Originally Published in the IDC Quarterly, Volume 10, No. 2.

 

 

 

The Pruning of Petrillo:

 

A Practical Guide to the Recent

Amendment to the Hospital Licensing Act

 

By:

Linda J. Hay

Melvin G. Hobbs

 

A recent amendment to The Hospital Licensing Act carved out a narrow exception to the Petrillo Rule. Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 102 Ill. Dec. 172, 499 N.E.2d 952 (1st Dist. 1986), appeal denied 113 Ill. 2d 584.[1]  Pursuant to that statute, a hospital may now speak to its own medical staff members, agents and employees about the defense of malpractice litigation.[2]

 

Almost immediately upon its enactment, the plaintiffs' bar began concerted efforts to have the Act declared unconstitutional. To date, those efforts remain in the form of pending motions at the trial court level. This article will discuss the Act itself, including the characteristics of this legislation distinguishing it from tort reform legislation, and the status of current attacks on its constitutionality. Key points of the arguments raised by the plaintiffs' counsel in these attacks are provided, with possible defense responses. Finally, this article will highlight decisions from other jurisdictions on Petrillo-type issues, to provide further persuasive support for hospital defense counsel in their efforts to uphold the Act and continue to prune Petrillo.[3]

 

I. Public Act 91-526

 

Subsection (d):

 

No member of a hospital's medical staff and no agent or employee of a hospital shall disclose the nature or details of services provided to patients, except that the information may be disclosed to ... those parties responsible for peer review, utilization review, quality assurance, risk management or defense of the claims brought against the hospital arising out of the care ... or where otherwise authorized or required by law.

 

Subsection (e):

 

The hospital's medical staff members and the hospital's agents and employees may communicate, at any time and in any fashion, with legal counsel for the hospital concerning the patient medical record privacy and retention requirements of this section and any care of treatment they provided or assisted in providing to any patient within the scope of their employment or affiliation with the hospital.

 

This statute is the first attempt by our legislature to cut back on the well-established Petrillo doctrine since tort reform. The past attempt by the Illinois legislature to enact tort reform statutes was unsuccessful; the revisions in the Tort Reform Act were held unconstitutional. See, Best v. Taylor, 179 Ill. 2d 367, 228 Ill. Dec. 636, 689 N.E.2d 1057 (1997), and Kunkel v. Walton, 179 Ill. 2d 519, 228 Ill. Dec. 626, 689 N.E.2d 1047 (1997).

At issue in both Best and Kunkel were proposed provisions in which a plaintiff was required to sign a release giving defense counsel access to all medical records on filing of the lawsuit, thereby effectively defeating any Petrillo issue before it arose. In Best, the Illinois Supreme Court found the statute under attack far too broad, and without meaningful limitation, while in Kunkel the Illinois Supreme Court held that the statute in question encroached upon the Court's authority and violated the constitutional right to privacy. Unlike the statute declared unconstitutional in Best and Kunkel, however, the Act reasonably limits the circumstances under which a patient's medical information and records maybe utilized by a hospital, as well as with whom ex parte communication may occur.

 

In the months since the institution of this legislation, both the plaintiff and defense counsel throughout the state have been confronted with the practical effects of this legislation on the Petrillo doctrine. In opposition to the perceived threat to the Petrillo doctrine, the plaintiffs' counsel have consolidated their efforts both informally and through court ordered consolidations of motions to attack the constitutionality of the Act, 210 ILCS 85/6.17, particularly subsection (e). The plaintiffs' motions to bar ex parte communications under this statute have been so numerous in quantity and similar in content that the Law Division of the Cook County Circuit Court, on its own motion, issued an order to consolidate these matters and duly noted:

 

There are several thousand medical malpractice cases pending in the law division. Great numbers of motions attacking the constitutionality of the above cited statute have been filed among the individual calendar judges, the master calendar motion judges, the complex litigation case management judges and the 2005 assignment motion judges.

 

This court announced and held an open meeting on February 7, 2000 for discussions of this issue with 300 lawyers having attended the open meeting and all present having the opportunity to be heard. At that open meeting, the court requested that the plaintiffs' and the defendants' attorneys each designate lead counsel to prepare briefs and argue the motions.[4]

 

The order continued that all pending and subsequently filed motions seeking declarations of the unconstitutionality of this subsection of the Act be consolidated into one motion, and further stayed rulings on all pending motions until the assigned judge, Judge Casciato, issues an order regarding the consolidated motions. As of the writing of this article, this matter is scheduled to be heard on April 26, 2000. Similar motions have been filed and consolidated in other circuits and stayed awaiting the Cook County decision. Review of a sample of the plaintiffs' motions filed in various counties reveals identical language and arguments which rely, in large part, upon arguments made by the plaintiffs in both the Petrillo and Best cases. See, Petrillo, 148 Ill. App. 3d 581 and Best, 179 Ill. 2d 367.

 

The sequence of events following the passage of the Act squarely places hospital defense counsel in the dilemma of choosing whether or not to follow a statute facially clear in meaning, but subject to constitutional attack by a well organized the plaintiffs' bar. With the ghost of Best v. Taylor's successful assault on tort reform looming, and the plaintiffs' counsel proactively advising that sanctions will be pursued for ex parte Petrillo violations,[5] defense counsel would be well served by taking the safe course of waiting until the courts resolve this issue. Best, 179 Ill. 2d 367.

 

At a minimum, defense counsel wanting to engage in ex parte communications should do so only pursuant to a court order entered prior to such communications. Alternatively, counsel should await rulings from the various courts addressing the legality of the Act to determine how it will be interpreted and whether it will be struck down.

This waiting need not be passive. Defense attorneys should continue to meet to talk about key points they should coordinate in their efforts to promote awareness of this issue among members of the judiciary, the bar, and client groups so that support for the Act is far reaching and well informed.

 

II. Arguments Against P.A. 91-526 and defense Responses

 

In pending motions, the plaintiffs' attorneys suggest the Act is unconstitutional in various ways. These arguments all seem to be recycled versions of the arguments used previously to attack the Tort Reform Act.

 

A. Separation of Powers

 

Relying on the Best and Kunkel approaches, the plaintiffs argue that the Act violates the separation of powers by impermissibly interfering with the judicial authority over management of discovery. The doctrine of separation of powers is encompassed in Section 1 of Article 2 of the Illinois Constitution, which provides that: "The legislative, executive and judicial branches are separated. No branch shall exercise powers properly belonging to the other." Advocates of this approach marginalize the Act as a legislative attempt to regulate matters in the exclusive domain of the judiciary.

 

Both federal and Illinois case law support the constitutionality of the Act against such an argument. In the case of In re S.G., 175 Ill. 2d 471, 222 Ill. Dec. 386, 677 N.E.2d 920 (1997), the court noted that, "[t]he separation of powers provision is not an attempt to achieve a 'complete divorce' between the branches of the government" (quoting Strukoff v. Strukoff, 76 Ill. 2d 53, 27 Ill. Dec. 762, 389 N.E.2d 1170 (1979)), rather the purpose of this provision is to prevent a commingling of powers of two or more branches in the same hands. In re S.G., 677 N.E.2d at 927. "Where matters of procedure are at issue, this court has noted that the constitutional authority to promulgate procedural rules can be concurrent between the court and the legislature." Id.

 

Additionally, as the Illinois Fourth District noted in Hoem v. Zia, the legislature possesses the authority to make public policy decisions which may impact the admissibility of evidence. Hoem v. Zia, 239 Ill. App. 3d 601, 179 Ill. Dec. 986, 606 N.E.2d 818, 825, (4th Dist. 1992).

Importantly, the Act was approved by the House of Representatives 116/0 and passed in the Senate 59/0. Legislative Synopsis & Digest of the 1999 Session of the 91st General Assembly, Vol. 1 at 289-90 (Legislative Reference Bureau, June 8, 1999). This Act does not in any way amend codes of civil procedure, nor does it clash with or detract from the Illinois Supreme Court rules of discovery.

 

Although the plaintiffs' counsel successfully used the "separation of powers" argument in Best and Kunkel, there is a marked dissimilarity in the language of the Act as compared to the tort reform provisions addressed in those earlier cases. Best, 179 Ill. 2d 367 and Kunkel, 179 Ill. 2d 519. In Best and Kunkel, the courts found the language in the tort reform provisions required the judiciary to issue complete disclosure orders. Nothing in the Act requires that the Illinois judiciary issue broad orders regarding disclosure, as did the provisions which Best and Kunkel held unconstitutional. See, 210 ILCS 85/6.17.

 

Discovery of information by parties other than the hospitals, risk managers, or those expressly designated in sections 6.7 (d) and (e) is still subject to the Supreme Court rules. The Act does not allow for circumvention of set discovery rules to outside parties; it simply allows the hospital employees and staff to directly communicate with legal counsel for the hospital who could assist in assessing potential liability. 210 ILCS 85/6.17. Finally, the determination of whether a violation of separation of powers has occurred still remains with the judiciary.

 

B. Right of Privacy

 

As in the assaults on tort reform, the plaintiffs' attacks on the Act again raise the issue of the right of privacy. In striking down the tort reform statute in Kunkel v. Walton, the Court noted, "the text of our constitution does not accord absolute protection against invasions of privacy. Rather, it is unreasonable invasions of privacy that are forbidden. In the context of civil discovery, reasonableness is a function of relevance." Kunkel, 689 N.E.2d at 1055. This argument can be used in support of the Act in that the it does not create an unreasonable invasion of privacy by allowing a hospital attorney to speak with those who could subject the hospital to liability exposure.

 

Moreover, while the plaintiffs rely on Best and Kunkel, which held the patient release provision unconstitutional under tort reform, the Act is distinguishable. Best, 179 Ill. 2d 367; Kunkel, 179 Ill. 2d 519; 210 ILCS 85/6.17. In Best and Kunkel, the release of information required from the plaintiff was unlimited. By contrast, the patient is not mandated to waive the privacy of his or her entire medical history. Another Illinois decision that supports the Act is People v. Herbert, 108 Ill. App. 3d 143, 63 Ill. Dec. 892, 438 N.E.2d 1255 (1st Dist. 1982). There, the court noted that the physician-patient privilege encourages free discourse between the patient and health care provider and protects the patient from embarrassing invasions of privacy to unrelated third parties. The Act, as written, protects patient privacy by limiting communications so as not to include unrelated third parties.

 

C. Public Policy Arguments Including Vicarious Liability

 

The Act serves public policy by streamlining litigation. 210 ILCS 85/6.17. Recent cases have expanded the liability of hospitals under agency theories based upon public reliance on a hospital's reputation. In Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d  511, 190 Ill. Dec. 758, 622 N.E.2d 788 (1993), the Illinois Supreme Court expanded the liability of hospitals based on the actions of their apparent agents. "An individual who seeks care from a hospital itself as opposed to care from his or her personal physician, accepts care from a hospital in reliance upon the fact that complete ... care - from blood testing to radiological readings to the endless medical support services ... will be provided by the hospital through its staff." Gilbert, 622 N.E.2d at 795, quoting Pamprin v. Trinity Memorial Hospital, 144 Wis.2d 188, at 211-12, 423 N.W.2d 848 (1988).

 

The recent Petrovich opinion stated that, "[H]ospitals, in essence, have become big business .... [T]he reasonable expectations of the public have changed. Patients have come to rely on the reputation of the hospital . . . ." Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 241 Ill. Dec. 627, 719 N.E.2d 756, 765 (1999). Petrovich, additionally, expressly reaffirmed the expansion of the apparent agency doctrine set forth in Gilbert. Gilbert, 156 Ill. 2d 511. This year, in yet another case expanding legal responsibility, the First District Appellate Court found a hospital liable under an apparent agency theory for the action of an independent radiologist. Butkiewicz v. Loyola University Medical Center, 244 Ill. Dec. 149, 724 N.E.2d 1037 (1st Dist. 2000).

 

In a climate where a hospital can be held vicariously and directly liable for the actions of its medical staff and employees, the Act reasonably reflects the current realities of health care law in Illinois. Petrillo itself notes that an act against public policy is that which "[c]onflicts with the morals of the time, and contravenes any established interest of society." Petrillo, 499 N.E.2d at 957, (quoting State ex re/. Smith v. Bowman, 184 Mo.App. 549, 170 S.W. 700, 701 (1914) (emphasis added)).

 

Clearly, this Act is consistent with the morals of our time and the legal climate in Illinois which has been expanding apparent agency liability. 210 ILCS 85/6.17. The Act provides a defendant (or potential defendant) hospital with the ability to properly prepare a defense to theories of liability based upon agency by allowing its legal counsel to directly communicate with its agents and employees.

 

As reflected in the holdings of Petrovich and Gilbert, the reasonable expectations of the public have changed to the point where the hospital itself is viewed as a party with both a financial interest in treatment and responsibility for health care provided by its agents. Petrovich, 188 Ill. 2d 17; Gilbert, 156 Ill. 2d 511. Thus, disclosures to the physician or staff of the hospital can fairly be considered communications from the patient to the hospital itself. Again, unlike Best and Kunkel, the Act is narrowly tailored to limit the information disclosed to discussion by hospital staff-and legal counsel regarding care provided by that hospital. Best, 179 Ill. 2d 367; Kunkel, 179 ILL. 2d 519. Any other defense ex parte discussions with other unrelated health care providers would still fall within the constraints of the Petrillo doctrine. Petrillo, 148 Ill. App. 3d 581.

 

The Act represents the legislature's logical expansion of the established Illinois case law in Morgan v. Cook County that allows "a hospital to speak with employed physicians named in alleged malpractice claims. Morgan v. County of Cook, 252 Ill. App. 3d 947, 192 Ill. Dec. 176, 625 N.E.2d 136 (1st Dist. 1993).

 

While a step in the right direction, Morgan fell short of providing full protection because a defendant hospital may be exposed to liability for the actions of those not expressly named as defendants. Moreover, the ability of the plaintiffs to amend their complaint up to the time of trial means that a defendant hospital might not know the actual theory of the case before the eve of trial. The Act addresses this shortcoming by allowing direct access early.

 

Furthermore, improper disclosure of private medical information is still protected by the Medical Privacy Act, violation of which is a Class A misdemeanor. 210 ILCS 85/6.17 (f). Additionally, hospitals, risk managers or legal counsel who try to circumvent or misconstrue the narrow exceptions of the Act continue to risk the harsh, court-directed sanctions on parties as outlined in Petrillo. Petrillo, 148 Ill. App. 3d 581.

 

D. Right to Counsel

 

Finally, a common theme in the plaintiffs' motions is the interaction of the right to counsel and the physician-patient confidentiality privilege. Current Illinois case law does allow ex parte communication between allegedly negligent hospital caregivers and legal representatives of the hospital. See, Morgan, 625 N.E.2d at 182. The Illinois Hospital and Health Systems Association, in a recent memorandum, succinctly comments:

 

The patient's constitutional right of medical privacy should not turn on whether the patient's attorney alleges that a particular caregiver at the hospital was negligent. The hospital's negligence may be based on the conduct of any one or all of these caregivers. Therefore, hospital attorneys may speak to all of these caregivers to properly advise the hospital of its legal exposure in the case. Otherwise, the plaintiff’s attorneys will have a disincentive to allege negligent behavior with any specificity.

 

"Why P.A. 91-526 does not violate the Illinois Constitution," Illinois Hospital and Health Systems Association, February 8, 2000. (Memorandum prepared by Thaddeus J. Nodzenski, Associate General Counsel).

 

Allowing hospital attorneys or risk managers to have private conversations with their own potential agents, employees or medical staff does not threaten public disclosure of the patient's record. Furthermore, under the Supreme Court rules, the court is still free to limit the admissibility of either the contents of these conversations or the patient's records. In Baylaender v. Method, 230 Ill. App. 3d 610, 171 Ill. Dec. 797, 594 N.E.2d 1317 (1st Dist. 1992), the Court recognized the fundamental right of a physician to consult with legal counsel about potential liability regardless of whether a lawsuit had been filed.

 

The Baylaender Court further noted that the fears of erosion of Petrillo were "[d]iluted by the fact that the treating physician has the means by which to control the sharing of any information by his attorney, or for that matter his carrier, through enforcement of the attorney-client privilege." Baylaender, 594 N.E.2d at 1325.

 

Subsequent to Baylaender, Illinois courts have ruled favorably to the defendants in Morgan v. County of Cook. Morgan, 652 N.E.2d at 140. The Morgan court held that, if a plaintiff attempted to hold a hospital vicariously liable due to the conduct of one of his treating physicians,

 

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 hospital's attorneys. Thus, in such a situation, ex parte conferences between defense counsel and the plaintiffs treating physician are permissible.

 

Morgan, 625 N.E.2d at 140.

 

The Morgan court further stated:

 

We do not believe ... that the confidentiality of any medical information the physician may have learned during his allegedly negligent treatment of the plaintiff outweighs the defendant's right to effectively defend itself and to unfettered communication with the physician for whose conduct the hospital is allegedly liable.

 

Id. at 142.

 

As noted in Baylaender v. Method, "Petrillo ... is counterbalanced by the fundamental right of any person, including the physician, to seek legal counsel when threatened by potential legal liability without having to wait until suit is filed." Baylaender, 594 N.E.2d at 1326; See also, Petrillo, 148 Ill. App. 3d 581.

 

III. Approaches of Other Jurisdictions to Petrillo Issues

 

A review of other jurisdictions' approach to Petrillo issues reveal that few states have even approached the sophisticated level of debate that is currently on-going in Illinois. With the passage of the Act, Illinois appears to once again be leading the charge to re-define and, hopefully, broaden the rule to expand ex parte communications between treating physicians and medical personnel. 210 ILCS 85/6.17.

 

This section will look at other jurisdictions that prohibit ex parte communications under Petrillo-type situations. The next section will review those jurisdictions that allow ex parte communications. The justifications and rationale used in other jurisdictions may provide persuasive arguments in response to the attack on the constitutionality of the Act.

 

There is a fairly even jurisdictional split over the treatment of informal ex parte contact with a plaintiffs treating medical provider. Currently, jurisdictions that prohibit ex parte communications include Alabama, Arizona, Florida, Indiana, Iowa, Minnesota, Mississippi, Montana, New Hampshire, New Mexico, New York, North Dakota, Texas, Washington, and West Virginia. (See, Home v. Patton, 291 Ala. 701, 287 So.2d 824 (1973); Style v. Ceranski, 185 Ariz. 448, 916 P.2d 1164 (Ariz. Ct.App. 1996); Phillips v. Ficarra, 618 So.2d 312 (Fla. Dist.Ct.App. 1993); Cua v. Morrison, 636 N.E.2d 1248 (Ind. 1994); Roosevelt Hotel Ltd., v. Sweeney, 394 N.W.2d 353 (Iowa 1986); Blohm v. Minneapolis Urological Surgeons, 442 N.W.2d 812 (Minn. Ct.App. 1989), rev'd on other grounds, 449 N.W.2d 168 (Minn. 1989); Scott v. Flynt, 704 So.2d 998 (Miss. 1996); Jaap v. District Court, 623 P.2d 1389 (Mont. 1981); Nelson v. Lewis, 534 A.2d 720 (N.H. 1987); Church's Fried Chicken No. 1040 v. Hanson, 114 N.M. 730, 845 P.2d 824 (N.M. Ct.App. 1993); Stoller v. Moo Young Jun, 118 A.D. 637, 499 N.Y.S.2d 790 (N.Y. App.Div. 1986); Weaver v. Mann, 90 F.R.D. 443 (D. N. D. 1981); Homer v. Rowan Companies, Inc., 153 F.R.D. 597 (S.D. Tex. 1994); Loudoan v. Mhyre, 110 Wash.2d 675, 756 P.2d 138 (1988); State ex rel. Kitzmiller, 190 W.Va. 142, 437 S.E.2d 452 (1993)).

 

The jurisdictions that generally allow ex parte communications include Alaska, Arkansas, California, Colorado, Delaware, the District of Columbia, Georgia, Idaho, Kansas, Michigan, Missouri, New Jersey, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Wisconsin. (See, Langdon v. Champion, 745 P.2d 1371 (Alaska 1987); King v. Ahrens, 798 F.Supp. 1371 (W.D. Ark. 1992), affd 16 F.3d 265 (8th Cir. 1994); Heller v. Norcal Mutual Ins. Co., 8 Cal.4th 30, 32 Cal.Rptr.2d 200, 876 P.2d 999, (1994), cert denied, 513 U.S. 1059 (1994); Samms v. District Court, 908 P.2d 520 (Colo. 1995 en banc); Green v. Bloodsworth, 501 A.2d 1257 (Del. 1985); Alston v. Greater Southeast Community Hosp., 107 F.R.D. 35 (D.D.C. 1985); Orr v. Sievert, 162 Ga.App. 677, 292 S.E.2d 548 (1982); Pearce v. Ollie, 121 Idaho 539, 826 P.2d 888 (1992); Bryant v. Hilst, 136 F.R.D. 487 (D. Kan. 1991); Domako v. Rowe, 184 Mich.App. 137, 475 N.W.2d 30 (Mich. 1991), aff’d 438 Mich. 347, 475 N:W.2d 30 (1991); Brandt v. Pelican, 856 S.W.2d 658 (Mo. 1993); Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857 (1985); Covington v. Sawyer, 9 Ohio.App.3d 40, 458 N.E.2d 465 (Ohio 1983); Seaberg v. Lockard, 100 Ok 40, 800 P.2d 230 (1990); MacDonald v. United States, 767 F.Supp. 1295 (M.D. Pa. 1991), aff’d 983 F.2d 1051 (3rd Cir. 1992); Lewis v. Roderick, 617 A.2d 119 (R.I. 1992); Felder v. Wyman, 139 F.R.D. 85 (D.S.C. 1991); Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965); Steinberg v. Jensen, 194 Wis.2d 439, 534 N.W.2d 361 (1995)).

 

The split in jurisdictions is based upon many factors including the scope of existing physician-patient privilege statutes and the interpretation of the general principles of physician-patient confidentiality. Notably, the distinction between states that allow ex parte communications, and those that prohibit them, is not whether a confidential relationship exists between the patient and treating physician, but the breadth of the confidential relationship and the scope of the waiver of that relationship that is implied when the plaintiff files a lawsuit in which that the plaintiffs medical condition is at issue. See, e.g., Bryant, 136 F.R.D. at 492; Langdon, 745 P.2d at 1373; Roosevelt Hotel Ltd., 394 N.W.2d at 356.

 

A. Jurisdictions Prohibiting Ex Parte Interviews

 

1. Same Information Can Be Obtained Through Formal Discovery

 

The reason most often given by the courts that prohibit ex parte communications is that they violate the state's rules of civil procedure. Courts rely on the proposition that formal discovery methods may be used to obtain the same information. To allow ex parte communications in this context would amount to a "fishing expedition" without discovery rules. Jurisdictions that use this reasoning in prohibiting ex parte communications in this context include Indiana, Montana, New Hampshire, New York, North Dakota, and West Virginia. (Cua, 636 N.E.2d 1248; Jaap, 623 P.2d 1389; Nelson, 534 A.2d 720; Stoller, 499 N.Y.S.2d 790; Weaver, 90 F.R.D. 443; Kitzmiller, 437 S.E.2d 452).

 

Under a similar rationale, other courts, including Illinois in the Petrillo case, have prohibited ex parte communications because formal discovery procedures allow the defense to acquire all necessary information from a plaintiff's treating physician; informal discovery is therefore not a necessity. See, e.g. Jaap, 623 P.2d at 1391.

 

2. Fiduciary Relationship

 

One of the reasons set out in Petrillo as a basis to bar ex parte communication is that to allow such communication would result in a physician violating her fiduciary relationship with her patient. Petrillo, 499 N.E.2d at 957-61. At least one other jurisdiction has similarly recognized a fiduciary relationship between physician and patient. Duquette v. Superior Court, 778 P.2d 634, 640 (Ariz. App. 1989). The Arizona Appellate court in Duquette held, ". . . ex parte communications between defense attorneys and the plaintiffs' treating physicians would be destructive of both the confidential and fiduciary natures of the physician-patient relationship which have been recognized by statutory and case law." Id.

 

3. General Policy Justifications

 

The jurisdictions that prohibit ex parte communications between defense counsel and the plaintiffs' physicians follow a number of general policy justifications. The first is that the physician-patient confidential relationship works best when it encourages full and frank disclosure by the patient regarding their medical symptoms and history. These decisions suggest that ex parte contacts jeopardize such free disclosure. Home, 287 So.2d at 830; Petrillo, 499 N.E.2d at 962; Stempler, 495 A.2d at 860. A parallel argument in other jurisdictions is that the public has an expectation that medical confidences will not be disclosed to third parties informally or without legal compulsion. Duquette, 778 P.2d at 640; Horne, 287 So.2d at 830.

 

B. Jurisdictions That Allow Ex Parte Interviews

 

1. Public Policy Justifications

 

The policy justifications for allowing ex parte communications between defense counsel and the plaintiffs treating physician are based primarily on principles of fairness and overall judicial cost-efficiency. The fairness rationale is that the plaintiff should not be allowed unfettered access to subsequent treaters, while prohibiting that same access to the defense. The resulting prejudice is the unnecessary restriction of one party's (the defendant's) access to evidence. King v. Ahrens, 798 F.Supp. at 1373.

 

The second policy justification is that ex parte communications allow for the more efficient preparation of the case, as opposed to formal discovery which results in less efficient and more costly case preparation. Because ex parte communications occur more quickly than formal discovery, such as serving subpoenas and taking depositions, ex parte communications may also alleviate the need for costly copying charges for irrelevant records, x-rays, etc., and would likely lessen the need for numerous and costly depositions of uninvolved individuals. Certainly, this would reduce the attorneys' fees in the case and reduce the time needed to work up the case for trial.

 

Other jurisdictions have held that by filing a lawsuit, a patient-plaintiff waives the privilege as to certain information. Bryant v. Hilst, 136 F.R.D. at 490. The reasoning in these cases is that although the physician-patient privilege is to be accorded serious weight, the patient knowingly waives the privilege when a lawsuit is filed. Discussion in these cases often involve the scope of that waiver. Bryant, 136 F.R.D. 487 at 492; Home, 287 So.2d at 828; Duquette, 778 P.2d at 637; and Loudon, 756 P.2d 138 at 140.

 

For example, the Colorado Supreme Court held that it is permissible for a defense attorney to conduct informal interviews in the absence of a plaintiff or the plaintiffs attorney with physicians who have treated the plaintiff. Samms v. The District Court, Fourth Judicial District of the State of Colorado, 908 P.2d 520, 525 (Colo. 1995 en banc). The court based its decision on the-recognition that "[t]he purpose of discovery is to eliminate surprise at trial, discover all relevant evidence, simplify the issues, and promote the expeditious settlement of cases." Samms, 908 P.2d at 525.

 

The Samms court balanced the concerns of irrelevant disclosures and improper influence of witnesses, concluding that the legitimate danger is inherent in every contact between an attorney and a prospective witness for a party adverse to the attorney's client, yet that concern does not warrant a blanket prohibition of informal communications. Id. at 528. The safeguard that the Colorado Court put in place was to require defense counsel to give notice to the plaintiff so as to permit the plaintiffs attorney to attend the interview. Id.

 

In Steinberg v. Jensen, 534 N.W.2d 361, 465 (Wis. 1995), the Wisconsin Supreme Court held the statutory physician-patient privilege does not prohibit defense counsel from engaging in ex parte communications with a plaintiffs treating physicians. The Wisconsin court placed the burden of whether the physician could disclose information on the shoulders of the physician., Steinberg, 534 N.W.2d at 370.

 

In Domako, a Michigan case, a hysterectomy patient brought a medical malpractice action against a surgeon, alleging that a fistula was caused by the surgeon's negligence. Domako v. Rowe, 475 N.W.2d 30 (Mich. 1991). Following the hysterectomy, the patient was diagnosed with a vesico-vaginal fistula, and referred to an urologist for successful repair of the fistula. After a second postoperative visit to the urologist, the patient did not see the urologist again. Subsequently, the patient filed the malpractice suit against the first surgeon alleging that during the hysterectomy the surgeon had caused the fistula. In the initial stage of discovery, defense counsel subpoenaed the urologist's medical records and pursuant to Michigan statute, the plaintiff signed authorizations for the same without objection. Defense counsel then met ex parte with the urologist. At that meeting, defense counsel explained the defendant-surgeon's treatment and that he believed the cause of the fistula was ischemic necrosis, meaning that it had not been caused by negligent actions of the hysterectomy surgeon. The urologist also agreed to testify to that opinion at trial. Domako, 475 N.W.2d at 31.

 

The Michigan Supreme Court in Domako concluded that the patient had waived her physician-patient privilege by filing the lawsuit. Id. at 34. The court went on to consider the issue of whether the defendant's attorney was nevertheless precluded from conducting the ex parte interview. The court noted that no party to litigation has a proprietary right to any witnesses' evidence. While the court recognized that a physician is different from an ordinary witness as a result of the confidential nature of the physician's potential testimony, once the privilege is waived by filing a lawsuit, there are no sound legal or policy grounds for restricting access to the witness. Id. at 36. The Domako court stated:

 

The purpose of discovery is the simplification and clarification -of issues. Discovery should provide accurate information in advance of trial as to the actual facts and circumstances of a controversy . . . . -It should promote the discovery of the true facts and circumstances of a controversy, rather than aid in their concealment. Restricting parties to formal methods of discovery would not aid in the search for truth, and it would only serve to complicate trial preparation." (citations omitted) Id. at 35-6.

 

The Alaska Supreme Court in Langdon also saw no reason to make a different rule regarding personal injury cases. Langdon v. Champion, 745 P.2d 1371 (Ala. 1987). There the court held that defense counsel in a personal injury action may engage in informal ex parte interviews with the plaintiff's treating physician, but the physician cannot be compelled to engage in such interviews. The court reasoned that such informal methods are to be encouraged because they facilitate early evaluation and settlement of cases, with a resulting decrease in litigation costs. Langdon, 745 P.2d at 1373.

 

2. Privacy - Constitutional Challenge Rejected

 

Patient privacy is another central issue in these cases. The privacy issue is often viewed as a balancing test, weighing the patient's privacy interest in nondisclosure on the one hand, and the public's interest in an efficient and just disposition of the controversy on the other. Mull v. String, 448 So.2d 952, 954 (Ala. 1984).

 

The California Supreme Court rejected a challenge that ex parte interviews with a malpractice plaintiffs subsequent treating physician was a constitutional violation of the patient's right to privacy. Heller v. Norcal Mutual Insurance Co., 876 P.2d 999 (Cal. 1994). After the underlying malpractice suit was settled, the plaintiff brought an action against that defendant physician's associate, alleging that the associate disclosed certain information which violated the confidentiality under the California Medical Information Act and the constitutional right to .privacy. The court held,

 

[b]ecause the information would most likely have been discovered during the ordinary course of litigation, the defendants' conduct in revealing information about the plaintiff's treatment and physical condition does not violate the constitutional guarantee against invasion of privacy as a matter of law.

 

Heller, 876 P.2d at 1007.

 

The basis of the opinion was that the plaintiff could not have had a legally protected privacy interest or reasonable expectation of privacy about information that would eventually have been discovered in litigation. Id. at 1008.

 

IV. Conclusion

 

The Act does not create a waiver of the physician-patient privilege with all care providers, for any reason, without limitation. The statute as written does recognize exceptions to allow the patient's records to remain confidential. The Act in no way circumvents the patient's reasonable expectations of privacy in the current health care environment. 210, ILCS 85/6.17. The plaintiffs tried and, unfortunately, proven methods of limiting a hospital's ability to defend itself via Petrillo constraints have forced the defendant hospitals to communicate with treating physicians and their own vicarious agents through the inefficient and expensive formal discovery process. Petrillo, 148 Ill. App. 3d 581.

 

The Act, which permits certain ex parte discussions, properly allows the defendant hospital to evaluate cases sooner and fosters early resolution of cases. Both of these factors serve public policy by conserving litigation costs and judicial resources. Moreover, the Act promotes the interest of fairness by providing a defendant hospital direct access to those for whom it may be liable.

 

Under the Act, the judiciary is still empowered to limit the use of improper discovery through motions in limine, issuance of protective orders, or absolute bars of inappropriate communications under existing Petrillo applications. Petrillo, 148 Ill. App. 3d 581. Safeguards remain in effect as physicians may still refuse to communicate information to the hospital that is irrelevant to the case at issue, or assert the physician-patient privilege. Additionally, relevancy requirements and attorneys' ethics rules under the current laws of discovery still act as a check for the potentially unscrupulous defense attorney.

 

The Hippocratic oath taken by physicians states that they will not unnecessarily allow private issues to be broadcast "abroad." Current Illinois case law, finding hospitals vicariously and directly liable for the actions of their medical staff and employees renders them a single entity with regards to disclosure issues. A physician or health care provider in ex parte communication with the hospital, risk management, or legal counsel does not unconstitutionally circumvent the potential plaintiff’s privacy and, even under the Hippocratic oath restriction, is not decimating protected information "abroad." In the resulting Act, our legislature unanimously found Petrillo in the hospital setting to be too burdensome, too costly, and in the final analysis, a bad rule.

 

The new Act properly balances both hospitals' and health care providers' right to protect themselves against potential liability with the patient's reasonable interest in privacy. 210 ILCS 85/6.17. The Act serves the public interest by saving time, effort and costs. Discussions by a hospital with its actual and apparent agents establishes the lack or presence of liability, enhances utilization review and quality assurance, and allows for early dismissal of parties not properly named in the case, thus streamlining the litigation process.

 

 

The authors gratefully acknowledge Carl M. Schultz, currently a fourth-year Evening Division Law student at Chicago-Kent College of Law, for his time, effort, and participation in the preparation of this article.

 



[1] The Petrillo rule strictly forbids conferences between defense counsel and a plaintiff’s treating physician except pursuant to court-authorized discovery. 148 Ill.App.3d at 595, 101 Ill.Dec. at 181-82, 499 .E.2d at 961-62.

[2] See, P.A. 91-526, amending 210 ILCS 85/6.17, hereinafter "The Act"; Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1st Dist. 1986).

[3] Id.

[4] The plaintiff submitted Keith Hebeisen and Bruce Pfaff as the plaintiff’s lead counsel and the defendant submitted Hugh Griffin and Eugene Schoon as defendant's lead counsel.

[5] A number of the plaintiffs’ attorneys have sent out correspondence to defense counsel in situations where the Act may apply, admonishing defense counsel from engaging in ex parte communications and advising that sanctions will be sought for Petrillo violations.