McChristian v. Brink

2016 IL App (1st) 152674
No. 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)).
-2-
 No. 1-15-2674

¶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.”
-3-
 No. 1-15-2674

¶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.

-4-
 No. 1-15-2674

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

-5-
 No. 1-15-2674

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

-6-
 No. 1-15-2674

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.

-7-
 No. 1-15-2674

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”).

-8-
 No. 1-15-2674

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

-9-
 No. 1-15-2674

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

- 10 -
 No. 1-15-2674

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

- 11 -
 No. 1-15-2674

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.
- 12 -
 No. 1-15-2674

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.
- 13 -
 No. 1-15-2674

¶ 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).

- 14 -
 No. 1-15-2674

¶ 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

- 15 -
 No. 1-15-2674

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.

- 16 -
 No. 1-15-2674

¶ 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

- 17 -
 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.

- 18 -