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Leon Aylward, Jr v. Michael Settecase

April 29, 2011


Appeal from the Circuit Court of Cook County, Illinois, County Department, Law Division. Honorable Diane Larsen, Judge Presiding. No. 2009 L 002558

The opinion of the court was delivered by: Justice Joseph Gordon

JUSTICE JOSEPH GORDON delivered the judgment of the court, with opinion..

Presiding Justice Fitzgerald-Smith and Justice Howse concurred in the judgment and opinion.


Leon Aylward, Jr. (plaintiff), filed the instant medical malpractice action against Michael Settecase, D.O. (defendant), and his employer, Midwest Physician Group, Ltd. (MPG) (collectively, defendants), alleging that they failed to diagnose his lung cancer in a timely manner. During discovery, MPG sought permission to communicate ex parte with various members of its staff who were involved in plaintiff's medical treatment while he was a patient at MPG, but who were not named as defendants in plaintiff's lawsuit. The court initially granted MPG's request but later reversed its decision by granting plaintiff's motion to reconsider and prohibited MPG from engaging in any such contact. Defendants moved for and the trial court certified a question pursuant to Illinois Supreme Court Rule 308. Ill. S. Ct. R. 308 (eff. Feb. 26, 2010).


The following facts are not in dispute. Defendant is employed by MPG and formerly was plaintiff's primary care physician during plaintiff's time as a patient of MPG. During plaintiff's tenure as a patient of defendant, he received care and treatment from several MPG physicians and employees (collectively, MPG employees) who are not joined as defendants in this action.

Plaintiff alleges that he contracted lung cancer in September 2005, while he was being treated by defendant, but there was no diagnosis of that cancer until February 2007. During that period, plaintiff, a 20 year smoker, allegedly complained to defendant about chest congestion, chest pain, and wheezing, but defendant did not order a chest X-ray, refer plaintiff to a pulmonary specialist, or order follow-up visits. This delay is the basis for plaintiff's claim that defendants negligently failed to diagnose and treat his lung cancer in a timely manner.

In his original complaint, plaintiff alleged that MPG "through its agents servants and/or employees" undertook to render medical care to plaintiff. Pursuant to the Illinois Code of Civil Procedure (735 ILCS 5/2-622 (West 2008)), attached to that complaint was the affidavit of a licensed physician and clinical professor of medicine stating, "If [defendant] had ordered a chest X-Ray or other imaging study, [plaintiff's] lung cancer would have been diagnosed, and the appropriate treatment would have been rendered at that time, which more likely than not would have prevented or lessened his subsequent injuries."

As discovery progressed, counsel for MPG wrote plaintiff's counsel in October 2009 requesting permission to contact the MPG employees to discuss their treatment of plaintiff. Plaintiff's counsel objected to this request on the grounds that they were not parties to the case, stating "at this time, the only individual defendant to [plaintiff's] lawsuit is [defendant]. Consequently we decline to give you permission to speak with [the MPG employees] regarding the care and treatment of [plaintiff]." In November 2009, defendants filed a motion for leave to have ex parte communications with the MPG employees. Before the court issued a decision on that motion, plaintiff amended his complaint, removing the language "through its agents servants and/or employees" and instead alleged that MPG, "through the conduct of [defendant], undertook to render care, diagnosis, treatment and other medical services to [plaintiff] for pecuniary consideration." Despite the amendment, the trial court granted defendants' motion and plaintiff filed a motion to reconsider. The trial court granted that motion, denying defendants' request to engage in ex parte communications with the MPG employees. Defendants then requested a certified question to permit them to file an interlocutory appeal pursuant to Supreme Court Rule 308, which the trial court granted. That certified question was:

"Whether counsel for co-defendant multi-specialty clinic, in a malpractice action, can communicate ex parte with its employees whose actions may be the basis for liability against the clinic."


Defendants raise one issue on appeal, namely, that their defense counsel should be permitted to communicate ex parte with the MPG employees whose actions are not currently the basis for liability against MPG, but may be in the future. They contend that they will be prejudiced if they are not allowed to do so under the rationale of Porter, which recognizes that plaintiff could potentially make additional claims of negligence based on the actions of the MPG employees after the close of discovery but before the commencement of trial. See Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 360-62 (2008) (holding that a plaintiff may add a new claim after the statute of limitations period has expired if it bears a "sufficiently close relationship" to the original).

Plaintiff, however first contends that this appeal should be dismissed as purely hypothetical because the events that would lead to the prejudice defendants complain of have not yet occurred, and second, that established precedent clearly holds that MPG may not communicate with the MPG employees. As shall be fully discussed below, we do not agree that ...

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