FIFTH DIVISION
April 29, 2011
No. 1-10-1939
________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
________________________________________________________________________
LEON AYLWARD, JR., ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County, Illinois,
) County Department,
) Law Division.
)
) No. 2009 L 002558
)
MICHAEL SETTECASE, D.O., et al., ) Honorable
) Diane Larsen,
Defendants-Appellants. ) Judge Presiding.
__________________________________________________________________________
JUSTICE JOSEPH GORDON delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald-Smith and Justice Howse concurred in the judgment and
opinion.
OPINION
Leon Aylward, Jr. (plaintiff), filed the instant medical malpractice action against
Michael Settecase, D.O. (defendant), and his employer, Midwest Physician Group, Ltd.
(MPG) (collectively, defendants), alleging that they failed to diagnose his lung cancer in a
timely manner. During discovery, MPG sought permission to communicate ex parte with
various members of its staff who were involved in plaintiff's medical treatment while he was
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a patient at MPG, but who were not named as defendants in plaintiff’s lawsuit. The court
initially granted MPG's request but later reversed its decision by granting plaintiff's motion
to reconsider and prohibited MPG from engaging in any such contact. Defendants moved
for and the trial court certified a question pursuant to Illinois Supreme Court Rule 308. Ill. S.
Ct. R. 308 (eff. Feb. 26, 2010).
I. BACKGROUND
The following facts are not in dispute. Defendant is employed by MPG and formerly
was plaintiff's primary care physician during plaintiff’s time as a patient of MPG. During
plaintiff's tenure as a patient of defendant, he received care and treatment from several MPG
physicians and employees (collectively, MPG employees) who are not joined as defendants
in this action.
Plaintiff alleges that he contracted lung cancer in September 2005, while he was
being treated by defendant, but there was no diagnosis of that cancer until February 2007.
During that period, plaintiff, a 20 year smoker, allegedly complained to defendant about
chest congestion, chest pain, and wheezing, but defendant did not order a chest X-ray, refer
plaintiff to a pulmonary specialist, or order follow-up visits. This delay is the basis for
plaintiff's claim that defendants negligently failed to diagnose and treat his lung cancer in a
timely manner.
In his original complaint, plaintiff alleged that MPG “through its agents servants
and/or employees” undertook to render medical care to plaintiff. Pursuant to the Illinois
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Code of Civil Procedure (735 ILCS 5/2-622 (West 2008)), attached to that complaint was the
affidavit of a licensed physician and clinical professor of medicine stating, “If [defendant]
had ordered a chest X-Ray or other imaging study, [plaintiff’s] lung cancer would have been
diagnosed, and the appropriate treatment would have been rendered at that time, which more
likely than not would have prevented or lessened his subsequent injuries.”
As discovery progressed, counsel for MPG wrote plaintiff’s counsel in October
2009 requesting permission to contact the MPG employees to discuss their treatment of
plaintiff. Plaintiff’s counsel objected to this request on the grounds that they were not parties
to the case, stating “at this time, the only individual defendant to [plaintiff’s] lawsuit is
[defendant]. Consequently we decline to give you permission to speak with [the MPG
employees] regarding the care and treatment of [plaintiff].” In November 2009, defendants
filed a motion for leave to have ex parte communications with the MPG employees. Before
the court issued a decision on that motion, plaintiff amended his complaint, removing the
language “through its agents servants and/or employees” and instead alleged that MPG,
“through the conduct of [defendant], undertook to render care, diagnosis, treatment and other
medical services to [plaintiff] for pecuniary consideration.” Despite the amendment, the trial
court granted defendants’ motion and plaintiff filed a motion to reconsider. The trial court
granted that motion, denying defendants’ request to engage in ex parte communications with
the MPG employees. Defendants then requested a certified question to permit them to file an
interlocutory appeal pursuant to Supreme Court Rule 308, which the trial court granted. That
certified question was:
“Whether counsel for co-defendant multi-speciality clinic, in a
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malpractice action, can communicate ex parte with its
employees whose actions may be the basis for liability against
the clinic.”
II. ANALYSIS
Defendants raise one issue on appeal, namely, that their defense counsel should be
permitted to communicate ex parte with the MPG employees whose actions are not currently
the basis for liability against MPG, but may be in the future. They contend that they will be
prejudiced if they are not allowed to do so under the rationale of Porter, which recognizes that
plaintiff could potentially make additional claims of negligence based on the actions of the
MPG employees after the close of discovery but before the commencement of trial. See
Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 360-62 (2008) (holding that a plaintiff
may add a new claim after the statute of limitations period has expired if it bears a
“sufficiently close relationship” to the original).
Plaintiff, however first contends that this appeal should be dismissed as purely
hypothetical because the events that would lead to the prejudice defendants complain of have
not yet occurred, and second, that established precedent clearly holds that MPG may not
communicate with the MPG employees. As shall be fully discussed below, we do not agree
that this appeal should be dismissed. However, we do agree with plaintiff’s position on the
merits.
Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010) permits appellate review of
interlocutory orders that involve a question of law as to which there is a substantial ground for
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difference of opinion and where an immediate appeal may materially advance the ultimate
termination of the litigation. We have recognized that if a question certified pursuant to Rule
308(a) “calls for a hypothetical answer with no practical effect, we should refrain from
answering it.” Lawndale Restoration Limited Partnership v. Acordia of Illinois, Inc., 367 Ill.
App. 3d 24, 27 (2006). Similarly, a reviewing court “generally declines to issue advisory
opinions on moot or abstract questions.” In re Commitment of Hernandez, 239 Ill. 2d 195, 201
(2010). Here, this is not the case. Answering this question will have an immediate effect
upon the discovery process by determining whether MPG is permitted to represent the MPG
employees, and thus, its resolution may materially advance the ultimate termination of the
litigation. Accordingly, we will consider the merits of the certified question.
The foundations of the current doctrine governing a defendant’s ex parte
communications with a plaintiff’s treating physician are articulated in Petrillo v. Syntex
Laboratories, Inc., 148 Ill. App. 3d 581 (1986). In that case, a products liability action,
plaintiffs suffered injuries caused by defendants’ allegedly defective products. Defense
counsel engaged in ex parte communication with a plaintiff’s treating physicians to ascertain
the extent of the plaintiff’s injuries. The physicians’ conduct was not a basis for the
defendants’ liability. The trial court barred defense counsel from continuing to do so and
found him in contempt when he did not comply with that prohibition. On appeal, defense
counsel argued that the plaintiffs waived their physician-patient privilege when they filed suit.
The appellate court disagreed, reasoning that “principles of public policy, obligations created
by confidential and fiduciary relationships, and the ethical responsibilities of modern-day
professionals” prohibit ex parte communications between defense counsel and a plaintiff’s
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treating physician. Petrillo, 148 Ill. App. 3d at 610.
Subsequent cases, which the parties both agree are controlling, have discussed the
applicability of the Petrillo doctrine to the issue of ex parte communication between a
hospital defendant and its medical professional employees. See Ritter v. Rush-Presbyterian
St. Luke’s Medical Center, 177 Ill. App. 3d 313 (1988); Morgan v. County of Cook, 252 Ill.
App. 3d 947 (1993). In these cases, the appellate court held that while the right of a defendant
hospital to defend itself transcends the physician-patient privilege as to permit it to
communicate with employees for whose conduct the hospital is alleged to be liable, it is
barred from doing so with employees whose actions are not at issue.
In Ritter, the plaintiff filed a malpractice suit against a hospital after she fell off a
gurney while receiving treatment there. The hospital’s risk manager interviewed the
physicians who treated the plaintiff after her fall, and the plaintiff obtained a protective order
barring the hospital from engaging in further contact with them. Those physicians were not
named as defendants and were not a basis for the hospital’s liability. The hospital disregarded
the order and its attorneys interviewed the physicians prior to trial. The trial court barred the
hospital from calling those physicians and assessed attorney fees, and the hospital appealed,
arguing that Petrillo was inapplicable to the circumstances of the plaintiff’s case. Ritter, 177
Ill. App. 3d at 315-16.
The appellate court disagreed. It held that while under Petrillo, barring the hospital
from communicating with an employee-physician for whose conduct it was allegedly liable
would effectively prevent it from defending itself, that rationale did not extend to
communications with employees whose conduct is not a basis for liability as provided for in
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the complaint. The court found that in such a situation, the hospital’s right to defend itself did
not justify an abrogation of the physician-patient privilege. Ritter, 177 Ill. App. 3d at 317-18.
The holding of Ritter was upheld in Testin, where the defendant medical clinic sought
to engage in ex parte communications with its employees, some of whom were named
defendants and some of whom were not. Testin v. Dreyer Medical Clinic, 238 Ill. App. 3d
883, 888 (1992), reversed on other grounds sub nom. Almgren v. Rush-Presbyterian-St.
Luke's Medical Center, 162 Ill. 2d 205 (1994). The hospital argued that because Ritter
permitted it to communicate with its employees for whose conduct it was being held liable, it
should also be allowed to communicate with those whose conduct was not raised as an issue
in the pleadings.
The appellate court, following Petrillo and Ritter, disagreed. It held that while the
physician-patient privilege did not bar the medical clinic from communicating with the
allegedly negligent physician through whom it may have been vicariously liable, the privilege
still protected the plaintiff from disclosures by the physician-employees whose conduct was
not a basis for a clinic’s potential liability. Testin, 238 Ill. App. 3d at 889.
Similarly, in Morgan, the plaintiff filed a medical malpractice suit, naming the
hospital, as well as his treating physician, as defendants. During discovery, the hospital’s
attorney engaged in ex parte communications with physicians employed by the hospital who
treated the plaintiff, but whose conduct was not a basis for the hospital’s liability. At trial, the
plaintiff moved to bar the testimony of those physicians because, he claimed, the hospital’s
communications with them violated Petrillo. The trial court agreed and the hospital appealed.
Morgan, 252 Ill. App. 3d at 949. Reversing the trial court’s decision, the appellate court,
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following the decisions of Ritter and Testin, held that if a plaintiff attempts to hold a hospital
liable for the conduct of its own physician-employees, “the defendant hospital is included
within the physician-patient privilege and the patient has impliedly consented to the release of
his medical information to the defendant hospital's attorneys.” Morgan, 252 Ill. App. 3d at
954. The Morgan court went on to hold, however, that Petrillo and its progeny still forbid “ex
parte conferences between defense counsel and plaintiff’s treating physician” when that
physician’s conduct was not a basis for the hospital’s liability. Morgan, 252 Ill. App. 3d at
954.
Here, the defendants acknowledge that the holdings in these cases “are still good law
and applicable here,” but urge that these holdings must be expanded to allow MPG to engage
in ex parte communications with its employees who are not named as defendants and whose
actions are not a basis for MPG’s liability since they may become a basis for liability in the
future under the liberalized joinder rule articulated in Porter. We disagree.
In Porter, our supreme court adopted a more relaxed standard for amending pleadings,
allowing a plaintiff to add claims against a defendant that would otherwise be barred by
statutes of limitations, as long as they were substantially related to the original claim. In that
case, the plaintiff sued his doctor and hospital for medical malpractice. Years later, during the
course of discovery, the plaintiff attempted to amend his complaint to include a new claim
against the hospital. The hospital objected, arguing that because the claim was new and
different from the plaintiff’s original claim against it, it was therefore barred by the statute of
limitations. The plaintiff, however, argued that the claim “related back” to the date of the
timely filed complaint and therefore was not barred. Porter, 227 Ill. 2d at 350. Our supreme
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court agreed with the plaintiff, holding that a plaintiff may add a new claim where there exists
a “ ‘sufficiently close relationship’ between the original and new claims, both in temporal
proximity and in the general character of the sets of factual allegations and where the facts are
all part of the events leading up to the originally alleged injury.” Porter v. Decatur Memorial
Hospital, 227 Ill. 2d 343, 359 (2008) (quoting In re Olympia Brewing Co. Securities
Litigation, 612 F. Supp. 1370, 1371-72 (N.D. Ill. 1985)). The court went on to find that
plaintiff’s new claim against the hospital was sufficiently related to his original claims to
allow the amendment. Porter, 227 Ill. 2d at 361.
We fail to see how the resolution of Porter impacts upon the established precedents of
Ritter and its progeny. While Porter could conceivably permit plaintiff to add additional
claims against MPG, he has not done so yet, and the prejudice defendants allege they may
suffer is purely hypothetical at this time. Moreover, there is no indication that plaintiff is
seeking or will seek to hold MPG liable for the actions of the MPG employees. Plaintiff’s
amended complaint, as well as the attached physician’s report, suggests just the opposite,
namely, that plaintiff intends to hold defendant and MPG liable for defendant’s alleged
negligence. Those documents indicate that defendant’s failure to order a chest X-ray for
plaintiff, not the alleged negligence of the MPG employees, constituted a breach of the
standard of care and caused plaintiff’s alleged injuries. Plaintiff’s amended complaint went
so far as to remove language found in the initial complaint (“through its agents servants
and/or employees”) that would leave open the possibility that any MPG employees other than
defendant were potentially liable for plaintiff’s injuries. The law governing this matter, as
espoused in Petrillo and its progeny, is clear: unless and until the actions of the MPG
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employees are alleged to be a basis for plaintiff’s injuries, MPG cannot engage in ex parte
communications with them. In effect, defendants are asking for unfettered access to
communicate with anyone involved in plaintiff’s treatment based upon the mere speculation
that the conduct of those individuals may, at some later time, be joined as a basis for their
liability. The impact of such an expansion would substantially erode the rationale underlying
Petrillo and its progeny and permit defendants to communicate with essentially anyone,
regardless of privilege. We therefore refuse to attempt to overrule or disregard over two
decades worth of established precedent protecting the sanctity of the physician-patient
privilege in order to afford defendants the opportunity to prepare for claims not yet brought by
plaintiff.
Furthermore, even if, as defendants suggests, plaintiff does seek to “change the theory
of liability or add allegations through unnamed and undefended providers whose actions now
implicate [MPG] under a different theory” immediately prior to trial, a departure from the
holdings of the Petrillo line of cases would still not be warranted. While plaintiff may seek to
amend his pleadings, it is far from a foregone conclusion that he would be able to do so. See
Bell v. Toluca Coal Co., 272 Ill. 576, 583 (1916) (allowing an amendment to the pleadings
lies within the discretion of the trial court); Loyola Academy v. S&S Roof Maintenance, Inc.,
146 Ill. 2d 263. 273 (1992) (four factors must be considered before a plaintiff is permitted to
add additional claims, including whether the other parties would be prejudiced or surprised by
virtue of the new claim). Moreover, there are numerous safeguards in place to protect
defendants from the kind of prejudice they claim they may suffer, including giving defendants
reasonable time to prepare or even reopening discovery. See Greenberger, Krauss &
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Tenenbaum v. Catalfo, 293 Ill. App. 3d 88, 99 (1997) (plaintiffs were not prejudiced by
defendant’s amendment to the pleadings because the trial court granted them reasonable time
to prepare); Paul H. Schwendener, Inc. v. Larrabee Commons Partners, 338 Ill. App. 3d 19,
32 (2003) (“The amendment of pleadings to state a new claim after the close of discovery
usually requires reopening of discovery.”).
We do not believe that Porter compels us to depart from the established line of cases
protecting the sanctity of the physician-patient privilege and prohibiting the very type of
conduct defendants now ask us to sanction. Petrillo, Ritter, Testin, and Morgan all expressly
prohibit a defendant such as MPG from engaging in ex parte communications with a
plaintiff’s treating physician whose actions are not a potential basis for the hospital’s liability.
III. CONCLUSION
For the foregoing reasons, we answer the certified in the negative, and find that
defense counsel may not engage in ex parte communications with the MPG employees.
Certified question answered.
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Aylward v. Settecase
Combined Opinion