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

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¶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.

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¶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

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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

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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

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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.

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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

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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

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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