Petrillo Releases:Unconstitutional
Invasion of Privacy?
By Jonathan S. Gunn and Thomas H. Ryerson
Generally speaking, when a plaintiff files suit and places
their physical or mental condition at issue, he or she is considered to have waived any
privilege protecting such information. However, until recently Illinois defense attorneys
were prohibited from having discussions with health care providers of personal injury
plaintiffs unless the plaintiff’s attorney was present. Petrillo v Syntex
Laboratories, Inc., 148 Ill.App.3d 581 (1st Dist. 1981).
As part of Civil Justice Reform Amendments, the Illinois
Legislature amended 735 ILCS 5/2-1003. These amendments now extend to defense attorneys a
right to interview material witnesses (health care providers) before trial without the
opponent being present, a right always available to plaintiff’s attorneys. These
amendments essentially require a personal injury plaintiff to execute authorizations
permitting defense counsel to confer with named health care providers. Nevertheless, some
Illinois Judges have refused to enforce the "consent or face dismissal"
provisions of the amended Statute. See 735 ILCS 1003 (a)(4).
Opponents of so-called "Petrillo Releases" reason
that by enacting 735 ILCS 5/2-1003, the Illinois Legislature has unconstitutionally
invaded the exclusive province of the Judiciary (judge made law in Petrillo)
and that such interviews amount to an unconstitutional invasion of privacy.
Proponents maintain that Petrillo Releases level the
playing field unfairly tilted by the Petrillo decision (which improperly
interpreted the Legislature’s intent in creating the privilege in 1959) and that the
doctrine of separation of powers requires the courts to recognize new legislative
pronouncements.
On a practical level, both sides fear that some practioners
may attempt to pressure treating physicians into favoring one side or the other.
Plaintiffs argue that permitting defense attorneys
unfettered access to treating physicians will result in coercion and a furthering of the
so-called "conspiracy of silence" wherein physicians are allegedly pressured not
to offer opinions critical of other physicians.
Defense attorneys counter that physicians are allegedly
told that without their cooperation outstanding medical bills will not get paid.
Implicit in either argument is the premise that some
doctors would unfairly "spin" their testimony to assist one side or the other.
I. Power Of The Legislature
Challenges to Petrillo Releases are essentially challenges
to the power of the Illinois Legislature to make and modify laws regarding the nature,
scope, and limitations of the physician-patient privilege. Thus, analysis must begin with
an examination of the limits on the lawmaking power of the Illinois Legislature.
Article IV, section 1 of the Illinois Constitution grants
legislative power to the General Assembly. Any limitation on the power of the legislature
must be clearly expressed in the Constitution itself. Mc Glynn & McGlynn v.
Louisville N.R. Co., 313 Ill.App. 396 (1942) rev’d. on other grounds, Smith
v. Louisville, 381 Ill. 55 (1942). Therefore, in the absence of any clear limitation
of power within the Constitution, even in cases of doubt, the power of the legislature
must be upheld. Id.
While judicial power is vested in the courts, separation of
powers does not create rigid boundaries between the legislature and judiciary. City of
Waukegan v. Pollution Control Board, 57 Ill.2d 170 (1974).
Accordingly, the Illinois Supreme Court has stated:
"It is certainly true that the legislature shares
concurrent jurisdiction with this court to regulate procedural aspects of judicial
practice." De Luna v. St. Elizabeth’s Hosp., 147 Ill.2d 57, 80 (1992).
[emphasis added].
Statutory provisions which govern civil practice are not
uncommon and range from pleading requirements to statutes of limitation, which may
properly operate as conditions precedent to maintaining a particular cause of action. De
Luna v. St. Elizabeth’s Hospital, 147 Ill.2d 57, 69 (1992). Thus, the legislature
and judiciary have joint jurisdiction to regulate procedural aspects of civil practice. As
long as the legislature does not "unduly infringe" upon the judiciary, the
legislature may enact laws which are a condition precedent to maintaining a particular
cause of action. Id.
In the case of 735 ILCS 5/2-1003, the legislature has
essentially created a procedural condition precedent to maintaining a personal injury
action, namely the broadening of the physician-patient privilege to include defense
counsel. See 735 ILCS 5/2-1003(a). This requirement is not unlike 735 ILCS 5/2-622,
which requires a reviewing health care professional’s certificate of merit, which is
also nothing more than a condition precedent to maintaining a medical malpractice action.
The constitutionality of such legislatively imposed conditions precedent have already been
addressed and upheld by the Illinois Supreme Court in De Luna, supra.
Plaintiffs launch a two pronged assault upon Petrillo
Releases.
First, they assert that a personal injury plaintiff has a
fundamental right to privacy regarding his or her medical condition which the legislature
may not remove. This concept can be traced as far back as the Hippocratic Oath which
states: "Whatever, in connection with my professional practice or not in connection
with it, I see or hear, in the life of men, which ought not to be spoken abroad, I will
not divulge, as reckoning that all such should be kept secret". 1 Jones, Hippocrates
164-165 (1923). Pointing to the Fourth Amendment of the U.S. constitution and Article I,
Section 6 of the Illinois constitution (which protect against unreasonable search and
seizures) opponents compare unmonitored defense attorney interviews with health care
providers to warrantless searches by government authorities.
The second prong of the attack reasons that the doctrine of
separation of powers precludes the Illinois Legislature from disturbing a judicial rule
set down by the Petrillo court. They reason that legislatively
"overturning" the Petrillo decision constitutes an unconstitutional
intrusion into the exclusive province of the Judiciary.
II. Standards For Declaring Laws
Unconstitutional
It is law school axiom that the legislature enacts and the
judiciary interprets. The propriety, wisdom and expediency of a statute is exclusively a
legislative question and courts are without authority to declare a statute invalid simply
because they deem it not in the best interest of the state (People v. ex rel. Hill v
Eakin, 383 Ill. 383 (1943)) or because they deem it unwise. Robins v. Kadyk,
312 Ill. 290 (1924).
Accordingly, courts cannot declare a statute invalid unless
it is obviously unconstitutional (People v. Chicago, B. & O. R. Co., 291 Ill.
502 (1920)). Statutes must be considered valid unless the challenger shows, by clear and
convincing evidence, to the contrary. Taylor v. Peoria County, 30 Ill.App.3d 685,
687. Any doubt will be resolved in favor of validity of the challenged provision. People
v Bales, 108 Ill.2d 182, 483 N.E.2d 517, 520 (1985).
III. If The Physician-Patient
Privilege Is A Legislatively
Created Privilege, Does
Separation Of Powers Compel
The Court To Recognize New Legislative Pronouncements?
Often the primary argument leveled against a Petrillo
Release is essentially that the doctrine of Separation of Powers precludes the legislature
from modifying the Petrillo decision as "judge made law". However, the
defense argues that the Petrillo decision was actually a judicial interpretation of
a legislatively created privilege.
a.) Common law.
Under the common law of Illinois, there was no
physician-patient privilege. Geisberger v Willuhn, 72 Ill.App.3d 435, 436-7, 390
N.E.2d 945 (2nd Dist. 1979). Communications between a doctor and patient were not
protected. Parkson v Central Du Page Hospital, 105 Ill.App.3d 850, 435 N.E.2d 140,
141 (1982) . Accordingly, in the absence of a statutory right, many other jurisdictions
have refused to prohibit ex-parte defense conferences with the health care providers of a
personal injury plaintiff. See Doe v Eli Lilly & Co., 99 F.R.D. 126 (D.D.C.
1983); Romine v Medicenters of America, 476 So.2d 51 (Ala. 1985); Arctic Motor
Freight v Stover, 571 P.2d 1006 (Alaska 1977); Green v Bloodsworth, 501 A.2d
1257 (Del. Sup.Ct 1985); Coralluzzo v Fass, 450 So.2d 858 (Fla. 1984); Orr v
Sievert, 162 Ga.App. 677 (1982); Davenport v Ephriam McDowell Mem. Hosp., 769
S.W.2d 56 (Ky. Ct.App 1989); Covington v Sawyer, 9 Ohio App.3d 40 (1983); Moses
v McWilliams, 379 Pa.Super. 150 (1988).
Moreover, Federal law does not provide a physician-patient
privilege in diversity actions, so that state law controls whether Federal courts will
recognize a physician-patient privilege. Filz v. Mayo Foundation, 136 F.R.D. 165
(1991) (citing Prichard-Keank Nam Corp. v. Jaworski, 751 F.2d 277, 2281 n.4 (8th
Cir. 1984) U.S. cert. den. in 472 U.S. 1022 (1985); Lind v Canada Dry Corp.,
283 F.Supp. 861, 863-5 (1968). There is no Federal physician-patient privilege.
The Illinois Supreme Court has stated that where the
legislature grants a privilege which did not exist at common law, the legislature is free
to define the parameters and application of that statutorily created privilege. See
e.g. People v. P.H., 145 Ill.2d 209,223 (1991) ("gang-transfer" provision of
the Juvenile Court Act is not an infringement upon the inherent powers of the judiciary
where the "Act is a purely statutory creature whose parameters and application are
defined solely by the legislature"; See also, Stenger v. Germanos, 265
Ill.App.3d 942, 952 (1st Dist. 1994) (legislature did not usurp judicial function by
enacting statute requiring trial court in specific tort actions to give comparative
negligence instruction to jury, where statute related to modified comparative negligence,
a statutory scheme which displaced the common law rule of pure comparative negligence).
Thus, the legislature acts within its constitutional
authority when it places conditions on legislatively created rights. Strukoff v.
Strukoff, 76 Ill.2d 53, 60-61 (1979).
Since the physician patient privilege did not exist at
common law, how did it become embedded in Illinois jurisprudence?
b.) Creation of the Illinois
Physician Patient Privilege.
On July 22, 1959, the Illinois Legislature amended an 1872
statute governing evidence in civil cases. The 1959 amendment added §5.1, which contained
the newly created physician-patient privilege. See 1959 Ill. Laws §1, p.1940. See
also S.H.A. 735 ILCS 5/8-802, Prior Laws; Ill. Rev. Stat. Vol. 1, p.2163
(1959); While many point to the ancient philosophical writings of Hippocrates and his
Hippocratic Oath as the origin of the physician patient privilege, such writings do not
carry sufficient weight of legal authority to contravene a direct enactment of the
Illinois Legislature.
Even the Petrillo court recognized the
physician-patient privilege to be a creation of the Illinois legislature when it stated:
"It is significant to note, as we stated above, that in creating the physician-patient
privilege and relevant exceptions thereto, the legislature was concerned with balancing
society’s interest in maintaining a confidential relationship between a patient and
his [or her] physician with society’s interest in ascertaining the truth in civil
lawsuits". [Emphassis added].
Petrillo v. Syntex Laboratories, Inc., 148
Ill.App.3d 581, 603-4 (1st Dist. 1986), cert. den. 113 Ill.2d 581 584, U.S.
cert. den. 483 U.S. 1007, [emphasis added]; See also Geisberger,
72 Ill.App.3d 435, 436-7 (2nd Dist. 1979).
In deciding Petrillo, the court correctly sought to
ascertain whether there was legislative intent that a patient, by filing suit, consented
to his personal physician engaging in ex-parte communications with defense
attorneys. Petrillo 148 Ill.App.3d at 603. While in 1986 the Petrillo court
found no such legislative intent, that is clearly no longer the case. There is now direct
evidence that this is indeed the Illinois Legislature’s intent. This intent is now
codified in the Illinois Code of Civil Procedure wherein the legislature pronounced:
"(a) Any party who by pleading alleges any claim for
bodily injury or disease, including mental health injury or disease, shall be deemed to
waive any privilege between the injured person and each health care provider who
has furnished care at any time to the injured person...."
See 735 ILCS 5/2-1003(a) (1997). [Emphasis added].
Moreover, so there would be no doubt, the Illinois
Legislature also provided a list of actions which it deemed to be permissible,
specifically including permission to ". . . confer with the requesting party’s
attorney before giving testimony in any deposition or trial or other hearing...". See
735 ILCS 5/2-1003(a)(4).
In amending §2-1003, the legislature has modified a
statutory privilege which the legislature itself created in 1959. From the face of the
revisions to §2-1003, it would seem clear these amendments were undertaken in response to
judicial interpretation of the prior §8-802 by the Petrillo court and its progeny.
Commentary
The physician-patient privilege did not exist in Illinois
Jurisprudence until a legislative act in 1959. While the Illinois legislature may not have
invented the physician-patient privilege, there is little question that such a privilege
was not recognized by Illinois law until in 1959. While some argue that the legislature is
not free to modify the Petrillo decision, they overlook the fact that Petrillo
is nothing more than a judicial interpretation of a legislatively created privilege.
Many suggest that a slip-trip-fall plaintiff claiming only
physical injury should not have his or her psychotherapist or sexual therapist
interviewed. In such cases there is nothing in the new Amendments which would prevent a
personal injury plaintiff from seeking an appropriate protective order under Supreme Court
Rule 201(c)(1). Truly irrelevant issues are still subject to protection so long as they
are not made relevant by the plaintiff’s claim(s) of injury. In cases of genuine
dispute, in-camera inspection of medical records may be considered prior to execution of a
medical release.
The physician patient privilege is still alive and well in
Illinois. Under subsection (a)(4), disclosure of information gleaned from witness
conferences is limited to parties, attorneys, insurance representatives and
witnesses/consultants whose testimony concerns medical issues.
A personal injury plaintiff with sensitive (but truly
irrelevant) health care treatment can still keep such information private. Conversely, the
ability to interview material witnesses and test legal theories without being monitored by
one’s opponent has now been extended to both sides of the litigation fence, thereby
leveling the litigation playing field.
As a result of these reform amendments, fewer depositions
will be required and the cost of litigation will be substantially reduced. By merely
picking up the telephone (instead of the dictaphone) defense lawyers can now learn the
opinions of a particular health care provider. Under the Petrillo rule, the defense
required leave of court to issue a subpoena, a subpoena, tri-party (or more) scheduling, a
court reporter and a transcript. Now, defense attorneys can learn a treating
physician’s opinions the same way plaintiff’s attorneys can, by picking up the
phone or by face to face meeting. The decision to depose no longer needs to be made in the
dark from often cryptic and illegible medical records. Many countless thousands of dollars
and wasted hours of effort can now be avoided.
Providing equal access to important trial witnesses may
serve to put to rest the cynical view that any attorney, when given access to a witness,
would attempt to exert improper influence.
Jonathan S. Gunn is an Associate at Clausen Miller, P.C.,
Wheaton. His practice is concentrated in Civil Litigation Defense. He received his
Undergraduate Degree in 1981 from Drake University and his Law Degree in 1994 from John
Marshall.
Thomas H. Ryerson is a Principal of Clausen Miller, P.C.,
Wheaton. His practice is concentrated in Civil Litigation Defense. He received his
Undergraduate Degree in 1973 from Northwestern and his Law Degree in 1976 from Loyola
University-Chicago.
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