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Petrillo v. Syntex Laboratories

OPINION FILED JUNE 26, 1986.

MICHAEL PETRILLO ET AL., PLAINTIFFS-APPELLEES,

v.

SYNTEX LABORATORIES, INC., ET AL., DEFENDANTS (THOMAS F. TOBIN, CONTEMNOR-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Brian L. Crowe, Judge, presiding.

PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 6, 1986.

Thomas F. Tobin, a defense attorney for Syntex Laboratories, Inc. (Syntex), brings this appeal challenging the propriety of a trial court's order finding him in contempt of court. The contempt citation was issued in connection with a product liability action instituted by several plaintiffs against Syntex. Tobin was found to be in contempt of court after he notified the trial court that he would not comply with the court's order barring him from engaging in private, ex parte *fn1 conferences with the plaintiffs' treating physicians.

On appeal, Tobin presents a multitude of arguments supporting his contention that the trial court's contempt citation should be reversed and vacated. These arguments, while numerous, are essentially based on two general theories: (1) a plaintiff, by filing suit and placing his mental and physical condition at issue, waives his physician-patient privilege and therefore cannot object to defense counsel engaging in ex parte conferences with his treating physicians; and (2) prohibiting defense counsel from engaging in ex parte conferences with a plaintiff's treating physician violates defense counsel's first amendment freedom of speech rights.

We affirm the order of the trial court.

BACKGROUND

During 1978 and 1979, Syntex produced and distributed two infant formulas named Neo-Mull-Soy and Cho-Free. In 1980, Michael Petrillo filed suit against Syntex alleging that he consumed Neo-Mull-Soy and was injured as a result. Soon thereafter, Petrillo's action was consolidated, for discovery purposes, with 25 other plaintiffs alleging similar injuries resulting from their ingestion of Syntex' formulas.

On May 18, 1984, while discovery in the consolidated action was taking place, Tobin informed the trial court that he had engaged in ex parte conferences with Dr. Lawrence Tomasi, one of Petrillo's treating physicians. Upon hearing this, the attorney representing the plaintiffs moved the trial court to bar Tobin, or any agent of Syntex, from engaging in any future ex parte conference with any of the plaintiffs' (those 25 plaintiffs joined in the consolidated action) treating physicians. After a hearing on the matter, the trial court granted the motion finding that public policy bars such conferences.

On November 28, 1984, Tobin informed the trial court that he was going to engage in an ex parte conference with Dr. Green, a treating physician for one of the plaintiffs in the consolidated case. Although Tobin acknowledged that the ex parte conference would violate the trial court's May 18, 1984, order, he nevertheless contended that the trial court erred in barring him from engaging in ex parte conferences with the plaintiffs' treating physicians. Based on Tobin's aforementioned conduct, the trial court held Tobin in direct contempt of court. On December 28, 1984, the trial court fined Tobin the sum of $1.

Tobin now brings this appeal.

OPINION

Initially, we note that this is a case of first impression for an Illinois court of review. The Illinois Supreme Court has not yet addressed this issue nor is there any legislation directly on point. *fn2

As noted above, Tobin's arguments urging reversal fall into two general categories: the waiver of the physician-patient privilege theory and the constitutional free speech theory.

Addressing first Tobin's argument regarding the waiver issue, Tobin contends that ex parte conferences between defense counsel and a plaintiff's treating physician should be permitted because: (1) no public policy exists which prohibits defense counsel from engaging in ex parte conferences with a plaintiff's treating physician; (2) prohibiting defense counsel from engaging in ex parte conferences with treating physicians would force Tobin to obtain the opinions of treating physicians through depositions, a costly and inefficient means of gathering information; (3) prohibiting ex parte conferences between defense counsel and a plaintiff's treating physician allows a plaintiff's attorney to "neutralize" experts such as Dr. Tomasi; (4) barring Tobin from engaging in ex parte conferences with a plaintiff's treating physician would allow "unscrupulous" plaintiffs to monitor the development of the defense's case and thereby obtain "enough information to extort unjustified nuisance settlements"; (5) ex parte conferences are not barred by the ethical standards imposed upon attorneys; (6) a plaintiff has no proprietary right to any person's testimony; (7) permitting ex parte discussions will help facilitate early evaluation and settlement of cases leading to a decrease in litigation costs and the conservation of judicial resources; (8) trial courts are empowered to take the necessary steps, such as the issuance of a protective order or the granting of a motion in limine, should any defense attorney abuse the ex parte conference; (9) ex parte conferences are not barred by the Supreme Court Rules or the applicable provisions of the Code of Civil Procedure; and (10) prohibiting ex parte conferences is tantamount to standing in the way of ascertaining the truth.

As a preliminary matter, Petrillo argues that our review should be limited to whether the trial court was correct in finding Tobin to be in violation of the court's order and that we need not address, in answering this inquiry, the propriety of the trial court's order itself.

In People ex rel. Scott v. Silverstein (1981), 87 Ill.2d 167, 429 N.E.2d 483, the supreme court held that a contempt judgment including a fine or imprisonment "is a final and appealable judgment and presents to the court for review the propriety of the order claimed to have been violated." (87 Ill.2d 167, 174, 429 N.E.2d 483.) In the present case, Tobin was found in contempt and fined. Thus, the correctness of the trial court's original order (which Tobin was found to have violated) is properly an issue before this court.

Before addressing the merits of each of Tobin's respective arguments, we believe it critically important to note that Tobin has failed, in both his brief and during oral argument, to identify a single piece of information or evidence which he is able to obtain through an ex parte conference that he cannot obtain via the conventional methods of discovery outlined by Supreme Court Rule 201 (87 Ill.2d R. 201 (oral depositions, depositions upon written questions, and discovery of documents)). In addition, a thorough review of case law from other jurisdictions reveals that in not one instance has a court found that ex parte conferences were necessary in order to permit defense counsel to obtain information that they were unable to obtain through the regular channels of discovery. Thus, it is undisputed that ex parte conferences yield no greater evidence, nor do they provide any additional information, than that which is already obtainable through the regular methods of discovery.

It is with this in mind that we now address the arguments raised by Tobin.

I

Tobin first contends that there is no public policy prohibiting ex parte conferences. We strongly disagree.

• 1 Public policy is found in a State's constitution and statutes, and where those are silent, in the decision of the judiciary. (Smith v. Board of Education (1950), 405 Ill. 143, 89 N.E.2d 893.) An act can be against public policy even though it is not specifically prohibited by a State's statutes or constitution for a finding of public policy can often be inferred from these sources. (Pittsburgh, Cincinnati, Chicago & St. Louis R.R. Co. v. Kinney (1916), 95 Ohio St. 64, 115 N.E. 505.) The meaning of "public policy" is variable for there is no fixed rule to determine which acts are repugnant to it. (Girard Trust Co. v. Schmitz (1941), 129 N.J. Eq. 444, 20 A.2d 21.) Public policy has been defined as, "[T]hat principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good." (129 N.J. Eq. 444, 454-55, 20 A.2d 21, 29.) An act against public policy has also been described as that which "`conflicts with the morals of the time, and contravenes any established interest of society.'" (State ex rel. Smith v. Bowman (1914), 184 Mo. App. 549, 553, 170 S.W. 700, 701.) Public policy, therefore, should forbid, even though such is not expressly prohibited by a State's statute or constitution, that conduct which tends to harm an established and beneficial interest of society the existence of which is necessary for the good of the public.

• 2 In the case at bar, we believe that modern public policy strongly favors the confidential and fiduciary relationship existing between a patient and his physician. We further believe that this public policy arises from the fact that society possesses an established and beneficial interest in the sanctity of the physician-patient relationship. We find this public policy to be reflected in at least two separate indicia: (1) the promulgated code of ethics adopted by the medical profession and upon which the public relies to be faithfully executed so as to protect the confidential relationship existing between a patient and his physician; and (2) the fiduciary relationship, recognized by courts in Illinois as well as courts throughout the United States, which exists between a patient and his treating physician. Because public policy strongly favors both the confidential and fiduciary nature of the physician-patient relationship, it is thus axiomatic that conduct which threatens the sanctity of that relationship runs afoul of public policy. That being so, we believe, for the reasons set forth below, that ex parte conferences between defense counsel and a plaintiff's treating physician jeopardize the sanctity of the physician-patient relationship and, therefore, are prohibited as against public policy. Our determination that public policy prohibits such conferences is bolstered evermore by the fact that no appreciative gain (regarding the evidence to be obtained) can be had through such meetings. Accordingly, we join the growing number of courts which have found that public policy strongly favors the confidentiality of the physician-patient relationship and thereby prohibits, because of the threat posed to the sanctity of that relationship, extra-judicial, ex parte discussion of a patient's medical confidences. See, e.g., Hammonds v. Aetna Casualty & Surety Co. (N.D. Ohio 1965), 243 F. Supp. 793; Horne v. Patton (1973), 291 Ala. 701, 287 So.2d 824; Piller v. Kovarsky (1984), 194 N.J. Super. 392, 476 A.2d 1279, 1281; Doe v. Roe (1977), 92 Misc.2d 551, 400 N.Y.S.2d 668; Humphers v. First Interstate Bank (1984), 68 Or. App. 573, 684 P.2d 581, aff'd in part, rev'd in part & remanded (1985), 298 Or. 706, 696 P.2d 527.

The first indicia of a public policy prohibiting ex parte conferences is that found in the code of ethics which governs the conduct of the medical profession and upon which the public relies to be faithfully executed. The code of ethics for the medical profession is comprised of three separate "prongs": (1) the Hippocratic Oath; (2) The American Medical Association's (AMA) Principles of Medical Ethics; and (3) The Current Opinions of the Judicial Council of the AMA (1984 ed.). These three "prongs" underscore the highly confidential nature of the physician-patient relationship and, perhaps more importantly, affirmatively advertise to the public that a patient can properly expect his physician to protect those medical confidences which are disclosed during the physician-patient relationship.

According to the Judicial Council of the AMA, the Hippocratic Oath was first conceived during the fifth century B.C. It is the oldest statement of ethics governing the medical profession and demonstrates that the confidentiality of the physician-patient relationship is rooted deep in history. The oath states:

"Whatever, in connection with my professional practice or not in connection with it, I see or hear, in the life of men, which ought not to be spoken abroad, I will not divulge, as reckoning that all such should be kept secret."

The AMA's Judicial Council explains: "The Oath of Hippocrates, a brief statement of principles, has come down through history as a living statement of ideals to be cherished by the physician." As a reading of the oath discloses, physicians have, for several hundred years, acknowledged their obligation of keeping in trust a patient's confidences.

The AMA's Principles of Medical Ethics is the second prong comprising the ethics of the medical profession. The current principles were adopted in 1977 and are eight in number. Principle II states in relevant part: "A physician shall deal honestly with his patients and colleagues * * *." Principle IV states:

"A physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences within the constraints of the law."

These principles are the ethical guidelines of the physician and dictate that the physician owes his patient an obligation of honesty as well as confidentiality.

The third prong of the rules comprising the ethics of the medical profession is found in the Current Opinions of the Judicial Council of the AMA. These opinions reflect the AMA's position on how a physician should act in particular circumstances. Section 5.05 of the Current Opinions, for example, states:

"The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree * * *. The physician should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law." (Emphasis added.)

Section 5.06 deals specifically with the attorney-physician relationship and again reiterates the requirement of patient consent:

"The patient's history, diagnosis, treatment, and prognosis may be discussed with the patient's lawyer with the consent of the patient or the patient's lawful representative." (Emphasis added.)

Moreover, sections 5.07 and 5.08 state:

"History, diagnosis, prognosis, and the like acquired during the physician-patient relationship may be disclosed to an insurance company representative only if the patient or his lawful representative has consented to the disclosure." (The American Medical Association, Current Opinions of the Judicial Council sec. 5.08.) (Emphasis added.)

Both the protection of confidentiality and the appropriate release of information in records is the rightful expectation of the patient. A physician should respect the patient's expectations of confidentiality concerning medical records that involve the patient's care and treatment." (The American Medical Association, Current Opinions of the Judicial Council sec. 5.07.)

A reading and comparison of the Hippocratic Oath, the AMA's Principles of Medical Ethics, and the Current Opinions of the AMA's Judicial Council reveals, without any question, the medical profession's obligation to keep communications divulged by a patient to his physician as confidential as possible. Indeed, the Hippocratic Oath speaks of "secrecy," the AMA's Principles of Medical Ethics requires a physician to "safeguard patient's confidences," and the AMA's Judicial Council mandates physicians to keep patient's discussions "confidential to the greatest degree possible." In addition to confidentiality, however, the ethics of the medical profession consistently require patient consent before confidential information is released. Indeed, according to the AMA's Judicial Council, prior consent is "the rightful expectation of the patient." The American Medical Association, Current Opinions of the Judicial Council sec. 5.07.

Thus, confidentiality and patient consent are inextricably tied together; the relationship between a patient and his physician remains confidential only as long as a patient can rest assured that he must give his consent before any of the information disclosed during the physician-patient relationship is released to third parties. Indeed, at the very minimum, the confidential relationship existing between a patient and physician demands that information confidential in nature remain, absent patient consent, ...


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