Does High Court Decision Hurt Petrillo Doctrine?

In what first appears to be a severe blow to the Petrillo doctrine the Illinois Supreme Court recently held that hospital malpractice defense lawyers can communicate ex parte with all hospital personnel about a patient’s medical negligence action. Burger v. Lutheran General Hospital, Docket No. 89643, 44 (consolidated),____Ill. 2d___(decided Oct. 18, 2001).

Doris Burger went to a hospital emergency room, complaining of a leg injury. After a few hours, she was treated and released. The following day she returned to the hospital and required intravenous antibiotics. Three days later her leg had to be amputated.

Burger filed a medical malpractice action against four doctors, the hospital and the hospital’s parent corporation.

She subsequently sought injunctive relief to bar ex parte communications between the hospital’s malpractice defense counsel and those members of its medical staff, agents, and employees who provided health care to the plaintiff that were not named as defendants, claiming that certain amendments to the Hospital Licensing Act, 210 ILCS 85/6.17(e)(West 2000), which allowed such communications, were unconstitutional

The amendments in question provide, in part, that, "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 or treatment they provided or assisted in providing to any patient within the scope of their employment or affiliation with the hospital."

After extensive briefing and oral argument, Judge Joseph Cascito of the Circuit Court of Cook County Issued a written opinion agreeing with Burger and found the amendment unconstitutional .

Reversing Judge Casciato’s order by a 4-3 majority, the Supreme Court rejected the argument that the recent amendments to the Hospital Licensing Act allowed improper "wholesale, third party disclosure," citing the public policy of assuring "quality patient care," and held the legislation properly allowed a "limited intra-hospital exchange of information," between the hospital staff, agents, and employees and the hospital’s malpractice defense attorneys.

The majority opinion, authored by Justice Mary Ann McMorrow, largely based its decision on the fact that under the Act the information contained in the hospital records of the patient are deemed to be the property of the hospital. Thus, the court concluded that the exchange of patient information among these hospital employees was not discovery at all, but rather " intra-corporate conversations with respect to information which is the property and responsibility of the hospital."

The court distinguished Petrillo v. Syntex Laboratories, Inc., 148 Ill. App.3d 581, 499 N.E. 2ed 952 (1st Dist. 1986), by finding that the communications allowed under the Hospital Licensing Act are not triggered by litigation but instead are intended to promote a " limited intra-hospital exchange" of the "hospital’s own information" between risk managers and hospital counsel and its employees agents, and staff regarding issues that may be necessary for investigating adverse incidents, preventing future adverse events, making patient treatment decisions, and validating patient consents.

In a strong dissent, however, Chief Justice Moses Harrison wrote that the majority "fails to recognize that a patient’s constitutionally protected privacy interest in his or her own medical records...exists regardless of who is deemed to own the physical documents in which the patient’s confidential medical information is recorded."

He went on further to say that, under the Illinois Constitution, the patient has ultimate control over his or her own records, not the hospital or any care giver. Justice Harrison argued that the patient’s privacy interests are primary regardless of who controls the medical records. I would agree and add that the medical information contained in them is privileged and the patient is the holder of that privilege.

The legislature has long recognized a statutory basis for the physician-patient’s privacy interests. With specific enumerated exceptions, the statute clearly provides that, " No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient..." 765 ILCS 5/8-802 (West 2000). This privilege also is a premise underlying the Hippocratic Oath and modern principles of medical ethics.

On the other hand, the majority opinion clearly strengthens the doctrine of apparent agency as to hospitals.

The majority opinion repeatedly and clearly used the doctrine of apparent agency to justify the communications allowed by the legislation. In one instance, the court asserted that the Legislature’s granting of this communication allowed by the legislation. In one instance, the court asserted that the Legislature’s granting of this communication right to hospitals, relates to the "independent duty of hospital to review and supervise the medical care administered to the patient." The majority took a realistic view of how patients enter a hospital setting when seeking medical care, particularly through emergency rooms, and found that individuals are provided health care services by a wide array of hospital personnel who require information regarding the patient’s medical history.

" Indeed , because ‘the reasonable expectations of the public have changed’ with the advent of modern hospital care ( Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 32 (1999)). hospital patients today often regard the institution of the hospital itself, rather then the individual treating physician, as the patient’s primary care-giver." It could be anticipated that the scope of those persons who will be considered apparent agents of the hospital will continue to expand under this reasoning.

Above all else, both statutory and common law of this state are based on the principle that the physician- patient relationship is founded on trust and confidence; and thereby it is necessary that a physician refrain from engaging in ex parte conferences with a patient’s legal adversaries and thereby potentially interfering with sound medical care for other considerations.

Certainly, Burger should be read narrowly on the Petrillo issues, as suggested by the majority, and should be read to undermine the strong public policy of preserving the fiduciary and confidential relationship with one’s physicians to the detriment of the patient or so as to undermine the physician’s duty and ability to properly practice his profession.

As to the issue of apparent agency, Burger poignantly sets forth the strong public policy reasons to hold hospitals accountable for all the care rendered by those with whom the hospitals is engaged in the communications authorized by the amendments to the Hospital Licensing Act.