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12/07/88 Helen Ritter Et Al., Co-Ex v. Rush-Presbyterian-St. Luke

December 7, 1988





HELEN RITTER et al., Co-Ex'rs of the Estate of Lois

532 N.E.2d 327, 177 Ill. App. 3d 313, 126 Ill. Dec. 642 1988.IL.1769

Appeal from the Circuit Court of Cook County; the Hon. Daniel J. White, Judge, presiding.


JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.


Plaintiff, Lois Buttles, filed this action in the circuit court of Cook County for personal injuries sustained when she fell off of a transport cart, or gurnee, while a patient at defendant, Rush-Presbyterian-St. Luke's Medical Center (Rush). After trial, a jury returned a verdict for Buttles in the amount of $332,998.15. Rush appeals an order finding it in contempt of court for violating a pretrial discovery order, the judgment for plaintiff and the denial of its post-trial motions. Cross-appellants, Helen Ritter and the Beverly Trust Company, the co-executors of Buttles' estate, Buttles having died shortly after trial, appeal the denial of a fine against Rush pursuant to the contempt finding.

Plaintiff was admitted to Rush for treatment of a bleeding ulcer on July 7, 1986. She was 81 years old at the time. She was initially treated by her internist, Dr. Paul Winter. Because of a substantial loss of blood since July 7, Dr. David Roseman operated on plaintiff to close the ulcer on July 9. After the operation, post-operative problems kept plaintiff in intensive care until July 30. Thereafter, plaintiff was transferred out of intensive care to a general surgical floor for further post-operative recovery. On August 5, plaintiff was taken to the radiology department for C.T. scans of her abdomen. Upon her arrival at the radiology department, a C.T. technician removed her restraints, lowered the rails of her gurnee and left her unattended. Plaintiff fell from the gurnee while unattended, fracturing the facial bone under her left eye and bruising her face. She was found and examined by the radiology resident, Dr. Cheryl Walczak. Dr. Walczak called the surgical resident on plaintiff's floor, who also examined her. Plaintiff was examined on August 6 by Dr. Donna Bergan, a neurologist, and on August 7 by Dr. Kelvin Von Roenn, a neurosurgeon. After plaintiff suffered a seizure on August 22, she was diagnosed as suffering from a subdural hematoma. Dr. Von Roenn operated to relieve the hematoma that day. Plaintiff was transferred to Rush's rehabilitation wing on September 5. Her diagnosis upon admission to the wing was "subdural hematoma." Plaintiff was discharged home on October 15.

Plaintiff filed suit against Rush on November 14, 1986. In preparing for trial, Rush's risk manager interviewed four physicians who had treated plaintiff at Rush. They were: (1) Dr. Jo Lynn Polk, the attending physiatrist who supervised plaintiff's rehabilitation; (2) Dr. Nina Paleologos, the neurology resident on call when plaintiff fell on August 5 and suffered the seizure on August 22; (3) Dr. Bergan, who, in addition to examining plaintiff on August 6, was consulted by Dr. Paleologos regarding plaintiff; and (4) Dr. Antonio Yuk, a neurosurgery resident who also examined plaintiff on August 6 and who was consulted for follow-up care after her seizure. Rush disclosed these interviews to plaintiff through discovery in July 1987. Plaintiff then moved to bar any further communication between Rush and plaintiff's treating physicians, including Rush's employees. The trial court granted the motion on September 9, 1987. Thereafter, the trial court essentially denied Rush's motion to reconsider the September 9 order.

Rush sought leave to appeal the September 9 order but its application was dismissed as moot after the cause was assigned for trial on December 14. When Rush's motions to stay or continue the trial were denied, defense counsel interviewed Drs. Polk, Kluiber, Paleologos, Bergan and Yuk to prepare for trial. Plaintiff moved for sanctions at the start of trial. The trial court found Rush in contempt, assessed attorney fees of $1,050 and costs of $164 against it and barred it from calling the five physicians as witnesses.

In its appeal, Rush contends, in the main, that the trial court erred in prohibiting it from communicating with and calling as witnesses in its behalf plaintiff's treating physicians since they were also Rush's staff physicians. Specifically, Rush asserts that the trial court erred in extending Petrillo v. Snytex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert. denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232, to the circumstances of this case. Petrillo held that ex parte conferences between defense counsel and a plaintiff's treating physician are prohibited as against Illinois public policy because they jeopardize the sanctity of the confidential and fiducial physician-patient relationship. (Petrillo, 148 Ill. App. 3d at 588.) Rush asserts that Petrillo does not apply to this case for several reasons.

Rush first asserts that application of Petrillo to the facts of this case will defeat the purpose of the physician-patient privilege by impeding the effective delivery of health care. We cannot agree. In so arguing, Rush gives too broad a compass to the "continuing dialogue" between a hospital and its medical staff which it claims such application would prohibit. The physician-patient privilege protects the confidentiality of information from a patient necessary to enable a physician to serve the patient. (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.) As such, we simply will not equate the communication of such information amongst a hospital's medical personnel for purposes of treating a patient with its communication by such personnel to the hospital's attorneys for purposes of defending a lawsuit brought by the patient. In short, we believe that, contrary to Rush's assertion, application of Petrillo here will encourage rather then discourage a continuing dialogue between patients and their physicians. Conversely, a holding that Petrillo does not apply would, we believe, greatly discourage unconstrained communication between a patient being treated at a hospital or clinic and the physicians actually treating him.

We also cannot equate communication between a hospital and its medical staff, pursuant to their legal duty under the Hospital Licensing Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 142 et seq.) to ensure the quality of the hospital's medical care, with communication of a patient's confidential information by staff physicians to a hospital's attorneys for purposes of defending a lawsuit by the patient. Similarly, we do not believe, contrary to Rush's reliance thereon, that any agency principles applicable to the relationship between a hospital and an employee-physician outweigh the public policy considerations underlying the physician-patient privilege. Thus, agency principles cannot abrogate the physician-patient privilege.

There is another reason why we do not believe that the legal duty of Rush and its medical staff to ensure that Rush provides quality medical care warrants Rush's inclusion within the physician-patient privilege. Rush's argument in this regard ignores that this case involves only the alleged negligence of a nonphysician-employee of a hospital. As such, any justification to extend the physician-patient privilege to Rush, were ...

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