Koepke & Hiltabrand announces that attorney Jason G. Schutte has been named a partner in their firm. Jason focuses his practice in civil litigation, specifically in defense personal injury, professional liability and construction defect claims. He frequently authors legal publications on tort law issues. Jason is licensed to practice law in Illinois, Missouri and the Federal Courts for the Central District of Illinois. Koepke & Hiltabrand is a Central Illinois law firm located in Springfield, Illinois.
By: Jason G. Schutte
A common question that employers and injured employees have is whether an injury that cases scarring, disfigurement, etc, is compensable if it causes no discernable disability. Disfigurement is compensable under Illinois Workers Compensation law. The Illinois Workers Compensation Act states:
“For any serious and permanent disfigurement to the hand, head, face, neck, arm, leg below the knee or chest above the axillary line…” 
Disfigurement has been defined by the courts of Illinois as impairment or injury “to the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner.” Obviously, the most common form of disfigurement is scarring, which could result from cuts, abrasions, burns, etc.
If you have a question or concerns regarding a potential workers compensation claim, please contact the attorneys at Koepke & Hiltabrand.
Jason G. Schutte recently published an article discussing personal injury/underinsured motorist claims in cases involving multiple tortfeasors with the Illinois Bar Associaion's November 2016 Trial Briefs Newsletter. Jason is a litigation attorney with Koepke & Hiltabrand and a large portion of his practice focuses in litigating personal injury claims.
McChristian (herein Plaintiff) filed a medical malpractice lawsuit against Dr. Dale Brink, (herein Dr. Brink), his personal corporation, Dale S. Brink D.P.M., Ltd., (Brink Ltd.) and Performance Foot and Ankle Center, L.L.C., (herein Performance).
The complaint alleged that Dr. Brink began treating plaintiff in June of 2001 for bilateral callouses on her feet. He performed a Z-bunionectomy on plaintiff on January 29, 2003. Plaintiff developed an infection in her great left toe following the surgery.
Dr. Brink and Dr. Timothy Krygsheld, D.P.M. performed surgery to remove the infected hardware inserted in plaintiff’s foot during the bunionectomy on May 30, 2003. The infection did not improve necessitating amputation of plaintiff’s left great toe on July 14, 2003. Plaintiff acquired chronic regional pain syndrome post-surgery. Plaintiff continues to treat with Dr. Krysheld as her treating podiatrist.
Plaintiff filed suit against Dr. Brink, Brink Ltd., and Performance. Dr. Brink’s affidavit indicated that he, Dr. Krygsheld and Dr. Brian Wittmayer are the managing members of Performance. Plaintiff disclosed Dr. Timothy Krygsheld as an expert witness that would testify to various issues, including liability causation and his treatment of plaintiff.
Discovery and Petrillo Issue:
Defendants inquired from plaintiff’s counsel whether plaintiff would object to defense counsel speaking with Dr. Krygsheld. Plaintiff objected, asserting that such communication would violate the Petrillo Doctrine. Defendants filed a motion for a protective order to allow ex parte communications between defense counsel and Dr. Krygsheld.
The question for the appellate court was whether defense counsel that represents defendant Brink and defendant Performance is prohibited from engaging in ex parte communications with plaintiff’s treating podiatrist Dr. Krygsheld, who was also a member of the control group of Performance.
Petrillo Doctrine vs. Control Group Attorney Client Privilege:
The McChristian court exhaustively discussed the Petrillo case. The Petrillo court found that “when a treating doctor is not named as a defendant in a medical malpractice suit, and his care and treatment is not the basis of the suit, his ex parte contact with defense counsel is barred, whether or not such contact is harmless or only potentially harmful, due to the mere existence of the doctor-patient relationship.”
Control Group Attorney client Privilege:
The Illinois Supreme Court stated that “an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority, is properly within the control group. However, individuals upon whom he may rely for supplying information are not members of the control group.” Communications between individuals in the control group and corporate legal counsel are privileged.
The court further emphasized that attorney-client privilege includes protection of communications with the attorney and an attorney’s advice to his client. Furthermore, legal advocacy of a client depends upon the attorney being fully informed by the client. Attorney Client privilege also includes a client’s right to formulate trial strategy and a right to have “full and frank consultation” with their attorney.
Analysis of Case:
The court noted that Dr. Krygsheld fell within the control group, hence his communications with counsel should be privileged under the control group doctrine. The determination that Dr. Kryghseld fell within the control group did not end the analysis or address the issues in this case. The court had to determine if either Petrillo or Attorney Client privilege prevailed in this case.
The issues in this situation depend on the limitations of the Petrillo doctrine. Our Illinois Supreme Court previously discussed the limitations of Petrillo in a hospital setting. The Burger court noted that Petrillo limited a treating doctor from engaging in ex parte communications with third parties’ about the plaintiff patient’s medical care. The Burger court described third parties as “parties who otherwise would not possess the information absent disclosure.” Essentially, third parties can be described as people who would not have the information if the medical facility has not provided it to them.
The Burger court found that a hospital was not a third party, within the limits of Petrillo, regarding its own medical information which is created or complied by the hospital’s patient caregivers. Similarly, the McChristian court stated that Performance, an LLC, while not a hospital, provides medical care as a group. Hence, Dr. Kygsheld, being a managing partner of the Performance, was not a third party within the confines of the Petrillo doctrine.
The McChristian court recognized that a plaintiff necessarily waives some of the protections afforded by doctor-patient privilege once they file suit against a doctor. Furthermore, an accused doctor’s ability to defend himself would be greatly limited if he did not have the right to speak with his attorney privately. The court noted that if a doctor in Dr. Krygsheld’s position, as a member of the control group, is prevented from having ex parte communications with their lawyer, then all doctors sued in any capacity would be bound by doctor-patient privilege and barred from ex parte communications with their attorney. The court would not impose such a limitation on defendant physicians. Hence, Petrillo cannot preclude ex parte communications with individuals who serve in the control group of an accused medical facility.
In essence, the court found that attorney client privilege trumped Petrillo in this case. The court emphasized that this case was being decided on its own unique facts. Specific limits were placed on the ruling of the court. The court would allowing ex parte communications with Dr. Krygsheld, however, the ex parte communications would not proceed before certain deposition testimony was obtained from Dr. Krygsheld by plaintiff.
Plaintiff disclosed Dr. Krygsheld as an expert on liability and the nature and extent of her injuries. The plaintiff would be allowed obtain Dr. Krygsheld’s deposition testimony (discovery or evidence) regarding the nature and extent of her injuries prior any ex parte communications with Performance’s attorney. Defense counsel would then have the opportunity to engage in ex parte communications with Dr. Krygsheld regarding the issues of causation and liability.
The court stated that by allowing bifurcation of the testimony between injuries, and liability/causation, plaintiff retained the opportunity to obtain Dr. Krygsheld’s testimony on damages within the concerns of coaching by defense counsel. This division allowed a balance between protection of plaintiff’s privacy interests and the right of assistance of counsel for Dr. Krysheld/Performance.
Effect of Case:
The most important aspect of this case is that the court has clearly established a precedent that Petrillo does not always trump a corporate defendant’s right to consult with counsel. This case provides a roadmap for similar cases in medical negligence/ professional liability cases. The court emphasized that this opinion was limited to the specific factual scenario in this case; however, the case can and will be used for guidance in future, similar situations where there are competing interests of privacy and privilege.
In future cases, counsel, risk managers and adjusters should first evaluate if there are Petrillo interests that would prevent a treating physician or medical professional from engaging in ex parte communications with defense counsel. Next, do you have a competing interest, for example, is the medical professional a member of the control group and subject to attorney client privilege. If Petrillo concerns exist you must determine if opposing counsel objects to the ex parte communications to determine if an agreement can be reached.
If no agreement can be made with the opposition, file a motion for protective order allowing the communication. Counsel could request full ex parte communication without restriction, or suggest a similar bifurcated path as prescribed by the McChristian court. Either way, you have a valid basis to assert that the medical facilities’ interest does not always take a back seat to Petrillo.
 McChristian v. Brink, et al., 2016 IL App (1st) 152674, ¶1-5;
 McChristian at ¶6;
 Id. at ¶6;
 Id. at ¶7;
 Id. at ¶8;
 Id. at ¶9;
 Id. at ¶1;
 Id. at ¶21, discussing Petrillo;
 Id. at ¶22, citing Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103,120 (1982);
 McChristian at ¶23;
 McChristian at ¶23;
 McChristian at ¶23;
 McChristian at ¶22;
 See Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 50-60 (2001);
 See McChristian at ¶25, citing Burger;
 Id. at ¶26;
 Id. at ¶26;
 Id. at ¶27;
 Id. at ¶31;