When is an attorney prohibited from speaking to employees and agents of the client? Until recently, Illinois law prohibited an attorney for a hospital from speaking ex parte1 with the hospital’s physicians, nurses or staff. (See Roberson v Liu, 198 Ill.App.3d 332, 555 N.E.2d 999, 144 Ill.Dec. 480 (5th Dist. 1990), infra.) This article will explore the pendular history of this rule, as well as the current efforts to modify the rule to afford a measure of fairness to hospitals.
The common law did not recognize a privilege for communication between a doctor and a patient. (See Geisberger v Willuhn, 72 Ill.App.3d 435, 390 N.E.2d 945, 28 Ill.Dec. 586 (2nd Dist. 1979), citing Wigmore on Evidence, Section 2380.) In an effort to protect the confidences between a physician and patient, the legislature enacted what is now 735 ILCS 5/8-802. That statute states, in part: "No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient…except…(4) in all actions brought by or against the patient…wherein the patient’s physical or mental condition is an issue."2
The plain language of this statute enabled attorneys for all parties to discuss a plaintiff’s condition and treatment directly with treating physicians without notice to the opposing party and without judicial supervision. This practice was ended by the seminal case of Petrillo v Syntex Laboratories, Inc., 148 Ill.App.3d 581, 499 N.E.2d 952, 102 Ill.Dec. 172 (1st Dist. 1986), cert. denied, 113 Ill.2d 584, 505 N.E.2d 361 (1987).
The Petrillo court held that ex parte conferences between a physician and an attorney for the patient’s legal adversary violated the public policy of protecting physician/patient confidences. The court acknowledged that a plaintiff’s consent to the disclosure of confidences is implied by the filing of a lawsuit that places the plaintiff’s physical or mental condition at issue, and pronounced that defendants could still obtain a physician’s statements and opinions about the plaintiff, but only through formal discovery methods.
The proscription detailed in Petrillo was extended by the First District in the case of Ritter v Rush-Presbyterian-St. Luke’s Medical Center, 177 Ill.App.3d 313, 532 N.E.2d 327, 126 Ill.Dec. 642 (1st Dist. 1988). In Ritter, the court reasoned that "…the protection afforded a patient’s confidential information by formal discovery procedures is the paramount consideration," and therefore barred ex parte communications even between counsel for the hospital and its staff physicians and employee/residents.
The Ritter court noted, in dicta, that the case did not involve any allegation of medical negligence. The court stated:
When a patient seeks to hold a hospital vicariously liable for the negligence or malpractice of an employee-physician, exclusion of the hospital from the physician-patient privilege would, we believe…effectively prevent the hospital from defending itself by barring communication with the physician for whose conduct the hospital is allegedly liable. (532 N.E.2d at 329-30.)
The holdings of Petrillo and Ritter were tested again in the case of Testin v Dreyer Medical Clinic, 238 Ill.App.3d 883, 605 N.E.2d 1070, 179 Ill.Dec. 56 (2d Dist. 1992). The Testin court upheld a ruling by the trial court prohibiting the Clinic’s attorneys from speaking ex parte with one of the plaintiff’s treating physicians who was also a shareholder in the Clinic. The Court concluded that the prohibition was justified because the physician was not alleged to have been negligent. Since the Clinic was not exposed to liability due to any acts of the physician/shareholder, the Clinic’s attorneys were barred from speaking to that physician outside of the formal discovery process.
The case of Roberson v Liu, 198 Ill.App.3d 332, 555 N.E.2d 999, 144 Ill.Dec. 480 (5th Dist. 1990), expanded Petrillo even further. In Roberson, the court barred ex parte contact between a hospital’s attorney and "health professionals" employed by the hospital. The Roberson case involved a nurse, but both the opinion of the court and the special concurrence indicate that the holding is not limited to nurses.
In 1993, the First District decided a case that offered defense counsel hope that the pendulum was beginning to swing in the other direction. In Morgan v County of Cook, 252 Ill.App.3d 947, 625 N.E.2d 136, 192 Ill.Dec. 176 (1st Dist. 1993), the court reversed a ruling barring a physician from testifying where ex parte contact occurred. However, in Morgan, the physician had been a named defendant, and was dismissed on the eve of trial due to a lack of proper service. The court noted that the physician who engaged in the ex parte contact "…was not speaking to plaintiff’s legal adversary so much as he was plaintiff’s legal adversary." 625 N.E.2d at 141(italics in original).
Due to the confusion and apparent inequity in the case law, and as part of the 1995 Tort Reform Act, the legislature passed 735 ILCS 5/2-1003, which required plaintiffs to sign express authorizations allowing counsel for any party in any case to, inter alia, speak ex parte to the plaintiff’s treating physicians. This amendment was declared unconstitutional by the Supreme Court in the cases of Kunkel v Walton, 179 Ill.2d 519, 689 N.E.2d 1047, 228 Ill.Dec. 626 (1997), and Best v Taylor Machine Works, 179 Ill.2d 367, 689 N.E.2d 1057, 228 Ill.Dec. 636 (1997). The Kunkel court rejected arguments in favor of 2-1003 noting that, even though disclosure of records was limited to certain persons, the information subject to disclosure was unlimited. In short, the Court held, 2-1003 was overly broad, and therefore unconstitutional.
These rulings left defense counsel with the original dilemma posed by Petrillo and its progeny. The plight is very real and is apparent from an overview of just a few real-world scenarios faced by hospital defense counsel. First, Illinois cases impose liability upon hospitals for the allegedly negligent acts of actual and even apparent agents. (See Gilbert v Sycamore Municipal Hospital, 156 Ill.2d 511, 622 N.E.2d 788, 190 Ill.Dec. 758 (1997).) Often, a complaint against a hospital does not specifically name staff members or physicians, instead alleging negligence against various "agents and employees." Although counsel for hospitals are permitted to speak to agents, employees and physicians for whose actions the hospital may be held liable, the complaint may not identify those specific persons. The defense must either risk sanctions by speaking to its clients’ employees and agents, or forgo any contact with an agent or employee whose allegedly negligent acts may be imputed to the hospital.
Second, a hospital may be sued for improperly credentialing the plaintiff’s treating physician, i.e., allowing the doctor to practice at the institution. If a plaintiff brings suit against the allegedly negligent physician and the hospital for issuing credentials to the physician, the hospital’s counsel is left in the precarious position of defending the physician’s allegedly negligent acts without the opportunity to speak to that physician outside of formal discovery.
Third, Illinois courts have held that a plaintiff can, even after the statute of limitations has run, amend a complaint to allege new causes of action against a hospital for the allegedly negligent acts of agents and employees not previously named. (See McArthur v St. Mary’s Hospital, 307 Ill.App.3d 329, 717 N.E.2d 501, 240 Ill.Dec. 408 (4th Dist. 1999).) The McArthur court based its ruling on its determination that, despite any such allegation in the first two complaints, the hospital should have known of the negligent acts of its employees and agents. However, under Petrillo, the hospital’s counsel would have been barred from speaking to those very employees and agents before they were named in the third amended complaint. In short, the hospital was prevented from exploring all aspects of the case and its possible defenses until the plaintiff filed its third amended complaint — after the statute of limitations had expired and the parties had engaged in extensive discovery.
In response to these untenable situations, the legislature passed Public Act 91-526 on August 13, 1999. This law, which on its face is much narrower than the Tort Reform Act’s 2-1003, became effective on January 1, 2000. The Act amended 210 ILCS 85/6.17 to include the following language:
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. (210 ILCS 85/6.17(e).)
The constitutionality of the law is now being challenged in a number of cases.
The new Act allows only counsel for the defendant hospital the right to speak ex parte with physicians or staff employed by or affiliated with the hospital. A hospital’s counsel may now speak to any of the hospital’s physicians or staff, irrespective of whether their acts are allegedly negligent and without the need for costly, time-consuming, and often contentious formal discovery.
The new law passed both the House and Senate without a single vote against it. This impressive lack of dissent does not, however, bind the Supreme Court. The narrowness of the law’s scope should work in favor of its constitutionality. Even so, the Court’s concern for the sanctity of the physician/patient privilege and plaintiffs’ privacy rights are not directly addressed by the law, leaving its future in doubt. If the Court declares the new law unconstitutional, counsel for hospitals will again be left only with the law of Petrillo and its progeny — left to decipher the shifting sensibilities of the courts and treading cautiously in the defense of their clients where a vigorous defense would better serve the clients, society and the ends of justice.
1 Ex parte, for the purposes of this article, is defined as a conference or conversation undertaken at the instance and for the benefit of one party only and without notice to the adverse party and conducted without judicial approval or supervision.
2 735 ILCS 5/8-802 lists ten exceptions. Only the fourth is relevant for purposes of this article.
Richard A. Barrett, Jr. is a Managing Partner of Cassiday, Schade & Gloor’s Wheaton offices. He received his Undergraduate Degree in 1973 from the University of Notre Dame. He received his Law Degree in 1976 from Georgetown University Law Center.
Douglas S. Strohm is an Associate with Cassiday, Schade & Gloor (Wheaton). He received his Undergraduate Degree in 1987 and his Law Degree in 1990 from the University of Iowa.