When the healthcare provider retains counsel, for example after getting a deposition subpoena, many defense counsel have felt that communicating with the provider’s counsel was within bounds. Communication among counsel does not present the same improper disclosure risks that the Petrillo
Court found with one-on-one healthcare provider interviews. Indeed, the healthcare provider’s counsel often welcomes such communications as a way to learn about the case and to better represent their client. This includes learning the plaintiff’s theory of the case and possible vulnerabilities the client may have in giving testimony. And, of course, the healthcare provider’s counsel would be obligated to protect confidential information he might have learned in the course of the representation. Illinois defense counsel have long communicated ex parte with non-party healthcare provider counsel without concern about violating Petrillo.
A long-serving judge on the Cook County Circuit Court bench, however, has put this practice in doubt. In Thompson v. University of Chicago Medical Center, No. 2012 L 0101412, Judge Kathy M. Flanagan granted a motion to bar certain testimony from a represented doctor and ruled that counsel for the defendant violated the Petrillo rule when he sent the doctor’s lawyer a copy of plaintiff’s complaint along with the medical records (which the parties agreed could be sent). As a sanction for including the complaint with the medical records, Judge Flanagan barred defense counsel from asking whether the doctor had any opinions at the deposition and trial, instead limiting the doctor’s testimony to his own treatment of plaintiff.1
In support of the motion to bar, the plaintiff’s counsel did not cite any Illinois authority for the proposition that communication with a healthcare provider’s lawyer was improper, dismissing the potential argument in a footnote citing only two Washington state supreme court decisions.2 One of those cases involved communication with the healthcare provider’s counsel similar to the one at issue, but there the court declined to penalize the defense because it found no prejudice. To our knowledge, the Illinois Petrillo rule has never been extended this far before.
Although the finding of a Petrillo violation was the most significant aspect of Judge Flanagan’s ruling, the order was surprising for other reasons. For one, the document on which the sanctions were based was publicly available—it was a copy of the complaint which the doctor’s lawyer could, and probably would, have obtained anyway as part of his diligence in order to prepare his client for the deposition. In addition, although plaintiff argued that this was an attempt to bias the provider against plaintiff, the complaint (including the expert reports Illinois malpractice plaintiffs are required to submit with their initial pleading) was plaintiff’s counsel’s own document and, if anything, would be slanted in plaintiff’s favor. In a final bit of irony, the doctor testified that he never looked at the complaint or the expert reports. None of that provided a defense to the conduct in this instance.
This decision is interesting because it does not appear to turn on the primary rationale for Petrillo, that the healthcare provider might divulge patient confidential information to defense counsel if such “discovery” was permitted to take place ex parte. In Petrillo, the Appellate Court reasoned that a plaintiff consented to disclosure of confidential information only “pursuant to the methods of discovery authorized by Illinois Supreme Court Rule 201(A).”3 As noted above, the risks of improper disclosure of protected information to defense counsel from direct communication with a healthcare provider are not the same as those in communication between a lawyer for a doctor and defense counsel. The order was not based upon the risk of disclosure, however, but instead on a secondary rationale of Petrillo, that a doctor has a fiduciary duty to his patient founded on trust and confidence.4 Judge Flanagan appears to have been persuaded that by providing a copy of the complaint to the doctor’s lawyer, defense counsel was attempting to influence the doctor’s opinion and potentially to induce the doctor to “breach” his fiduciary duty to the patient by giving unfavorable testimony.5
The defendant has petitioned the Illinois Supreme Court for a Supervisory Order directed to Judge Flanagan, and we are hopeful that the court will overturn or at least limit this unique ruling.6 The Illinois high court, however, has not been hospitable to efforts by defense counsel to confine Petrillo in the past and so its intervention by granting a the supervisory order is not a certainty.7 This ruling has potential significance for all defense counsel involved with healthcare professionals in Illinois and potentially in other jurisdictions that have Petrillo-like rules. As noted in the Motion for Supervisory Order, Judge Flanagan’s order “has gone much further than Petrillo ever envisioned” and “there was no reasonable basis to believe that such conduct could be interpreted as violative of Petrillo.”8
There is no indication when, if at all, the Illinois Supreme Court will speak on this issue. In the mean time, defense counsel need to be aware of the Thompson decision as they deal with counsel for healthcare providers. The risk under Judge Flanagan’s view of Petrillo is that plaintiffs’ counsel may seek to extend this ruling even further to communications among defense counsel for hospitals and doctors, not just counsel for non-parties. The suggestion in Thompson that defense counsel should have sought permission to send the complaint to the witness’s counsel seems extreme and implies that oral communication with counsel would also be off limits. Presumably, plaintiffs’ counsel will argue that such communications could also bias the healthcare provider against the patient and induce him to breach his fiduciary duties. One possible way to protect these communications would be to remind the provider’s counsel that they should not divulge any confidential information they may have learned about the patient and that no attempt is being made to influence the doctor’s testimony. Defense counsel should also make it clear that any information being provided is for counsel’s use only and should not be shared with the healthcare provider.
1 The court did not issue a written opinion explaining the ruling, but did issue written orders (1) granting plaintiff’s Motion to Bar Testimony and limiting the physician’s testimony to matters concerning his own care and treatment of plaintiff, restricting the physician from opining about the surgery or allegations in the complaint (Case Management Order, Sept. 26, 2014), and (2) striking portions of the physician’s testimony (Focused Case Management Order, Feb. 13, 2015). According to the filings, the doctor had performed a procedure on plaintiff similar to the one at issue in the malpractice case performed by the defendant, making his opinions on the standard of care highly relevant.
2 Plaintiff’s counsel cited Loudon v. Mhyre, 110 Wash. 2d 675, 756 P.2d 138 (1988), which followed the Petrillo line of cases and barred ex parte interviews of treating physicians, and Smith v. Orthopedics Int’l, Ltd., P.S., 170 Wash. 2d 659, 244 P.3d 939 (2010), where the court, in a 5-4 decision, found a violation of the Loudon rule when defense counsel forwarded a plaintiff’s expert report and a draft outline of a direct examination to the doctor’s counsel, but upheld the lower court’s denial of a new trial.
3 Petrillo, 148 Ill. App. 3d at 592.
4 Id. at 592-93.
5 Notably, in Burger v. Lutheran Gen. Hosp., 198 Ill. 2d 21, 759 N.E.2d 533 (2001), where the Illinois Supreme Court discussed Petrillo at length, no mention was made of this secondary rationale for the decision. Nor is it obvious how sending a document or other communication to a healthcare provider’s lawyer would induce such a breach or that a healthcare provider can only fulfill his duty to the patient by giving favorable testimony.
6 Univ. of Chicago Med. Ctr. v. The Hon. Kathy Flanagan Judge of the Cir. Court of Cook County, Petitioner University of Chicago Medical Center’s Rule 383 Motion for Supervisory Order, No. 2012 L 10412 (Mar. 17, 2015).
7 See e.g., Best v. Taylor Mach. Works, 179 Ill. 2d 367, 375, 689 N.E.2d 1057, 1062 (1997); Kunkel v. Walton, 179 Ill. 2d 519, 689 N.E.2d 1047 (1997), holding that legislature’s attempt to modify the Petrillo rule violated the Illinois Constitutional Separation of Powers clause. Even the Burger decision, which rejected a constitutional challenge to a narrow statutory exception to Petrillo, was decided on a close 4-3 vote, with three Supreme Court justices ready to bar routine communications between hospital counsel and staff members about patient care regardless of whether a suit had been filed.
8 Id. at p. 1, 14 (emphasis added).
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Eugene A. Schoon
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