Court of Appeals of Illinois, First District, Fifth Division
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
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,  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. 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
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
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.,
personal corporation; and defendant L.L.C., of which Dr.
Brink is a partner. All of the doctors in the L.L.C. are
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.
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 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