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.
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.