If you thought the Petrillo doctrine was a safe haven for preserving confidentiality between plaintiffs and their treating physicians, think again. The Illinois Appellate Court has taken a chunk out of it. In addressing a certified question regarding the breadth of the doctrine that prohibits defendants from having conversations with treating physicians without the plaintiff present or represented by counsel, the court held that in a medical malpractice case against a podiatrist such conversations are permitted if the defendant is in the practice control group. In McChristian v. Brink, 2016 IL App (1st) 152674 (September 30, 2016), the court answered this question of first impression permitting defense counsel for the podiatrist and his limited liability company (LLC) clinic to conduct ex parte communications with the plaintiff’s treating podiatrist, who is also a member, and in the control group, of the defendant LLC clinic.
It seems it’s all about the corporate control group. The appellate panel made an exception to the Petrillo doctrine for ex parte communications with the individuals who serve as the corporate heads and who are decision makers of the accused healthcare corporation. This likely means that physician practices will be making sure they have a secure corporate structure giving their physicians decision-making roles simply to keep them in that oh-so-tight control group and keeping the lines of communication flowing when litigation ensues.
The court seemingly threw plaintiffs a bone, though. There is a condition upon the communication. Defense counsel is prohibited from having any ex parte communication with a plaintiff’s treating physician until the plaintiff has an opportunity to depose him on issue of the nature and extent of the plaintiff’s injury. The court believes this affords the plaintiff the opportunity to secure damages testimony without coaching by defense counsel and to have the plaintiff’s privacy interests protected without unnecessarily impinging on the treater’s right to assistance of counsel for the corporate entity on liability and causation. This may be more bag of sticks, than bone. Not only is this restriction virtually impossible to police in practice, but it may create the need for multiple depositions and precipitate more fights regarding privilege issues.
Nevertheless, if it isn’t already in your deposition playbook, make sure that you always ask treating physicians whether they have communicated with the defendant or their counsel and the content of those conversations. Depending on the circumstances, you might consider querying whether the treater intends to have such a communication after the deposition. You’ll also need to add questions geared toward discovering the physician’s position in the corporate hierarchy so you can make the argument they are not in the protected corporate control group. As with any sea change, there will be unintended ripple effects and it’s our job on behalf of plaintiffs to prepare as best we can for the rough waters ahead.