Petrillo's Scope Questioned in Two Cases Before High Court

A more definitive statement is expected on the much-debated issue of defendant counsel's ex parte communications with psychiatrists and doctors/officers of medical corporations when the Illinois Supreme Court rules on two consolidated cases.

Almgren v. Rush-Presbyterian Hospital, 149 Ill.2d 647 (1993) and Testin v. Dreyer Medical Clinic, 149 Ill.2d 661 (1993) both deal with treating physicians and the so-called Petrillo rule, but two very different factual patterns will determine two separate aspects of the rule.

In the face of a plaintiff's filing a lawsuit, the right of confidential communications is waived only to the extent allowed under the discovery process-a rule now commonly known as the Petrillo doctrine for the seminal case that bears that name. Petrillo v. Sybtex Laboratories, Inc., 148 Ill.App.3d 581, 499 N.E. 2d 952 (1st Dist. 1986).

For nearly eight years appellate courts around the state have been fine-tuning the nuances of that doctrine.

The issue is simple: Treating physicians cannot communicate in any way with opposing counsel without court supervision or plaintiff involvement.

The policies are similarly simple: The patient can be assured that anything said or done during treatment will not be divulged - a promise that exists at the time of the communications. The ultimate goal is to improve patient care. Covert meetings with a doctor undermine the physician-patient privilege and do not promote that goal.

Any argument made by a defense attorney's inability to communicate with a witness is spurious. The statute does not prohibit communications but only requires contact be made pursuant to formal discovery procedures so that the plaintiff may object to any communications that are outside the realm of the case at bar, thereby allowing the trial court to rule on disclosure in camera.

This process guarantees that the truth will come out. So why does the defense bar so vehemently argue for a cloak of secrecy? Why is discovery more meaningful in private?

Defense counsel contend they need to better prepare the doctor in private for a deposition. Perhaps, instead, it is the need for the defense to "coach" the doctors on the "best" version of the facts - finding a story more palatable to the jury in their quest to evade liability. This only serves to undermine the very purpose of discovery - the search for truth.

Furthermore, in cases in which the doctor has not been a named defendant in the lawsuit, defense counsel often need be reminded they are not the physician's counsel. Rather, the physician is free to contact and hire his or her own lawyer, if necessary.

The plaintiff's bar is awaiting the proper opportunity to challenge the current mischievous practice of the Illinois State Medical Society and its insurer (ISMIS) where it offers to its physician-insureds counsel at depositions - counsel who are paid by ISMIS, the same entity paying the inquiring defense lawyer.

When the two ISMIS lawyers talk, they accomplish by indirection what the law prohibits by direction. They know the improper evil of this practice that accounts for the ISMIS operatives' high visibility in the effort to encourage the Supreme Court to pass Supreme Court Rule 221, a proposal that would virtually wipe out the Petrillo protections.

Such divided fidelity of the insurer creates a problem, particularly when the physician has violated hospital bylaws or procedures and a conflict of interest ensues.

In any lawsuit the attorney pieces together the facts from a variety of witnesses through discovery. Why should the medical malpractice situation be any different? Perhaps, as the plaintiff-appellee in Testin argues, the defendant would persuade the treating physician-witness in private to become an adversary of plaintiff, although he is the very person credited with saving the plaintiff's life. Testin, though, adds yet another wrinkle to the Petrillo fabric of cases. Testin involves a doctor who is also a director and shareholder in the medical corporation that was sued for malpractice. The subsequent treating doctor there, a general surgeon in the same group, was not individually named as a defendant and is not implicated in the alleged negligence.

Attorneys for the defendant argued to the Illinois Supreme Court in November that invoking the Petrillo doctrine, in essence, prevents a corporation from communicating with the control group that determines policy and procedure in the case.

At first blush, the argument appears to be a convincing one until is is considered against the backdrop of the unique physician-patient relationship. The doctor/corporate officer obtained those confidences in his role as a physician in the medical treatment of plaintiff.

The patient did not come to the doctor in his capacity of director or shareholder of the medical corporation. Rather, the patient comes to the doctor for medical care and advice. The physician as corporate officer can simply excuse himself from any business decisions on this particular issue. The defense is trying to use corporate status, a growing trend in the medical profession, as a way to sidestep Petrillo and violate a patient's confidences. The attorney and his relationship with the corporation should not be allowed to take precedence over the doctor-patient relationship. The mere incorporation of medical personnel for economic reasons should not promote violation of this unique fiduciary relationship. Nor do agency principles outweigh the public policy considerations underlying the physician-patient privilege, according to Petrillo.

Almgren, on the other hand, was framed as a Petrillo case, when, in fact, it need not mention the doctrine at all. Actually, the Mental Health and Developmental Disabilities Confidentiality Act (S.H.A. 740 ILCS 110/2 et seq.) is at issue, a law that requires judicial review as to the necessity of any disclosure of confidential matters.

In Almgren, a psychiatrist treated an in-patient at a Chicago hospital, issuing her a pass to temporarily leave a locked ward. While on leave, the patient wandered in a psychotic state and was struck and permanently injured by a Chicago Transit Authority train. Defense counsel for the institution wished to speak in private to the treating psychiatrist who had seen the patient for years before the incident occurred.

Without the plaintiff's counsel present during meetings between the defendant's counsel and the psychiatrist, an unnamed defendant, the likelihood of confidential communications unrelated to the specific incident in question could occur, violating the very premise of Petrillo.

But without even turning to Petrillo, the court can decide Almgren on the narrow basis of the Mental Health Act itself. The Legislature has determined that the right to privacy is of greater value that the unqualified disclosure of this type of sensitive information.

The reasonable restrictions in upholding Petrillo is but a small price to pay to insure the sanctity of the physician-patient relationship. To rule otherwise becomes a windfall for hospitals and erring doctors at the expense of the injured patient.