli received and disclosed the
subpoenaed records.  Canulli further contends the trial court
abused its discretion in denying his Rule 137 sanctions petition.
     Rule 137 serves as a bulwark against truly frivolous
litigation, not as a penalty against unsuccessful litigants.  See
Fremarek v. John Hancock Mutual Life Insurance Co., 272 Ill. App.
3d 1067, 1074, 651 N.E.2d 601 (1995).  The trial court must
employ an objective standard to determine whether a party made a
reasonable inquiry; subjective good faith is insufficient to meet
the burden of Rule 137.  Edwards v. Estate of Harrison, 235 Ill.
App. 3d 213, 221, 601 N.E.2d 862 (1992); In re Marriage of
Irvine, 215 Ill. App. 3d 629, 638, 577 N.E.2d 462 (1991).  
     The trial court's ruling on Rule 137 sanctions is entitled
to considerable deference on review, and this court will not
disturb a sanctions ruling absent an abuse of discretion. 
Speigel v. Hollywood Towers Condominium Ass'n, 283 Ill. App. 3d
992, 1001, 671 N.E.2d 350 (1996); Espevik v. Kaye, 277 Ill. App.
3d 689, 697, 660 N.E.2d 1309 (1996).  A trial court exceeds its
discretion on sanctions only where no reasonable person would
take the view adopted by it.  Lewy v. Koeckritz International,
Inc., 211 Ill. App. 3d 330, 334-35, 570 N.E.2d 361 (1991).
     The trial court did not abuse its discretion in denying
Canulli's sanctions petition.  Because Canulli violated the Act
when he served a records subpoena on the Hospital without a court
order, Mandziara's claim under the Act was factually and legally
viable.  Additionally, although Canulli contends Mandziara's
amended complaint erroneously alleges Canulli received, produced,
and disclosed the subpoenaed records in court, Langer appeared
with the records in court only after receiving Canulli's 
subpoena.  Disclosure of the records was predictable, and Canulli
either knew it or should have known it.  Mandziara's complaint
was close enough.
     Canulli also contends the trial court's ruling violated Rule
137 because the record does not include special findings.  In
denying Canulli's sanctions petition, the trial court said:
               "Based on my reading of [Rule 137] *** I find
     there is no real showing of unreasonableness in
     [Mandziara's] inquiry.  I think there is a basis for it
     in fact and in law.  
               And the fact that there was summary judgment
     motion which was granted basically supported the belief
     that issues of fact and law can be and are decided by
     summary judgment motions, and that I don't see
     unreasonable conduct here.  So, your motion for
     sanctions is denied."
     Rule 137 on its face only requires the court to enunciate
its reasons for granting sanctions, not for denying them.  See
155 Ill. 2d R. 137; accord In re Marriage of Schneider, No. 1-96-
1822 (June 30, 1998); but see North Shore Sign Co. v. Signature
Design Group, Inc., 237 Ill. App. 3d 782, 791, 604 N.E.2d 1157
(1992)("*** we believe the trial court must at least express
succinctly the basis for its decision even when it denies a
motion for sanctions.")  At any rate, the trial court's order was
correct and was not an abuse of discretion.
      The trial court did not abuse its discretion in denying
Canulli's sanctions petition, and the trial court's ruling in the
appeal is affirmed.  However, the trial court incorrectly granted
summary judgment to Canulli on Mandziara's amended complaint, and
on cross-appeal that order is reversed and remanded for
proceedings consistent with this court's decision.
     SOUTH, P.J. and McNAMARA, J., concur.