In its opinion filed on December 22, 2016, an Illinois Appellate Court held that defense counsel was prohibited from having any ex parte communication with the plaintiff’s subsequent treating physician, who is the managing partner and therefore part of the control group of the podiatry group that was being sued for medical malpractice along with one of the group’s podiatrists (however, the subsequent treating physician was not named as a defendant) in a podiatry medical malpractice case until the plaintiff had the opportunity to take the doctor’s deposition on the issue of the nature and extent of her injury. The Illinois Appellate Court held that after the deposition is completed and signed, defense counsel may have ex parte communications with the doctor concerning the issues of negligence and causation.
Ex Parte Communications
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. A 1986 Illinois Appellate Court case (Petrillo) held that ex parte communications are barred between the 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.
In Petrillo, the Illinois Appellate Court held 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, basing 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.
The defense in the present case argued that a patient seeking care from a medical corporation has consented to reduced privacy rights, and should expect intraorganization communications regarding care. The defense argued 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.
The Illinois Appellate Court stated that if it 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 it would be finding that doctors who are sued in any capacity are bound by this privilege, which the Illinois Appellate Court stated “[w]e cannot make that conclusion here.”
The Illinois Appellate Court held that taking into consideration Petrillo and its progeny, and also considering 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, the Illinois Appellate Court desired to “balance the competing privileges at issue in the interest of justice”; however, the ex parte communication it was granting to the defendants is not without conditions and must be considered the exception, rather than the rule.
Source McChristian v. Brink, 2016 ILL App (1st) 152674.
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