Aylward v. Settecase
April 29, 2011
409 Ill.App.3d 831, 948 N.E.2d 769, 350 Ill.Dec. 489
THE DECISION
The First District Appellate Court of Illinois recently handed down its decision answering a certified question related to ex parte communications by defense counsel with plaintiff's treating healthcare providers. This decision upheld and strengthened the current doctrine governing a defendant's ex parte communications in Petrillo and its progeny.
Aylward v. Settecase is a medical malpractice case in which plaintiff sued his physician, Michael Settecase, D.O. and Dr. Settecase's employer, Midwest Physician Group, Ltd. (MPG), a medical clinic. In the underlying case, MPG sought to hold ex parte communications with non-defendant employees of MPG. The trial court initially granted this request, but upon motion to reconsider by plaintiff, the trial court reversed its decision. Defendant then moved for and the trial court certified the question, "Whether counsel for co-defendant multi-specialty clinic, in a malpractice action, can communicate ex parte with its employees whose actions may be the basis for liability against the clinic."
Though plaintiff's initial complaint alleged MPG acted "through its agents, servants and/or employees," plaintiff amended to state MPG acted "through the conduct of [defendant Michael Settecase, D.O.]." Plaintiff argued the current doctrine governing a defendant's ex parte communications with a plaintiff's treating physician, as set forth in Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952 (1986) precluded the ex parte communication requested by plaintiff's counsel. Plaintiff further argued the application of Petrillo in Ritter v. Rush-Presbyterian St. Luke's Medical Center, 177 Ill.App.3d 313, 126 Ill.Dec. 642, 532 N.E.2d 327 (1988), and Morgan v. County of Cook, 252 Ill.App.3d 947, 192 Ill.Dec. 176, 625 N.E.2d 136 (1993), extends to preclude ex parte communications with treating healthcare providers who are employees of a defendant when those healthcare providers' conduct is not at issue or the basis of liability for the defendant employer hospital or medical clinic.
Defendant relied on Porter v. Decatur Memorial Hospital, which held plaintiff could add new claims, even after the expiration of the statute of limitation, if there is a "sufficiently close relationship" to the original claim. 227 Ill. 2d 343, 360-62, 317 Ill. Dec. 703, 882 N.E. 2d 583 (2008). Defendant argued under Porter, plaintiff could potentially make additional claims related to other MPG employees in the future. In response to the certified question, the First District Appellate Court of Illinois found though plaintiff could amend to add claims against MPG for other employees in the future, he had not yet done so. Therefore, the prejudice defendant was alleging it might suffer was purely hypothetical. The Court answered the certified question in the negative and found that defense counsel could not engage in ex parte communications with MPG employees other than defendant, Dr. Michael Settecase.
SIGNIFICANCE OF THE DECISION
The remaining question is how the Aylward case, in conjunction with Petrillo, Ritter and Morgan, can be reconciled with the Hospital Licensing Act, 210 ILCS 85, 6.17(d) and (e). The Hospital Licensing Act specifically allows intra-hospital communication about patient treatment, even with treating physicians not named as defendants, prior to and after a lawsuit has been filed.
In 2001, the Hospital Licensing Act came under fire in Burger v. Lutheran General Hospital, but the Supreme Court of Illinois found the Act did not unreasonably violate the patient's right to privacy because the limited intra-hospital communications were necessary to ensure quality patient care and communication of patient's medical information to outside third parties was explicitly prohibited. 198 Ill.2d 21, 52, 259 Ill.Dec. 753, 759 N.E.2d 533 (2001). The Burger court specifically addressed the application of the Petrillo doctrine in a situation in which a hospital was investigating its own medical care. In Burger, the plaintiff argued the principles of Petrillo prevented ex parte communications between a hospital's defense counsel and plaintiff's hospital caregivers who had not yet been specifically named, but for whose conduct the hospital could be potentially liable. The court disagreed with plaintiff's argument stating that unlike Petrillo, where confidential information was divulged to parties who had not otherwise possessed the information absent the disclosure, in the Burger case, the communication was of information already the property of the hospital and already known to the hospital's agents, including counsel, irrespective of the filing of a lawsuit.
There is seemingly strong support to argue to overturn the First District Appellate Court's decision based on Burger. However, Burger dealt with a hospital, which, through the Hospital Licensing Act, has specific permission to conduct intra-hospital communications. When dealing with medical groups there is no similar Act permitting such communications, but the benefits of intra-practice communications are similar, e.g., ensuring patient care. It will be interesting to see whether the defendant seeks further relief in Aylward or whether more cases come down on this issue from other Districts.
