Proposal on Physician Patient Privilege Would Send Public Policy up in Smoke

The defense bar, in its apparent never-ending sorcery to evade liability, has pulled another trick out of its bag-a trick better known as Illinois Supreme Court Rule 221.

But this time the plaintiff's bar has quickly caught on to the sleight of the hand. This one-sided rule proposes to abolish express public policy enunciated by the Illinois legislature and courts regarding the sanctity of the physician-patient privilege.

Worse still, the unworkable proposal would serve as an invitation to mischief, allowing defense counsel to communicate directly with treating physicians about to be deposed on the very subject matter of the doctor's examination. What really would be occurring, though, is the defense counsel's more blatant attempts to turn treating doctors against their own patients in medical malpractice cases. This is apparent particularly in the face of the medical profession's thin skin to the legal process.

A patient has a right to confidential communications in the face of a lawsuit protected to the extent of discovery. This rule is commonly referred to as the Petrillo doctrine for the seminal case that bears that name, Petrillo v. Syntex Laboratories, 148 Ill. App. 3d 581, 499 N.E. 2d 952 (1st Dist. 1986). In its relatively short life span, the physician-patient privilege embraced therein has been defined and limited in scope by subsequent case law.

What this translates to in practice is that the defense cannot communicate with a treating doctor without court supervision or plaintiff involvement. No need has been demonstrated to redefine this privilege, particularly in light of Morgan v. County of Cook, 252 Ill. App. 3d 947, 625 N.E. 2d 136 (1st Dist. 1993), which held that a defendant hospital could conduct a private interview with an agent physician who was not named a defendant, and Glassman v. St. Joseph Hospital, 1944 WL 59250 (1st Dist. March 1, 1994), which held that a doctor's ex parte contact with defense attorneys before trial violated the privilege, but did not prohibit his testimony while barring a letter from defense counsel to the physician.

These cases carefully and appropriately define the limits of ex parte contact, mindful of the interests of both parties. And that is how it should be.

But the new rule would go even further and allow defense counsel to write letters to the plaintiff's treating physician with personal commentary and analysis of the case that could serve to persuade a physician to a more favorable version of the facts.

Specifically, Supreme Court Rule 221 sets no limits or guidelines as to what the defendant's attorney may speak about to the plaintiff's doctor or what the treating doctor in turn may talk about to the defendant's attorney, nor does an obligation exist to disclose that these conversations even took place.

Moreover, the proposed rule enables the defense counsel to forward materials to the doctor for the sole purpose of obtaining opinions contrary to the plaintiff's interest on ultimate issues in the case. The defense counsel is thereby allowed to create an adversarial relationship, often where one does not exist.

The common law privilege, statutory privilege and perhaps even constitutional due process rights are severely jeopardized by the adoption of this rule.

Even without the adoption of this rule, defense counsel have been exerting considerable pressure on treating physicians to testify against their patients by communicating through the doctor's own counsel provided by the doctor's insurer, the Illinois State Medical Society -- the same insurer and counsel for the defendant hospital or medical corporation.

Perhaps the best test for the rule may come when the Illinois Supreme Court rules in the consolidated cases of Almgren v. Rush -Presbyterian Hospital, No. 74831, and Testin v. Dryer Medical Clinic, No. 74897. Two different aspects of the rule will be determined.

Testin involves a treating doctor who is also a director and shareholder of the medical corporation that was sued for malpractice. The Illinois Supreme Court is expected to rule on the issue of whether defense counsel should be allowed to talk privately to the corporate officer -- in other words whether agency principles or the physician-patient privilege reigns supreme. In Almgren, the Mental Health and Development Disabilities Confidentiality Act (740 ILCS 110/2 et seq.), which requires judicial review as to the necessity of the disclosure of any confidential matters, may determine the ultimate outcome of that case.

But even resting on Petrillo would compel a decision in favor of confidentiality. Defense counsel can obtain every piece of evidence through conventional methods of discovery and need not resort to vilifying the privilege in its myopic effort to avoid liability.

Significant also is amended Supreme Court Rule 236 which, since Aug. 1, 1992, permits the admission of medical records into evidence provided a proper foundation has been laid. Therefore, all information and evidence is readily available to defendants.

Furthermore, shouldn't the confidences of the patient revealed over the years be protected above all else -- as the legislature has decreed -- not only for this patient, but to assure all future patients of the sanctity of the intimate facts and to assure optimum medical treatment? Despite the clarity of the statute and the fine-tuning by the courts, defense lawyers are not dissuaded from trying to find yet another loophole through the legal process. Rule 221 will not prevent future lawsuits; perhaps it will foster even more.

Nor should Rule 221 be viewed as a magic potion to zap out the physician-patient privilege. Rather, the current cautious case-by-case approach appears to be the more reasoned, rational and workable solution in protecting those who need it most.