In a jury trial I had this summer, the Petrillo issue was once again raised. The trial involved a construction accident resulting in serious injuries. Before the judge could rule on the Petrillo issue, the case settled. What could have been a protracted trial and appellate matter, was averted by the settlement. Nevertheless, the case highlighted the importance of following the guidelines set forth in Petrillo.
Defense litigators in Illinois are intimately familiar with Petrillo v. Syntex Laboratories, Inc., 148 Ill.App. 3d 581 (1st Dist. 1986). In Petrillo, the court ruled that counsel for a defendant could not engage in ex parte communications with a plaintiff’s treating physician. Allowing counsel for the defense to speak ex parte with the plaintiff’s physician could allow the physician to divulge more information than the patient has consented to release by filing a lawsuit. Specifically, the court ruled that “discussions between defense counsel and a plaintiff’s treating physicians should be pursuant to the rules of discovery only.” 148 Ill.App. 3d at 61. The rationale was that these potential ex parte communications might jeopardize the sanctity of the confidential doctor-patient relationship. The court was concerned that a physician might disclose intimate facts regarding the patient that may be unrelated or irrelevant to the plaintiff’s alleged injury at issue in the lawsuit.
Defense attorneys should keep Petrillo in mind when it comes to the initial selection of medical experts to assist in the defense of their case. Trouble can ensue if the selected defense expert has a connection with one of plaintiff’s treating physicians. In Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258 (1st Dist. 1990) the trial court barred defense expert Dr. Marshall Matz determining that he had a physician-patient relationship with the plaintiff.
In Mondelli plaintiff saw Dr. Matz’ associate Dr. James Dupre on two occasions at Columbus Hospital as a neurological consult. Dr. Dupre was not an attending physician and did not have any ongoing treatment of the plaintiff. Several years later, after the filing of plaintiff’s lawsuit, Dr. Matz was retained by defense counsel to review medical records of the plaintiff and serve as a medical expert. Defendants argued that Dr. Matz never treated the plaintiff, never spoke to Dr. Dupre about the plaintiff, and in fact only provided an opinion as to diagnostic tests and treatment performed after Dr. Dupre saw the plaintiff.
The appellate court affirmed the trial court’s ruling to bar Dr. Matz based on several points. First, the court asserted that Dr. Dupre was a professional associate in Dr. Matz’ business office. Both doctors specialize in neurosurgery, practice in the same suite and have the same business telephone number. Based on these facts, the court found that Dr. Dupre’s status as a treating/consulting physician must be imputed to Dr. Matz and that Dr. Matz must be considered a treating physician through his association with Dr. Dupre.
Defense counsel should be very familiar with where their prospective medical expert practices and whether or not any treating physicians are associated with the expert’s private practice or hospital. Don’t forget that a physician that performs an IME could be considered a “treating physician” under Petrillo.
Paul Steinhofer is a litigation attorney at McKenna Storer in Chicago, IL, practicing in both Illinois and Indiana. If you have any questions regarding this or any other litigation issue, please contact Paul at psteinhofer@mckenna-law.com or 312-558-3900.
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