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McChristian v. Brink

Court of Appeals of Illinois, First District, Fifth Division

September 30, 2016

JACQUELINE McCHRISTIAN, Plaintiff-Appellant,
v.
DALE BRINK, D.P.M., Individually and as an Agent and/or Employee of Dale S. Brink, D.P.M., Ltd., and as an Agent and/or Employee of Performance Foot and Ankle Center, L.L.C.; DALE S. BRINK, D.P.M., LTD., a Corporation; and PERFORMANCE FOOT AND ANKLE CENTER, L.L.C., a Corporation, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 09 L 8204 The Honorable Janet Brosnahan, Judge Presiding.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion.

          OPINION

          GORDON PRESIDING JUSTICE

         ¶ 1 This is a case of first impression concerning the application of the Petrillo doctrine to the unique facts of this case. Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 588 (1986). In this interlocutory appeal, [1] plaintiff claims that the trial court violated the Petrillo doctrine when it permitted ex parte communications between plaintiff's treating podiatrist and the defense counsel of the Performance Foot and Ankle Center, L.L.C., (L.L.C.), which is a defendant in this case and of which the podiatrist is a member.[2] Plaintiff asks this court a question of first impression: whether defense counsel, who represents defendant Dr. Dale Brink and defendant Performance Foot and Ankle Center, L.L.C., is prohibited from conducting ex parte communications with the plaintiff's treating podiatrist, Dr. Timothy Krygsheld, who is also a member, and in the control group, of defendant L.L.C..

         ¶ 2 Plaintiff argues that, under the Petrillo doctrine, ex parte communications are barred between plaintiff's treating podiatrist and defense counsel, in order to preserve the patient's trust and confidence in her podiatrist, as well as to honor the podiatrist's duty as a fiduciary to refrain from helping the patient's legal adversary.

         ¶ 3 Defendants argue that Petrillo does not apply to the treating podiatrist because, as a controlling member of the L.L.C. that is sued, he is not a "third party" as understood by Petrillo, because plaintiff consented to a lesser degree of privacy rights when she sought treatment and subsequently sued the L.L.C., which the treating podiatrist is a member of and where the treating podiatrist is in the control group. For the reasons that follow, we answer the question asked of this court in the negative, with conditions, and we reverse the order of the circuit court.

         ¶ 4 BACKGROUND

         ¶ 5 The issue arises out of a medical malpractice suit which plaintiff Jacqueline McChristian filed against defendant Dr. Dale Brink, as well as defendant Dale S. Brink, D.P.M., Ltd., [3] his personal corporation; and defendant L.L.C., of which Dr. Brink is a partner. All of the doctors in the L.L.C. are podiatrists.

         ¶ 6 The complaint alleges that, beginning in June 2001, Dr. Brink treated plaintiff for bilateral callouses on her feet. On January 29, 2003, he performed a Z-bunionectomy on plaintiff, after which an infection developed in her great left toe. The complaint further alleges that, on or about May 15, 2003, Dr. Brink recommended that plaintiff obtain a second opinion from Dr. Steven Stanos regarding the ulceration of the wounds on her left foot. Initial antibiotic treatment was unsuccessful, and the infection continued to worsen. On May 30, 2003, Dr. Brink and Dr. Timothy Krygsheld, D.P.M., performed surgery to remove the infected hardware that had been implanted in plaintiff's foot during the Z-bunionectomy. The infection did not improve, and on July 14, 2003, the infection necessitated the amputation of plaintiff's great left toe. Subsequently, plaintiff developed chronic regional pain syndrome. Dr. Krygsheld is now plaintiff's treating podiatrist.

         ¶ 7 Plaintiff filed her complaint against Dr. Brink, Dale S. Brink, Ltd., and the L.L.C. on November 17, 2009. On August 25, 2015, Dr. Brink signed an affidavit, which was attached to defendants' supplemental brief in support of their motion for a protective order, averring that he, Dr. Krygsheld, and Dr. Brian Wittmayer are the three managing members of the L.L.C.

         ¶ 8 In their answers to plaintiff's interrogatories, defendants named Dr. Timothy Krygsheld, plaintiff's treating podiatrist, as an expert witness. Defendants stated in their answer that Dr. Krygsheld was expected to testify regarding issues of liability, causation, and damages-all matters related to his care, treatment, observations, diagnoses, and prognoses of plaintiff. Defendants also named Vincent J. Mandracchia, D.P.M., as a controlled expert who was expected to testify to the same issues as Dr. Krygsheld.

         ¶ 9 Defendants' motion for a protective order states that, on August 6, 2015, defense counsel inquired of plaintiff's counsel as to whether plaintiff had any objection to defense counsel communicating with Dr. Krygsheld, and plaintiff objected on the basis that it violated the doctrine set forth in Petrillo, 148 Ill.App.3d at 588. On August 13, 2015, defendants filed a motion for a protective order to allow for ex parte communications between defense counsel and Dr. Krygsheld, plaintiff's treating podiatrist.

         ¶ 10 The trial court issued a written order on September 14, 2015, permitting defense counsel to engage in ex parte communication with Dr. Krygsheld. On September 28, 2015, plaintiff filed for leave pursuant to Illinois Supreme Court Rule 308 to appeal the trial court's grant of the protective order, which this court granted on October 28, 2015. This appeal follows.

         ¶ 11 ANALYSIS

         ¶ 12 This interlocutory appeal requires this court to determine whether defense counsel, who represents defendant Dr. Brink and defendant L.L.C., is prohibited from conducting ex parte[4] communications with plaintiff's treating podiatrist, who is also a member, and in the control group, of defendant L.L.C., and to determine the extent of the ex parte communication.

         ¶ 13 As we already noted, plaintiff argues that, under the Petrillo doctrine, ex parte communications are barred between plaintiff's treating doctor and defense counsel, in order to preserve the patient's trust and confidence in her doctor, as well as to honor the ...


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