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In re Medical Malpractice Cases Pending In The Law Division

March 12, 2003

IN RE MEDICAL MALPRACTICE CASES PENDING IN THE LAW DIVISION: (JOSEPH SZFRANSKI, PLAINTIFF-APPELLANT,
v.
ABDOL AZARAN, M.D., VIVEK SACHDEV, M.D., PRIMARY CARE PARTNERS AND INGALLS MEMORIAL HOSPITAL, DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County Honorable Martin S. Agran, Judge Presiding.

The opinion of the court was delivered by: Justice Hoffman

UNPUBLISHED

This is a permissive interlocutory appeal brought pursuant to Supreme Court Rule 308 (155 Ill. 2d R.308). Central to our resolution of each of the five questions certified by the trial court is the interpretation of subsections (d) and (e) of section 6.17 of the Hospital Licensing Act (HLA) (210 ILCS 85/6.17(d),(e) (West 2000)).

However, before addressing the certified questions, we will briefly set out the procedural history of the litigation giving rise to this appeal.

In its decision in Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 759 N.E.2d 533 (2001), our supreme court upheld the constitutionality of subsections (d), (e), and (h) of section 6.17 of the HLA (210 ILCS 85/6.17(d),(e),(h) (West 2000)). After the Burger decision was issued, the plaintiffs in numerous medical negligence actions pending in the circuit court of Cook County filed motions for protective orders, seeking, inter alia, to prohibit, limit or control communications between the attorneys and certain other agents of the defendant hospitals and the medical staff members, agents and employees of those hospitals who rendered medical care to the plaintiffs but whose treatment was not alleged to be the cause of the plaintiffs' injuries (hereinafter referred to as "non-Morgan health care providers" (see Morgan v. County of Cook, 252 Ill. App. 3d 947, 625 N.E.2d 136 (1993)). On January 29, 2002, the presiding judge of the law division of the circuit court of Cook County entered an order designating a single judge to hear all of these motions on a consolidated basis and directed that the cases proceed under a master docket number.

Following a hearing, the circuit court entered a "Memorandum Opinion and Order" in which it denied the plaintiffs' consolidated motions for protective orders with one exception. The circuit court held that, after a suit is filed, only a hospital defendant's attorney may communicate ex parte with the hospital's health care providers who rendered treatment to the plaintiff. The order specifically provided that: "Those parties responsible for peer review, utilization review, quality assurance and risk management are not to continue ex parte communications with patient's caregivers after the filing of a lawsuit." On the defendant hospitals' motion for reconsideration, the circuit court modified its order to provide that hospital employees and agents responsible for peer review, utilization review and quality assurance may continue to communicate ex parte with a patient's caregivers after a suit is filed against the hospital but reaffirmed its prior prohibition against risk managers doing so. In addition to ruling on the defendants' motion for reconsideration, the trial court also found that its resolution of the consolidated motions involved questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from its orders may materially advance the ultimate termination of the litigation. The circuit court set forth in its written order the following five questions of law involved:

"1. After a medical negligence case is filed against a hospital, may hospital counsel communicate ex parte with plaintiff's non-Morgan health care providers?

2. After a medical negligence case is filed against a hospital, may parties at the hospital responsible for peer review, defense of claims, quality assurance and utilization review communicate ex parte with plaintiff's non-Morgan health care providers?

3. Do the HLA and the MCRPRA [Medical Care Reform and Patients' Rights Act (215 ILCS 134/1 et seq. (West 2000))] conflict so as to prohibit enforcement of the HLA amendments relating to ex parte communications between hospital counsel and persons responsible for risk management with non-Morgan health care providers?

4. Do the conflicts between the HLA and the MHDDCA [Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq. (West 2000))], PCCPCLA [Professional Counselor and Clinical Professional Counselor Licensing Act (225 ILCS 107/1 et seq. (West 2000))], and the CSWSWPA [Clinical Social Worker and Social Work Practice Act (225 ILCS 20/1 et seq. (West 2000))] prohibit enforcement of the HLA amendments relating to ex parte communications between hospital counsel and persons responsible for risk management with non-Morgan health care providers?

5. Under the HLA, may those parties responsible for hospital risk management confer ex parte with non-Morgan health care providers after notice that a medical negligence suit has been filed against the hospital?"

The plaintiffs filed a timely application for leave to appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). This court granted leave to appeal and, as the circuit court failed to designate a lead case in these consolidated proceedings, we designated the instant case as such. For the reasons which follow, we answer certified questions 1, 2, and 5 in the affirmative and certified questions 3 and 4 in the negative.

Certified questions 1, 2 and 5 all deal with post-suit ex parte communications between a plaintiff's non-Morgan health care providers and a defendant hospital's legal counsel or those hospital employees responsible for peer review, utilization review, quality assurance, risk management, or defense of claims. In support of their consolidated motions for protective orders, the plaintiffs argued to the trial court, inter alia, that such post-suit ex parte communications: 1) infringe upon the plaintiff's right to privacy as guaranteed under the Illinois Constitution; 2) violate this court's holding in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986); and 3) are contrary to the strong public policy against ex parte communications with a patient's health care providers, which policy is grounded in the sanctity of the physician-patient relationship. They made similar arguments in their application for leave to appeal to this court pursuant to Supreme Court Rule 308. However, in the brief filed with this court, the plaintiff appears to limit the argument to one of public policy as embodied in the principles underlying the Petrillo doctrine.

Our resolution of certified questions 1, 2, and 5 requires that we interpret subsections (d) and (e) of section 6.17 of ...


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