McChristian v. Brink
2016 IL App (1st) 152674
Ill. App. Ct.2016Background
- McChristian sued Dr. Dale Brink, Brink Ltd., and Performance Foot and Ankle Center, L.L.C. (PFAC) for malpractice arising from a 2003 Z-bunionectomy and subsequent infection and amputation.
- After surgery, plaintiff became a patient of Dr. Timothy Krygsheld; Krygsheld later became a managing member (control group) of PFAC.
- Defendants disclosed Krygsheld as a defense expert expected to testify on liability, causation, and damages.
- Defense counsel sought to communicate ex parte with Krygsheld; plaintiff objected under Petrillo (barring ex parte contacts between defense counsel and a plaintiff’s treating physician).
- Trial court allowed ex parte contact; plaintiff obtained interlocutory Rule 308 review.
- Appellate court answered the certified question negatively but imposed conditions: no ex parte communications with Krygsheld until plaintiff deposes him on the nature and extent of her injuries; thereafter defense may communicate ex parte limited to liability/causation and only after the injury deposition is signed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petrillo bars ex parte communications between defense counsel and plaintiff’s treating podiatrist who is a managing member (control group) of the defendant medical L.L.C. | Petrillo bars any ex parte contact to protect the sanctity of the doctor–patient fiduciary relationship and the patient’s expectation of confidentiality. | Petrillo does not apply because Krygsheld is not a "third party" but a control-group member of the defendant L.L.C.; attorney–client privilege and corporate defense needs allow ex parte communications. | Answered in the negative with conditions: ex parte communications are prohibited until plaintiff takes a deposition of Krygsheld on the nature/extent of injuries; after that (and signing per Rule 207) defense counsel may confer ex parte limited to liability/causation. |
Key Cases Cited
- Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (Ill. App. Ct.) (establishing bar on ex parte contacts between defense counsel and a plaintiff’s treating physician to protect doctor–patient confidence)
- Burger v. Lutheran Gen. Hosp., 198 Ill. 2d 21 (Ill. 2001) (interpreting Petrillo and recognizing limited intra-hospital communications; discusses "third party" concept)
- Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103 (Ill. 1982) (adopting control-group test for attorney–client privilege in corporate settings)
- Waste Mgmt., Inc. v. Int’l Surplus Lines Ins. Co., 144 Ill. 2d 178 (Ill. 1991) (privileges and exceptions should be narrowly construed; recognition that privileges carry conditions)