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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.

By Jason G. Schutte

Facts:

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).[1]

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.[2]

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.[3]

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.[4] Plaintiff disclosed Dr. Timothy Krygsheld as an expert witness that would testify to various issues, including liability causation and his treatment of plaintiff.[5]

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.[6]

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.[7]

Petrillo Doctrine vs. Control Group Attorney Client Privilege:

Petrillo:

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.”[8]

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.”[9] 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.[10] Furthermore, legal advocacy of a client depends upon the attorney being fully informed by the client.[11] 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.[12]

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.[13] 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.[14] 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.[15] The Burger court described third parties as “parties who otherwise would not possess the information absent disclosure.”[16] 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.[17] Similarly, the McChristian court stated that Performance, an LLC, while not a hospital, provides medical care as a group.[18] Hence, Dr. Kygsheld, being a managing partner of the Performance, was not a third party within the confines of the Petrillo doctrine.[19]

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.[20] 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.[21]

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.[22]

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.[23]

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.[24]

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.



[1] McChristian v. Brink, et al., 2016 IL App (1st) 152674, ¶1-5;

[2] McChristian at ¶6;

[3] Id. at ¶6;

[4] Id. at ¶7;

[5] Id. at ¶8;

[6] Id. at ¶9;

[7] Id. at ¶1;

[8] Id. at ¶21, discussing Petrillo;

[9] Id. at ¶22, citing Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103,120 (1982);

[10] McChristian at ¶23;

[11] McChristian at ¶23;

[12] McChristian at ¶23;

[13] McChristian at ¶22;

[14] See Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 50-60 (2001);

[15] See McChristian at ¶25, citing Burger;

[16] Id. at ¶26;

[17] Id. at ¶26;

[18] Id.;

[19] Id.;

[20] Id. at ¶27;

[21] Id.;

[22] Id. at ¶31;

[23] Id.;

[24] Id.; 

 

Bradshaw v. Barger – Macon County, IL: this is a civil lawsuit revolving around a motor vehicle accident occurring on January 5, 2014 in Decatur, Macon County, Illinois. Kurt Koepe represented defendant Barger. The weather conditions were poor and the roads were covered with ice and snow.  Barger was traveling eastbound on Williams Street and plaintiff was westbound.  The defendant was planning on making a left-hand turn and when he saw the plaintiff’s vehicle he “tapped” his brakes.  Defendant lost control of his car and slid into the westbound lane of traffic.  The vehicles collided yet no tickets were issued in light of the weather/road conditions.  Plaintiff claimed injury to his left knee and an aggravation of a pre-existing back condition.  The plaintiff had previously had a left knee arthroscopy performed in 2007.  The plaintiff presented to the emergency room the day after the accident and then followed up with his family physician.  He was referred to an orthopaedic surgeon who took an x-ray and prescribed physical therapy.  The plaintiff was advised to follow up within a month after the initial visit with the orthopaedic surgeon.  The plaintiff did not return in one month and was discharged from physical therapy for lack of attendance.  Approximately six months after seeing the orthopaedic surgeon the plaintiff was involved in a motorcycle accident.  He went back to see the orthopaedic surgeon who performed a left knee arthroscopy which the physician related to the motor vehicle accident of January 5, 2014.  The plaintiff had $31,000.00 in medical specials but could not verify any wage loss. Plaintiff’s attorney requested a jury verdict of $80,000.00. The jury returned a verdict in favor of Mr. Koepke’s client, defendant Barger, finding that Mr. Barger was not liable.

By: Jason G. Schutte

The Illinois Workers Compensation Act does apply to death/fatality cases. This means that the death of an employee may require an employer to compensate the employee/estate of the employee due to the fatality.

The death must result from ‘accidental injuries arising out of and in the course of” the deceast individual’s employment.  The most common questions for in these cases is whether the death was causally connected to the employment. The employment does not need to be the sole factor in causing the death, it simply needs to be a factor that caused the death. 

Pre-existing conditions (for example, heart conditions) do not preclude recovery under the Illinois Workers Compensation Act because, under Illinois Law, employers ‘take their employees as they find them.’ If the employment aggravated or accelerated a pre-existing condition, it may very well be compensable under the workers compensation laws.  Whether the employment would have killed a normal person is irrelevant to determining whether a death case is compensable under the Act.

A death case may not be compensable if the death had no relationship to the employment.  Also a death may not be compensable if the employee had a pre-existing condition has become so advanced that any activity would have caused death.

The attorneys at Koepke and Hiltabrand have represented many employers and employees in work related injury cases.  Please contact the attorneys at KOEPKE & HILTABRAND to discuss your workers compensation issues.

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