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06/10/94 JAMES B. SCHLUETER v. ROBERT M. BARBEAU

June 10, 1994

JAMES B. SCHLUETER, PLAINTIFF-APPELLANT,
v.
ROBERT M. BARBEAU, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County. No. 89-L-1055. Honorable Robert L. Craig, Judge Presiding.

Petition for Leave to Appeal Denied January 31, 1996.

Chapman, Goldenhersh, Maag

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

James B. Schlueter brought an action against Robert M. Barbeau to recover damages allegedly incurred as a result of an automobile collision between the parties. The trial court entered judgment on the jury verdict in favor of defendant. Plaintiff appeals.

The determinative issue on appeal is whether the trial court committed reversible error when it refused to bar medical testimony as a sanction for defendant's ex parte communication with plaintiff's treating physician, under Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, 102 Ill. Dec. 172.

The parties were involved in an automobile collision on November 30, 1987. In an amended complaint plaintiff alleged that, as a result of the injuries incurred in the accident, he was no longer able to exercise, was unable to lose weight due to the lack of exercise, had increased cholesterol levels due to lack of exercise, and had elevated blood pressure due to stress. Plaintiff claimed that these factors, in combination with a preexisting, undiagnosed heart condition, contributed to his heart attack in December 1991.

On July 29, 1992, only 12 days before the scheduled trial setting, counsel for the parties discussed the fact that defendant had failed to disclose any witness to rebut plaintiff's medical testimony connecting the heart attack to the accident. Defendant's attorney then scheduled the evidence deposition of plaintiff's cardiothoracic surgeon, Dr. Huddleston, which was to be taken on the evening of the first day of trial.

Plaintiff's counsel objected to the late disclosure and deposition of Dr. Huddleston and moved to quash the deposition notice. At the hearing on plaintiff's motion, defendant's attorney assured the court that he had no idea what Dr. Huddleston was going to say. The trial court denied plaintiff's motion to quash.

In his opening statement on the following day, defense counsel referred to three witnesses that he had not disclosed as persons with knowledge of relevant facts, although proper requests for disclosure had been made. As a result, the trial Judge declared a mistrial and told defendant's attorney, "From what you've told the jury [plaintiff] may be entitled to summary judgment based on your opening statement." The court further admonished defense counsel for his reference to Dr. Davis by stating, "you waited tactfully [sic ] until the morning of trial in opening statements to now suddenly say, this Dr. Davis, he won't be here but he treats the partner of plaintiff's lawyer here. I can't believe you did that. I really can't and it's not proper in this trial courtroom." Trial was rescheduled for September 29, 1992.

The record indicates that defendant's attorney and Dr. Huddleston had engaged in ex parte communications about plaintiff, without plaintiff's consent. The extent of the conversation is in dispute. Defendant claims that there was only minimal, insignificant contact between Dr. Huddleston and defendant's attorney. Plaintiff, however, argues that the contact requires sanctions.

The leading case in this area, Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, 102 Ill. Dec. 172, held that ex parte communications between defense counsel and a plaintiff's treating physician are prohibited as against public policy. The court reasoned that public policy strongly supports a patient's right to rely on the ethical obligation of his or her treating physician to protect the fiduciary and confidential nature of the physician-patient relationship by providing medical information to a legal adversary only through authorized methods of discovery. Petrillo, 148 Ill. App. 3d 581, 499 N.E.2d 952, 102 Ill. Dec. 172.

Petrillo stresses that there are two basic reasons for holding ex parte communications violative of public policy. First, public policy favors the confidentiality of the patient-physician communications. Second, nonconsensual conferences between plaintiff's physician and defense counsel violate the fiduciary relationship between physician and patient. ( Petrillo, 148 Ill. App. 3d 581, 499 N.E.2d 952, 102 Ill. Dec. 172.) Therefore, even if no confidential information is divulged, a physician's actions may constitute a breach of his fiduciary duty to the plaintiff. The doctor's fiduciary duty protects against potential harm to the physician-patient relationship regardless of whether any specific disclosures of the patient's confidences were made. Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, 554 N.E.2d 266, 143 Ill. Dec. 331.

In the instant case, when plaintiff's attorney attempted to ascertain whether there had been a breach of the confidential relationship or the fiduciary ...


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