In a 2–1 decision, an Illinois appellate court ruled that, in a medical-malpractice action, a healthcare LLC’s lawyer may hold privileged, ex parte communications with a non-party LLC member who also served as the plaintiff’s treating physician.
The court imposed limitations on the discussion, however, disallowing privileged communications prior to the non-party physician’s damages deposition but allowing privileged communications before his liability deposition. McChristian v. Brink, 2016 IL App 152674 (Ill. App. Ct. Sept. 30, 2016), corrected opinion issued December 22, 2016. Read the decision here.
While not a complete victory for medical-malpractice defense lawyers, they must feel better than their Washington-state counterparts. In 2014, the Washington Supreme Court, in Youngs v. Peacehealth, 316 P.3d 1035 (Wash. 2014), held that the State’s common-law prohibition of defense attorneys’ ex parte communications with a plaintiff-patient’s non-party physicians supersedes the corporation’s attorney–client privilege with its employed physicians.
In Petrillo v. Syntex Labs., Inc., 499 N.E.2d 952 (Ill. App. Ct. 1986), an Illinois appellate court barred ex parte communications between defense counsel and a plaintiff’s treating physician. In McChristian, the plaintiff received treatment from Dr. Dale Brink, a podiatrist and member of Performance Foot and Ankle Center, LLC. Dr. Brink’s treatment allegedly led to a toe amputation, and plaintiff later saw Dr. Krygsheld, also a podiatrist and LLC member, for treatment.
When the plaintiff filed a malpractice suit against Dr. Brink and the LLC (but not Dr. Krygsheld), the LLC’s lawyer sought permission to hold confidential, privileged, ex parte communications with Dr. Krygsheld. As a LLC member, the attorney–client privilege protects those communications, right? But as plaintiff’s treating physician, the Petrillo doctrine bars ex parte communications, right?
The majority saw its task as triaging “two well-established privileges: (1) the doctor–patient privilege and (2) the attorney–client privilege.” After studying the Petrillo doctrine and the privilege’s underlying principles, the majority fashioned a compromise decision.
The majority ruled that the LLC’s lawyer may hold confidential, privileged, ex parte discussions with Dr. Krygsheld because he is a LLC member and his input will assist the lawyer in effectively representing the LLC. However, the LLC lawyer may not hold these privileged communications until after plaintiff deposes Dr. Krygsheld on “the nature and extent of her injuries.” Upon completion, Dr. Krygsheld may communicate privately with the LLC’s lawyer regarding all other aspects, such as the standard-of-care and causation.
In other words, the LLC’s member must sit for a deposition in a suit filed against his company without the benefit discussing his testimony with company counsel. The majority explained its reasoning as follows:
By barring ex parte communications until after the injury deposition, we afford plaintiff the opportunity to secure Dr. Krygsheld’s testimony on damages without coaching by defense counsel, and to have her privacy interests adequately protected without unnecessarily impinging upon Dr. Krygsheld’s right to assistance of counsel for the corporate entity on the liability and causation issue.