Illinois Appellate Court Determines that the Injured Plaintiff’s Treating Physician and Defense Lawyer May Have Ex Parte Communications

In this medical negligence case, the Illinois Appellate Court took an interlocutory appeal on an issue of first impression regarding the application of the Petrillo doctrine on a unique set of facts. The plaintiff, Jacqueline McChristian, who was injured by a podiatrist, Dale Brink, DPM, claimed that the trial court violated the Petrillo doctrine when it permitted ex parte communications between McChristian’s treating podiatrist and the defense counsel of Performance Foot and Ankle Center LLC, which was a defendant in the case in which the treating podiatrist is a member.

The court was asked to answer a question of first impression that was whether defense counsel, who represents the defendant Dr. Dale Brink and the defendant Performance Foot and Ankle LLC, is prohibited from conducting ex parte communications with McChristian’s treating podiatrist, Dr. Timothy Krygsheld, who is also a member, and in the control group of the defendant.

The plaintiff argued 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.

The defendants argued that Petrillo did not apply to the treating podiatrist because as a controlling member of the LLC that is sued, he is not a “third-party” as set forth in Petrillo. The trial judge had granted the motion that denied the defendant’s counsel from ex parte communications with Dr. Krygsheld.

The Petrillo decision was a landmark decision on doctor-patient privilege. The Illinois 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 because they compromise the “sanctity” of the doctor-patient relationship. The court in Petrillo 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.

The appellate court in Petrillo 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 558.

The defendants argued that Dr. Krygsheld, who was one of the three managing members of the LLC, is part of the company’s control group. The Illinois 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 without 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.” In this instance, Dr. Krygsheld is one of three managing members of the LLC 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.

The court stated that 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 applied to the podiatrists who, although not sued directly, are part of the control group of the corporate entity that is sued. Petrillo does not preclude ex parte communications with the individuals who serve as the corporate heads and who are decision makers of the accused medical or podiatry corporation.

In addition, Dr. Krygsheld being a treating physician and a member of the LLC, he was also named 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 plaintiff’s injuries, we provide plaintiff the opportunity to take his deposition 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 communication with the witness concerning liability and causation aspect of the case.

By barring ex parte communications until after the injury deposition of Dr. Krygsheld, we afford plaintiff the opportunity to secure Dr. Krygsheld’s testimony on damages without coaching by defense counsel, and to have her privacy interest adequately protected without unnecessarily impinging on Dr. Krygsheld’s right to assistance of counsel for the corporate entity on the liability and causation issue.

In conclusion, the majority opinion was to allow the certified question answered in the negative with conditions that being that Dr. Krygsheld’s discovery deposition on the issue of damages only could be taken and then he would become a part of the defendants, which would certainly allow counsel to represent him.

There was a dissent filed that pointed out that Dr. Krygsheld was not the allegedly negligent physician. Therefore, the dissent justice maintained that the physician-patient privilege applied because the LLC and Dr. Brink are not prevented from defending themselves in the lawsuit. The lawsuit that plaintiff brought alleged negligent treatment by Dr. Brink. The plaintiff did not waive her privilege as to treatment given by Dr. Krygsheld, her subsequent treating physician. Although the dissenting justice continued, the physician-patient privilege will be eventually broken, it should only occur pursuant to formal discovery methods. The justice also stated that he disagreed 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 and then filed suit against the medical group and a single negligent doctor.

In conclusion, the dissent stated 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.

Jacqueline McChristian v. Dale Brink, DPM, et al., 2016 IL App (1st) 152674, Sept. 30, 2016.

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