McChristian v. Brink , 2016 IL App (1st) 152674 ( 2016 )

2016 IL App (1st) 152674No. 1-15-2674
Fifth Division
September 30, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
JACQUELINE McCHRISTIAN, )
) Appeal from the Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. ) No. 09 L 8204
)
DALE BRINK, D.P.M., Individually and as an Agent ) The Honorable
and/or Employee of Dale S. Brink, D.P.M., Ltd., and as ) Janet Brosnahan,
an Agent and/or Employee of Performance Foot and ) Judge Presiding.
Ankle Center, L.L.C.; DALE S. BRINK, D.P.M., LTD., )
a Corporation; and PERFORMANCE FOOT AND )
ANKLE CENTER, L.L.C., a Corporation, )
)
Defendants-Appellees. )
______________________________________________________________________________
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justice Reyes concurred in the judgment and opinion.
Justice Lampkin dissented, with opinion.
OPINION
¶1 This is a case of first impression concerning the application of the Petrillo doctrine to the
unique facts of this case. Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 588
(1986). In this interlocutory appeal, 1 plaintiff claims that the trial court violated the Petrillo
doctrine when it permitted ex parte communications between plaintiff’s treating podiatrist
1
Pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015).
No. 1-15-2674
and the defense counsel of the Performance Foot and Ankle Center, L.L.C., (L.L.C.), which
is a defendant in this case and of which the podiatrist is a member. 2 Plaintiff asks this court a
question of first impression: whether defense counsel, who represents defendant Dr. Dale
Brink and defendant Performance Foot and Ankle Center, L.L.C., is prohibited from
conducting ex parte communications with the plaintiff’s treating podiatrist, Dr. Timothy
Krygsheld, who is also a member, and in the control group, of defendant L.L.C..
¶2 Plaintiff argues that, under the Petrillo doctrine, ex parte communications are barred
between plaintiff’s treating podiatrist and defense counsel, in order to preserve the patient’s
trust and confidence in her podiatrist, as well as to honor the podiatrist’s duty as a fiduciary
to refrain from helping the patient’s legal adversary.
¶3 Defendants argue that Petrillo does not apply to the treating podiatrist because, as a
controlling member of the L.L.C. that is sued, he is not a “third party” as understood by
Petrillo, because plaintiff consented to a lesser degree of privacy rights when she sought
treatment and subsequently sued the L.L.C., which the treating podiatrist is a member of and
where the treating podiatrist is in the control group. For the reasons that follow, we answer
the question asked of this court in the negative, with conditions, and we reverse the order of
the circuit court.
2
A podiatrist is not a physician. “[This] State has ‘long recognized podiatrists as a
separate and distinct profession of healers who are severely limited in their practice and whose
educational requirements are substantially different than those of physicians,’ and because ‘the
treatments utilized by the podiatric profession *** are substantially different from those utilized
by physicians and orthopedic surgeons ***.’ ” Dolan v. Galluzzo, 77 Ill. 2d 279, 281-82 (1979)
(quoting Dolan v. Galluzzo, 62 Ill. App. 3d 832, 836 (1978)).
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¶4 BACKGROUND
¶5 The issue arises out of a medical malpractice suit which plaintiff Jacqueline McChristian
filed against defendant Dr. Dale Brink, as well as defendant Dale S. Brink, D.P.M., Ltd., 3 his
personal corporation; and defendant L.L.C., of which Dr. Brink is a partner. All of the
doctors in the L.L.C. are podiatrists.
¶6 The complaint alleges that, beginning in June 2001, Dr. Brink treated plaintiff for
bilateral callouses on her feet. On January 29, 2003, he performed a Z-bunionectomy on
plaintiff, after which an infection developed in her great left toe. The complaint further
alleges that, on or about May 15, 2003, Dr. Brink recommended that plaintiff obtain a second
opinion from Dr. Steven Stanos regarding the ulceration of the wounds on her left foot.
Initial antibiotic treatment was unsuccessful, and the infection continued to worsen. On May
30, 2003, Dr. Brink and Dr. Timothy Krygsheld, D.P.M., performed surgery to remove the
infected hardware that had been implanted in plaintiff’s foot during the Z-bunionectomy. The
infection did not improve, and on July 14, 2003, the infection necessitated the amputation of
plaintiff’s great left toe. Subsequently, plaintiff developed chronic regional pain syndrome.
Dr. Krygsheld is now plaintiff’s treating podiatrist.
¶7 Plaintiff filed her complaint against Dr. Brink, Dale S. Brink, Ltd., and the L.L.C. on
November 17, 2009. On August 25, 2015, Dr. Brink signed an affidavit, which was attached
to defendants’ supplemental brief in support of their motion for a protective order, averring
that he, Dr. Krygsheld, and Dr. Brian Wittmayer are the three managing members of the
L.L.C.
3
In order to distinguish Dr. Brink from his personal corporation, we refer to him as “Dr. Brink”
and his personal corporation as “Brink Ltd.”
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¶8 In their answers to plaintiff’s interrogatories, defendants named Dr. Timothy Krygsheld,
plaintiff’s treating podiatrist, as an expert witness. Defendants stated in their answer that Dr.
Krygsheld was expected to testify regarding issues of liability, causation, and damages–all
matters related to his care, treatment, observations, diagnoses, and prognoses of plaintiff.
Defendants also named Vincent J. Mandracchia, D.P.M., as a controlled expert who was
expected to testify to the same issues as Dr. Krygsheld.
¶9 Defendants’ motion for a protective order states that, on August 6, 2015, defense counsel
inquired of plaintiff’s counsel as to whether plaintiff had any objection to defense counsel
communicating with Dr. Krygsheld, and plaintiff objected on the basis that it violated the
doctrine set forth in Petrillo, 148 Ill. App. 3d at 588. On August 13, 2015, defendants filed a
motion for a protective order to allow for ex parte communications between defense counsel
and Dr. Krygsheld, plaintiff’s treating podiatrist.
¶ 10 The trial court issued a written order on September 14, 2015, permitting defense counsel
to engage in ex parte communication with Dr. Krygsheld. On September 28, 2015, plaintiff
filed for leave pursuant to Illinois Supreme Court Rule 308 to appeal the trial court’s grant of
the protective order, which this court granted on October 28, 2015. This appeal follows.
¶ 11 ANALYSIS
¶ 12 This interlocutory appeal requires this court to determine whether defense counsel, who
represents defendant Dr. Brink and defendant L.L.C., is prohibited from conducting ex parte 4
4
Ex parte communications are defined as any contact between defense counsel and plaintiff’s
treating doctor outside the formal methods of discovery dictated by supreme court rules. Petrillo, 148
Ill. App. 3d at 587.
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communications with plaintiff’s treating podiatrist, who is also a member, and in the control
group, of defendant L.L.C., and to determine the extent of the ex parte communication.
¶ 13 As we already noted, plaintiff argues that, under the Petrillo doctrine, ex parte
communications are barred between plaintiff’s treating doctor and defense counsel, in order
to preserve the patient’s trust and confidence in her doctor, as well as to honor the doctor’s
duty as a fiduciary to refrain from helping the patient’s legal adversary.
¶ 14 Defendants argue that Petrillo does not apply to Dr. Krygsheld because, as a controlling
member of the L.L.C., he is not a “third party” as understood by Petrillo, because plaintiff
consented to a lesser degree of privacy rights when she sought treatment and subsequently
sued a medical corporation, where he is a member and part of its control group.
¶ 15 A. Standard of Review
¶ 16 Illinois Supreme Court Rule 308 provides a remedy of permissive appeal from
interlocutory orders where the trial court has deemed that they involve a question of law as to
which there is substantial ground for difference of opinion and where an immediate appeal
from the order may materially advance the ultimate termination of the litigation. Ill. S. Ct. R.
308 (eff. Jan. 1, 2015). We apply a de novo standard of review to legal questions presented in
an interlocutory appeal brought pursuant to Rule 308. Simmons v. Homatas, 236 Ill. 2d 459,
466 (2010). De novo consideration means that we perform the same analysis that a trial judge
would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 17 B. Doctor-Patient and Attorney-Client Privileges
¶ 18 In the case at bar, the parties ask this court, in effect, to triage two well-established
privileges: (1) the doctor-patient privilege and (2) the attorney-client privilege. The parties
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interpret the principles set forth in Petrillo differently; therefore, we will discuss this case
and its progeny in depth.
¶ 19 Petrillo was a landmark decision on doctor-patient privilege. In Petrillo, the minor
plaintiff filed a product liability suit against Syntex Laboratories, Inc., alleging that he was
injured from consuming one of its infant formulas. Petrillo, 148 Ill. App. 3d at 585. Against
the trial court’s order, defense counsel attempted to have an ex parte communication with
one of the plaintiff’s treating doctors, and the trial court found counsel in contempt of court.
Petrillo, 148 Ill. App. 3d at 584. The appellate court in Petrillo found that ex parte
communications between a plaintiff’s treating doctor and defense counsel are barred as a
matter of public policy, for they compromise the “sanctity” of the doctor-patient relationship.
Petrillo, 148 Ill. App. 3d at 588. The court found that, in obtaining information or evidence,
the defense attorney was restricted to the “regular channels of discovery,” including, but not
limited to, written interrogatories and depositions. Petrillo, 148 Ill. App. 3d at 587. The
appellate court based its reasoning on two pillars of public policy: (1) that doctors must abide
by their code of ethics, preserving the confidentiality and trust vital to the doctor-patient
relationship, and (2) that ex parte communications impair doctors’ fiduciary duties to their
patients. Petrillo, 148 Ill. App. 3d at 588.
¶ 20 In support of the confidential doctor-patient relationship, the appellate court stressed that
“ ‘every patient has a right to rely upon [his doctor’s] warranty of silence.’ ” (Emphasis in
original.) Petrillo, 148 Ill. App. 3d at 592 (quoting Hammonds v. Aetna Casualty & Surety
Co., 243 F. Supp. 793, 801 (1965)). When patients file suit, they do not nullify this warranty,
they do not implicitly consent to their doctors revealing medical confidences to parties
beyond the normal bounds of discovery, and they do not authorize doctors to divulge their
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information in ex parte communications with their legal adversaries. Petrillo, 148 Ill. App.
3d at 591. That is, the confidential doctor-patient relationship endures, even where the patient
initiates a lawsuit and assents to disclosure of pertinent information through traditional
methods of discovery. Petrillo, 148 Ill. App. 3d at 591.
¶ 21 In the case at bar, plaintiff supports her argument using the holding provided in Petrillo.
The Petrillo court found that, when a treating doctor is not named as a defendant in the
medical malpractice suit, and his care and treatment is not the basis of the suit, his ex parte
contact with defense counsel is barred, whether or not such contact is harmless or only
potentially harmful, due to the mere existence of the doctor-patient relationship. Therefore,
plaintiff argues for a clear hierarchy of doctor-patient privilege over attorney-client privilege.
In other words, plaintiff believes that the defendant-doctor’s right to defend his L.L.C. does
not eclipse the doctor-patient privilege. Plaintiff also cites a litany of cases, which have
embraced Petrillo to its fullest extent. E.g., Karsten v. McCray, 157 Ill. App. 3d 1, 14 (1987)
(barring a doctor’s testimony after the doctor engaged in ex parte communications with
defense counsel, despite the fact that the doctor-patient relationship existed only prior to the
plaintiff’s injury); Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258, 261 (1990) (finding
the doctor-patient privilege was violated at the time of an ex parte conference between the
plaintiff’s treating doctor and defense counsel, regardless of what information was actually
revealed).
¶ 22 Defendants, on the other hand, stress the significance of preserving the attorney-client
privilege. In Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 120 (1982), our
Illinois Supreme Court examined the various tests to determine which communications
between employees and agents of a corporation and their legal counsel are privileged.
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Consolidation Coal Co., 89 Ill. 2d at 120. The supreme court adopted the control group test
that has been applied in the federal system, and further explained the qualifications of a
control group member, finding that “an employee whose advisory role to top management in
a particular area is such that a decision would not normally be made without his advice or
opinion, and whose opinion in fact forms the basis of any final decision by those with actual
authority, is properly within the control group. However, the individuals upon whom he may
rely for supplying information are not members of the control group.” Consolidation Coal
Co., 89 Ill. 2d at 120. Dr. Krygsheld is one of three managing members of the L.L.C., and so
not only is his opinion sought by top management, but he is also a member of top
management himself. Dr. Krygsheld is a decision maker, and his communications with his
legal counsel is privileged. 5
¶ 23 This attorney-client privilege is “a two-way street, protecting both the client’s
communications to the attorney and the attorney’s advice to the client.” People v. Radojcic,
2013 IL 114197, ¶ 40. The attorney-client privilege recognizes that “ ‘advocacy depends
upon the lawyer being fully informed by the client’ ” (Center Partners, Ltd. v. Growth Head
5
Defendants compare the case at bar to Kendall v. Liesen, No. 13 C 3529, 2013 WL 5375527(N.D. Ill. Sept. 25, 2013), an unreported case. However, we will not cite an unreported case. State
Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co., 2015 IL App (1st)
140447, ¶ 101 (“[W]e will not cite an unreported case.”); Skokie Castings, Inc. v. Illinois Insurance
Guaranty Fund, 2012 IL App (1st) 111533, ¶ 15 (“an unreported case” is “not binding on any court”);
People v. Moore, 243 Ill. App. 3d 583, 584 (1993) (“the decision was unreported and of no
precedential value”). “Unreported decisions have no precedential value, and this is even more true for
decisions from foreign jurisdictions.” American Family Mutual Insurance Co. v. Plunkett, 2014 IL
App (1st) 131631, ¶ 38; Burnette v. Stroger, 389 Ill. App. 3d 321, 329 (2009); West American
Insurance Co. v. J.R. Construction Co., 334 Ill. App. 3d 75, 82 (2002) (a “foreign, unreported
decision *** is of no precedential value”). Specifically, with respect to unpublished federal cases, this
court has held that they do not carry any authority before an Illinois court. Lyons v. Ryan, 324 Ill.
App. 3d 1094, 1107 n.11 (2001) (“unreported federal court orders” are not “any kind of authority
before an Illinois court”); Sompolski v. Miller, 239 Ill. App. 3d 1087, 1093 (1992) (“we decline” to
follow “an unreported Federal district court decision”).
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GP, LLC, 2012 IL 113107, ¶ 31 (quoting Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc.,
189 Ill. 2d 579, 585 (2000), quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981))),
including the client’s right to formulate trial strategy, and the right to have a “full and frank
consultation.” Consolidation Coal Co., 89 Ill. 2d at 117-18. Defendants argue that preventing
Dr. Krygsheld, a control member of defendant L.L.C., from communicating with defense
counsel infringes on his ability to protect his corporation and formulate a defense to the
lawsuit. Without allowing the ex parte communication, the L.L.C. may face serious legal and
financial repercussions.
¶ 24 C. Limitations of the Petrillo Doctrine
¶ 25 Defendants argue for a narrow reading of Petrillo by relying on Burger v. Lutheran
General Hospital, 198 Ill. 2d 21, 50-60 (2001). In Burger, the Illinois Supreme Court
interpreted the Petrillo doctrine to mean that a treating doctor may not engage in ex parte
communications with third parties about the plaintiff’s medical care. Burger, 198 Ill. 2d at
45. While the events in Burger occurred in a hospital, defendants argue that an L.L.C.
medical group is similar to a hospital for the purposes of this claim. Defendants cite Burger
to support the contention that a patient seeking care from a medical corporation has
consented to reduced privacy rights, and should expect intraorganization communications
regarding care. Defendant also claims that, like a hospital, these intraorganization
communications do not qualify as third-party communications under Petrillo.
¶ 26 Further, communications among members of a medical group including their attorney are
not disclosures to third parties. Petrillo finds that the doctor-patient relationship demands that
information remain “undisclosed to third parties” (Petrillo, 148 Ill. App. 3d at 590), which
the supreme court in Burger interpreted to mean “parties who otherwise would not possess
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the information absent the disclosure.” Burger, 198 Ill. 2d at 57. The supreme court
concluded: “The hospital is not a third party with respect to its own medical information,
which is compiled by the hospital’s own caregivers.” Burger, 198 Ill. 2d at 57. Although the
L.L.C. is not a hospital, it is a corporation which provides medical care as a group. When
plaintiff decided to seek the care and treatment of a different doctor within the same medical
group, she created a conflict of interest, which was worsened when she filed suit against the
corporation of which both her legal adversary and her current treating doctor were managing
members. “The knowledge of or notice to an officer of a corporation generally is imputed to
the corporation.” People ex rel. Daley v. Warren Motors, Inc., 114 Ill. 2d 305, 320 (1986).
Plaintiff’s medical information was already in the L.L.C.’s possession when she was Dr.
Brink’s patient, long before she filed suit. Dr. Krygsheld, as one of three managing members
of the L.L.C., is not a third party to the information of his own corporation. See Burger, 198
Ill. 2d at 57; Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 120 (2000).
¶ 27 Thus, it makes sense to conclude that, once a plaintiff sues a doctor, the plaintiff
necessarily waives some of the protections afforded him by the doctor-patient privilege, and
the accused doctor would be severely hampered in his ability to defend himself if he did not
have the right to speak with his lawyer privately. This also applies to podiatrists who,
although not sued directly, are part of the control group of the corporate entity that is sued. If
we were to find that doctors who are part of the control group are bound by the doctor-patient
privilege and that they could not have ex parte communications with their lawyers, then we
would be finding that doctors who are sued in any capacity are bound by this privilege. We
cannot make that conclusion here. Petrillo does not preclude ex parte communications with
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the individuals who serve as the corporate heads and who are decision makers of the accused
medical or podiatry corporation.
¶ 28 D. Conditions
¶ 29 “ ‘[T]he recognition of a privilege does not mean that it is without conditions or
exceptions. The social policy that will prevail in many situations may run foul in others of a
different social policy, competing for supremacy.’ ” Consolidation Coal Co., 89 Ill. 2d at 117(quoting Clark v. United States, 289 U.S. 1, 13 (1933)). This case is being decided on the
narrow facts presented.
¶ 30 What we want to accomplish in every case is to balance the competing privileges at issue
in the interest of justice. In doing so, we have taken into consideration Petrillo and its
progeny, and have also considered that the purpose of the attorney-client privilege is to
encourage and promote a meaningful consultation between a client and his attorney so that
the attorney can formulate an appropriate defense to the lawsuit without prejudicing the
rights of the plaintiff. However, the ex parte communication we are granting to defendants is
not without conditions and must be considered the exception, rather than the rule. Waste
Management, Inc. v. International Surplus Lines Ins. Co., 144 Ill. 2d 178, 190 (1991).
¶ 31 Defendant designated Dr. Krygsheld as an expert witness as to liability and as a treating
podiatrist as to the nature and extent of the injuries incurred by plaintiff as a result of
defendants’ negligence. In order to provide plaintiff with the ability to obtain Dr.
Krygsheld’s testimony before an ex parte communication with the corporate attorney
concerning only the nature and extent of her injuries, we provide plaintiff the opportunity to
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take his deposition 6 on that issue only, without allowing any prior ex parte communication
by the defense. After that deposition has concluded, defense counsel will have the
opportunity to have ex parte communications with the witness concerning the liability and
causation aspect of the case. This ex parte communication will concern the issue as to
whether any of the other corporate employees or principals deviated from the standard of
care in their care and treatment of plaintiff and its resulting causation. That liability portion
of the deposition of Dr. Krygsheld will take place on another date unless the parties agree
otherwise. The liability and causation portion will occur only after the witness has reviewed
and signed the injury deposition pursuant to Illinois Supreme Court Rule 207 (eff. Jan. 1,
1996) so that the witness may speak freely with counsel for defendant L.L.C., of which he is
a member. By barring ex parte communications until after the injury deposition, we afford
plaintiff the opportunity to secure Dr. Krygsheld’s testimony on damages without coaching
by defense counsel, and to have her privacy interests adequately protected without
unnecessarily impinging upon Dr. Krygsheld’s right to assistance of counsel for the corporate
entity on the liability and causation issue.
¶ 32 CONCLUSION
¶ 33 The question that was addressed to this court was, does Petrillo prohibit a defense
counsel who represents a defendant podiatrist and defendant L.L.C. from conducting ex parte
communications with plaintiff's treating podiatrist who is a member of and in the control
group of the L.L.C.? The trial court permitted defense counsel to speak to plaintiff's treater
and designated expert for liability and causation concerning all aspects of the litigation. We
reverse that order and prohibit defense counsel from having any ex parte communication
6
Plaintiff should have the option of taking a discovery or evidentiary deposition of the witness.
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with Timothy Krygsheld, D.P.M., until plaintiff had the opportunity to take the doctor's
deposition on the issue of the nature and extent of her injury. After the deposition is
completed and signed, defense counsel may have ex parte communications with the doctor
concerning the issues of negligence and causation.
¶ 34 Certified question answered in the negative, with conditions.
¶ 35 JUSTICE LAMPKIN, dissenting.
¶ 36 I respectfully dissent. I would answer the certified question in the affirmative and reverse
the trial court’s order that granted defendants’ motion to engage in ex parte communications
with Dr. Krygsheld. Petrillo held that ex parte conferences between defense counsel and a
plaintiff’s treating physician are prohibited as against public policy because they jeopardize
the sanctity of the confidential and fiducial physician-patient relationship. 148 Ill. App. 3d at
588. Although the factual situation in Petrillo is distinguishable from the instant case, I
believe the reasoning behind Petrillo is equally applicable here. Accordingly, I would find
that Petrillo prohibits defense counsel, who represents defendants Dr. Brink and Performance
Foot and Ankle Center, L.L.C. (PFAC), from conducting ex parte communications with
plaintiff’s treating physician, Dr. Krygsheld, who is a managing member of PFAC.
¶ 37 Plaintiff’s medical malpractice claim alleged she sustained permanent injuries as a result
of Dr. Brink’s January 2003 Z-bunionectomy, after which plaintiff developed an infection. In
May 2003, Drs. Brink and Krygsheld removed the infected hardware that had been implanted
in plaintiff’s foot, and thereafter plaintiff saw Dr. Krygsheld for post-surgical appointments.
Dr. Krygsheld is not named as a defendant. He is a managing member of PFAC, along with
Drs. Brink and Wittmayer. There is no dispute that defendant Dr. Brink, and not Dr.
Krygsheld, is the physician for whose conduct defendant PFAC is allegedly liable.
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¶ 38 Illinois public policy favors the existence of a confidential and fiduciary relationship
between the physician and the patient, and this policy is reflected in the medical profession’s
code of ethics and the fiduciary relationship between physicians and patients. Id. at 587-88.
Application of Petrillo here would encourage a continuing dialogue between patients and
their physicians, whereas a holding that Petrillo does not apply would greatly discourage
unconstrained communication between a patient being treated at a medical entity and the
physician actually treating that patient. See Ritter v. Rush-Presbyterian-St. Luke’s Medical
Center, 177 Ill. App. 3d 313, 317 (1988). Furthermore, the application of Petrillo here would
not prevent PFAC from communicating with the physician allegedly responsible for
plaintiff’s injuries and thus would not prevent PFAC from defending itself from liability. Id.
at 317-18 (the hospital’s right to defend itself does not justify an abrogation of the physician-
patient privilege when the hospital sought to communicate with employee-physicians whose
conduct was not a basis for liability as provided for in the complaint); Morgan v. County of
Cook, 252 Ill. App. 3d 947, 954 (1993) (the defendant hospital is included within the
physician-patient privilege when the patient attempts to hold the hospital vicariously liable
for the conduct of the treating physician, and the patient has impliedly consented to the
release of his medical information to the hospital’s attorneys); Aylward v. Settecase, 409 Ill.
App. 3d 831, 837 (2011) (where a patient intended to hold his treating physician and a
medical clinic, which was the physician’s employer, liable for the physician’s alleged
negligence, the clinic could not engage in ex parte communications with its employees
pursuant to the physician-patient privilege unless and until the actions of the clinic’s
employees were alleged to be a basis for the patient’s injuries).
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¶ 39 The holdings in Ritter and Morgan are applicable in the instant case notwithstanding the
enactment of certain provisions of the Hospital Licensing Act (HLA) (210 ILCS 85/6.17(d),
(e) (West 2000)) that created a Petrillo exception for hospitals. See Burger v. Lutheran
General Hospital, 198 Ill. 2d 21 (2001) (the statutory provisions of the HLA concerning the
authorized limited communication between the hospital’s counsel and medical staff members
regarding a patient’s care, even though those staff members were not named as defendants in
the patient’s lawsuit, were constitutional); In re Medical Malpractice Cases in Law Division,
337 Ill. App. 3d 1016, 1023-25 (2003) (within the narrow parameters set forth in subsections
6.17(d) and (e) of the HLA, a defendant hospital’s counsel and employees and agents
responsible for peer review, defense of claims and risk management may communicate ex
parte with the hospital’s employees or affiliates who provided health care or treatment to the
plaintiff patient even though such care or treatment was not alleged to be the cause of the
patient’s injuries). This HLA statutory exception applies only to hospitals, and there is no
basis to extend this exception by judicial fiat to L.L.C.s or corporations when the legislature
clearly declined to do so.
¶ 40 “At the very heart of every fiduciary relationship, including that between a patient and his
physician, there exists an atmosphere of trust, loyalty, and faith in the discretion of a
fiduciary.” Petrillo, 148 Ill. App. 3d at 595. The fiduciary relationship between the physician
and the patient requires, at the very minimum, that the patient who files suit has a right to rest
assured that the physician will act in good faith while at the same time complying with court-
ordered discovery. Id. When a patient files suit, he implicitly “consents only to the release of
his medical information (relative to the lawsuit) pursuant to the methods of discovery
authorized by Supreme Court Rule 201(a) [citation]. A patient certainly does not, by simply
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filing suit, consent to his physician discussing that patient’s medical confidences with third
parties outside court authorized discovery methods, nor does he consent to his physician’s
discussing the patient’s confidences in an ex parte conference with the patient’s legal
adversary.” (Emphasis in original.) Id. at 591.
¶ 41 Here, Dr. Krygsheld was not the allegedly negligent physician. Thus, the physician-
patient privilege applies because PFAC and Dr. Brink are not prevented from defending
themselves in the lawsuit. Plaintiff sued because of the negligent treatment allegedly
administered by Dr. Brink. Plaintiff did not waive her privilege as to treatment given by Dr.
Krygsheld, her subsequent treating physician. Although the physician-patient privilege will
eventually be broken, it should only occur pursuant to formal discovery methods. PFAC does
not show what information that could be obtained in an ex parte discussion with Dr.
Krygsheld could not be obtained via discovery pursuant to Supreme Court Rule 201(a) (eff.
July 1, 2014). See Petrillo, 148 Ill. App. 3d at 597 (“Neither the time nor expense involved in
deposing a treating physician creates such hardship that it is necessary for us to carve an
exception into the well-established rules of discovery.”). Because the alleged negligence
occurred during Dr. Brink’s treatment, PFAC is not hindered in preparing an adequate
defense to the lawsuit. PFAC’s counsel is able to consult with two of the three managing
members of PFAC outside the framework of formal discovery. I fail to see the difficulty or
prejudice defendants claim exists in preventing ex parte communication with Dr. Krygsheld.
Any concerns defendants may have about lacking particular input from Dr. Krygsheld
concerning this litigation does not warrant a court allowing defense counsel to speak ex parte
with him.
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¶ 42 Defendants argue Petrillo is distinguishable because Dr. Krygsheld is both plaintiff’s
treating physician and a managing member of PFAC. This distinction, however, does not
warrant the creation of an exception to Petrillo for medical entities organized as L.L.C.s
and/or corporations and their staff or control groups. In plaintiff’s medical malpractice claim
against PFAC and Dr. Brink, the particular negligence of Dr. Brink is the subject of the
litigation. Dr. Krygsheld is not in the same situation as Dr. Brink. Dr. Krygsheld neither
participated in nor was responsible for the alleged negligent treatment that plaintiff received.
Under the present lawsuit, Dr. Krygsheld is not in danger of being held personally liable.
Any fears of repercussions to the value of the L.L.C. medical corporation of which Dr.
Krygsheld is but one of the three managing members should not alter the physician-patient
privilege. Incorporation gives economic advantages to professionals in forming a medical
practice and should not be used as a means to violate a patient’s confidences and alter
existing statutory and common law. See Testin v. Dreyer Medical Clinic, 238 Ill. App. 3d
883, 895 (1992), vacated on other grounds sub nom. Almgren v. Rush-Presbyterian-St.
Luke’s Medical Center, 162 Ill. 2d 205 (1994) (order was not appealable where counsel did
not pursue contempt sanction). A financial tie between the treating physician and the
corporate defendant does not counterbalance the fundamental interests patients enjoy in the
patient-physician relationship. Although the facts of this case are uniquely different from
Petrillo and its progeny, the confidences known by Dr. Krygsheld are no different from those
of other treating physicians.
¶ 43 I disagree with the majority’s assertion that plaintiff necessarily waived some of the
protections afforded by the physician-patient privilege because she “created a conflict of
interest” when she received treatment from multiple doctors within the same medical group
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No. 1-15-2674
and then filed suit against the medical group and the single negligent doctor. Supra ¶ 26. The
majority’s critical observation of plaintiff’s conduct also would have to apply to physicians
who create a similar so-called “conflict of interest” by organizing their medical groups as
corporations and L.L.C.s. Although the majority answers the certified question in the
negative, it essentially concedes the error of its position that Petrillo does not bar ex parte
communications with Dr. Krygsheld by invading the province of the trial court and sua
sponte issuing a discovery order to limit defense counsel’s ex parte communications with Dr.
Krygsheld.
¶ 44 The public has an established and beneficial interest in both the fiducial and confidential
qualities of the physician-patient relationship, and the public has an interest in having those
qualities safeguarded from conduct that places them in jeopardy. Because ex parte
conferences threaten the sanctity of the physician-patient relationship while producing no
additional information (other than that which is already obtainable through the regular
methods of discovery), I would conclude that public policy prohibits ex parte
communications between counsel for a medical entity that is not a hospital and a treating
physician who is within the control group of the medical entity but whose actions are not
alleged to be a basis for the patient’s injuries.
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