In McChristian v. Brink, 2016 IL App (1st) 152674, the Illinois Appellate Court for the First District carved out a narrow exception to the Petrillo doctrine, which traditionally prohibits defense counsel from having ex parte communications with a plaintiff’s treating physicians. See Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 588 (1986). In McChristian, the court held that defense counsel in a medical malpractice lawsuit may engage in ex parte communications with a plaintiff’s non-party physicians if: (1) the plaintiff sues a physician practice group; (2) defense counsel represents the practice group; and (3) the non-party physician is part of the defendant’s “control group.”
In McChristian, the plaintiff filed a medical malpractice action against her podiatrist, Dr. Timothy Brink, D.P.M; his personal corporation; and his practice group, Performance Foot and Ankle Center, L.L.C. (“PFAC”). During the course of discovery, plaintiff disclosed her subsequent treating podiatrist, Dr. Timothy Krygsheld, D.P.M. as an expert witness on issues of liability, causation, and damages. However, Dr. Brink and Dr. Krysheld were both managing partners of PFAC. Counsel for Dr. Brink wanted to discuss the case with Dr. Krygsheld and asked plaintiff for permission to do so, but the plaintiff refused.
The First District affirmed an interlocutory appeal of the trial court’s order allowing defense counsel to engage in ex parte communications with Dr. Krygsheld. It reasoned that Dr. Krygsheld was a member of the “control group” of PFAC, since he was one of three podiatrists in the practice group (including Dr. Brink) that could make final decisions on behalf of the organization. In essence, Dr. Krygsheld was a client that counsel for Dr. Brink and PFAC was obliged to represent. Therefore, an attorney-client relationship existed between defense counsel and Dr. Krygsheld, which entitled defense counsel to have privileged ex parte communications with Dr. Krygsheld on issues of liability and causation.
However, the First District added conditions to these ex parte communications to uphold the doctor-patient relationship that existed between the plaintiff and Dr. Krygsheld. The court ordered the parties to first depose Dr. Krygsheld and limit their deposition topics solely to the issue of the plaintiff’s injuries. Defense counsel could thereafter engage in ex parte communications with Dr. Krygsheld about issues of liability and causation necessary to defend Performance Foot and Ankle Center, L.L.C. Following the ex parte communications, plaintiff would then be able to re-depose Dr. Krygsheld on issues of liability and causation. The court also gave the parties the option to work out a discovery plan on their own.
Practitioners should be aware that McChristian applies only in limited and exceptional circumstances. Typically, a patient who sues a treatment provider and the provider’s practice group will not seek further treatment within that practice group, opting to seek post-injury treatment elsewhere. However, as McChristian proves, it is not inconceivable that a plaintiff will continue to seek treatment from other providers within the practice group at issue in the case. In that situation, counsel representing the practice group should identify the members of the “control group”—the final-decision makers—and determine whether the plaintiff’s post-injury treatment occurred with a member of that control group, or with another provider who is outside of the control group. If the provider is within the control group, McChristian would apply and permit ex parte communications in order for defense counsel to adequately defend the practice group. However, if the post-injury treatment provider is not within the control group, then the Petrillo doctrine would still apply and bar any ex parte communications with that individual.